Detention Without Trial:  Has the Time for
Abolition Come?
(Part 1)

Dato’ Dr. Rais Yatim
Advocate & Solicitor, High Court of Malaya
 

This article highlights issues relating to executive detention and the reasons and  justifications as to why the Internal Security Act 1960 (ISA) should be repealed.  The other major laws on preventive detention are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 and the Dangerous Drugs (Special Preventive Measures) Act 1985.  It also puts into perspective as to why judicial guidance must be made to bear upon administrative incarceration of persons and the right to seek a writ of habeas corpus.
 

1. AIM

THE PAPER AIMS to highlight the pressing issues relating to executive detention and the underlying reasons and justifications why the Internal Security Act 1960 (ISA)2  in particular must now be brought into a new phase of re-evaluation with a view to bringing about its final repeal.  In the event that this proposal is still considered farfetched by the authorities, then at least certain basics must be introduced so that judicial review,3 removed since 1989, could be in the works again.  Freedom for the individual remains just as coveted and cherished as the general freedom and welfare for society at large which the authorities claim to have higher premium.  The paper puts into perspective why judicial guidance must be made to bear upon administrative incarceration of persons who are suspected to have transgressed the bounds of security of the state.

2. INTRODUCTION

The topic under discussion is somewhat a sequel to the Bar Council’s seminar held at the Federal Hotel three years ago4  when we commemorated 1994 Human Rights Day.  There we discussed the topic: Preventive Detention: Has it Outlived its Purpose?  Expectedly, the seminar then concluded, after a thorough mind-searching, that preventive detention had outlived its original purpose.  You will recall, we sent a memorandum to the government imploring that the Internal Security Act (ISA) in particular ought to be repealed.  Whether or not our views were considered it is not clear because we never received a reply.  However, there were a few statements, especially from the then Deputy Home Minister, that the ISA was indeed under review and that the use of the ISA would be restricted to espionage, incitement of race and religion, economic sabotage and falsifying of identification and travel papers. It was also reported in 1994 that the government was amenable to reviewing the ministerially-determined period of detention of two years.6  Although many thought that the minister’s statement was encouraging news, in effect the proposal to tinker with a lesser detention period is of no avail because under s.10 of the ISA the minister concerned is already empowered to shorten the detention period unilaterally if he so desires.  That was the closest we got to in terms of an indirect reaction from the authorities.  Then all was quiet on the common front.

The media reported some weeks ago that 10 persons propagating the Syi’a sect were detained for acts perceived to be prejudicial to the security and or public order of the country.  Before that arrests were made in Sabah of those suspected of issuing forged identity cards as the basis of an illegal commercial transaction.  At one point there was also talk of using the ISA against mobilephone cloners by the Police but thanks to the Home Ministry’s early intervention the plan did not see the light of day.7  As highlighted in the Memorandum before you, gross misunderstanding of the true purpose of the ISA is nothing new.  Hence its possibility for abuse is no longer tentative but established.  One needs only to peruse the list of those arrested and detained in past years.  Illustrative of this is Operation Lalang 1987 where out of the 106 arrested under s.73 of the ISA more than 20 were individuals who were leaders in their own fields who held competing or opposing views vis--vis those in government.

And now, again, to commemorate this year’s Human Rights Day, we put for deliberation the topic:  Detention Without Trial:  Has the Time for Abolition Come?  Critics of the Bar Council, and perhaps those who look at human rights as a big joke may be quick to say that we are harping on an old tune.

So we are.  It is this ‘old tune’ that the Bar Council, NGO’s, democrats and all fair-minded and peace-loving individuals should continue to ‘sing’ for the simple reason that administrative detention without resort to judicial review as envisaged under the ISA is untenable in an environment that is supposed to be safeguarded by rule of law.

Therefore, if there be harsh words against us here today for participating in this commemorative function, we will just reply by saying that for the sake of freedom and justice we will continue to work, to minimise and finally do away with excessive arbitrary power so that a system of check and balance truly exists in a rule of law environment.

3. RESPONSE

In response to the topical question of this seminar, one is tempted to say right away:  “Yes, it is time for the Internal Security Act (ISA) to be abolished.”  We are saying this not in any antagonistic manner.  Neither are we saying it in any political fervour.  We harbour no ulterior motives.  The ISA’s repeal is voiced purely on account of being concerned with adjudicated fairness in determining a person’s wrongdoing.

If there is any law in the country that supports raw power and arbitrariness in extremity, it is the ISA.  If there is any law that categorically shuts out the courts, it is the ISA and its other kindred legislations.8 It is feared, not so much for its hazardous interrogations and ensuing confinement conditions, but rather for the individual’s helplessness in knowing that he cannot assert his basic rights to defend and maintain his innocence in a court of law.  This  becomes more so after Parliament passed amendments to the ISA, EPOPCO and the SPMA in 1989 which have the cumulative effect that no power or act of the minister under the legislations may be brought into question in any court of law.  This denial of judicial review, which includes writ of habeas corpus, was unabashedly copied from Singapore’s amendment to its own ISA following the milestone case of Chng Suan Tze v. Minister for Home Affairs Singapore which decided against the assertion of subjective test in determining whether or not a person was prejudicial against the security of the state.  The amendment spells the worst setback for detainees.  Without the benefit of judicial review to question the minister’s act or omission under the relevant provisions how is a detainee to avail his constitutional rights?  And judging from the general judicial attitude surfaced from local detention cases a detainee appears to be left in the cold with more than constricted rights.

4. GENERAL POSITION

There are three major preventive detention laws in force in Malaysia:  The Internal Security Act 1960 (ISA), the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO), and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DSPMA).  The pattern of their enforcement is broadly similar but the resultant trauma on the detainee differs greatly.  Any person may be detained by the police for up to 60 days on suspicion that he may be a subject fit and proper to be detained under authority of the Minister up to two years each time.  In the case of the ISA, it is suspicion, inter alia, that an act of a person has prejudiced the security of the country or any part thereof; in the case of the EPOPCO it is the perceived criminal act of a suspect which cannot be ordinarily proved in a court of law10  and under the DSPMA it has to do with the police suspicion  that a subject has committed dangerous drug-related offences.11  Although our concern is on detention without trial generally, it is the ISA that merits specific discussion.

5. THE INTERNAL SECURITY ACT 1960 (Act 82) ISA

The ISA, succeeding the Emergency Regulations 1948, was enacted pursuant to Article 149 of the Federal Constitution12  which authorises the passing of legislation notwithstanding its consistency with fundamental liberties contained in Articles 5,9,10 and 13 of the Constitution.  The ISA appears to be more supreme than the fundamental liberty provisions.  Already, Article 5 has been superseded by the Restricted Residence Enactment 1933 (RRE) since the decision in Loh Kooi Choon v Government of Malaysia13  in 1977.  The appellant, who had to wait 4 years before his appeal was heard by the Federal Court, had been arrested and detained under a warrant issued under the provisions of the RRE.  The appellant had not been produced before a magistrate within twenty-four hours of his arrest as required under Clause (4) of Article 5.  The appellant appealed but before his appeal was heard the Federal Constitution was amended whereby Article 5(4) of the Constitution was declared not to “apply to the arrest or detention of any person under the existing law relating to restricted residence”.  This amendment was backdated to Merdeka Day.14  Submission that the amendment was bad on the ground that it destroyed the Constitution’s basic structure was ignored by the court.

The ISA was enacted with the main aim of countering militant communism and subversion against the state.  The Emergency Regulations 1948 had served their objectives and when the  Emergency ended on 30 July 1960, the Emergency Regulations Ordinance 1948 was repealed but its Regulation 17, i.e the provision that provides for detention without trial found its way into Part II of the ISA.  The new law was supposed to be a temporary one but its longevity plus the power-added attributes by way of the denial of judicial review as a right have proven that the Act might indeed be a permanent feature of Malaysian life.  The ISA was supposed to have a temporary life but as history has proven, it has become more sacrosanct and lasting than the liberty provisions of the Constitution.

 As to the temporary nature of the ISA, R.H. Hickling, its original draftsman, commented in 1962:
 

….I must hope that the practice of imprisonment without trial, charge or conviction admitted by the Act 1960 will not be regarded as a permanent feature of the legal and political landscape of Malaya or for that matter of Asia generally.15
The decision to continue to administer the country under draconian laws while the emergency was officially at an end must also be looked at the point of view of the executive who made the political decision.  The fear of recurring terrorism must have occupied the thinking of government leaders then.  In this connection, on 21 June 1960 the late Tun Abdul Razak Hussein,16 Deputy Prime Minister who was also Home Minister then told Parliament that the security of the Federation was still very much in issue on the basis that there was still a need for the people “to be protected from communist subversion.”17   He also gave the assurance that the ISA would be used with the utmost care so as to avoid abuse.18   Malaysians have never doubted the sincerity of Tun Razak and subsequent leaders.  But somewhere along the line the system gets entangled in its own hang-ups and reports of power abuse begin to seep from behind the wire.

Communist terrorism, which was the basis of the ISA’s enactment in 1960, lost its relevance, at least since the 1970s and even more so after the 1989 Bangkok Accord following which terrorism from the communists caeased altogether.19   Hence the need to continue with an emergency-like administration has been even more questionable in view of the total absence of the ISA’s original premise.  But as well know now, where old reasons and justifications evaporate as the nation progressed, new ones have been put in their place.20   The question of abolishing the ISA becomes more and more distant.

The ISA was enacted under the general authority of Article 149 of the Malaysian Constitution which has been designated as the constitutional canopy for “legislation against subversion and act prejudicial to public order.”21   Article 14922  stipulates that for an Act such as the ISA to be valid all that Parliament has to do is to recite that “action has been taken or  threatened by any substantial body of persons, whether inside or outside the Federation” in respect of three main situations falling under its ambit: organised violence against person or property;23 the excitement of disaffection against the Yang Di Pertuan Agong or any government in Malaysia;24 and the promotion of feelings of ill-will and hostility between different races or classes of the population.25

The words “to excite disaffection against the Agong or any government in Malaysia” connote that even political criticisms against the government in power could be construed as being violative of Article 149 and if the Home Minister was satisfied that such action was “prejudicial to the security of Malaysia or any part thereof…”then he is empowered to detain such persons under s.8(1) of the ISA.  The ISA is also applied to any attempt to alter “anything that is established by law.”26   This appears to be so wide a power that almost anything done by way of legal instrument by the government, alberit draconian, may be taken against and deemed valid.  Action taken by virtue of any law passed under the recital of Article 149 also covers public supply and services27  and finally, anything done or about to be done that is considered “prejudicial to public order or security of the Federation” may be acted against.28   Laws falling within any or all of the above provisions are valid notwithstanding that they are inconsistent with the fundamental liberty provisions under Articles 5, 9, 10 or 13 of the Constitution.  The ISA overrides fundamental liberties.

The ISA contains three parts and is divided into six chapters, 86 sections and three schedules.  Part I is devoted to provisions relating to internal security, Part II relates to security areas and Part III pertains to miscellaneous matters.  The entire Act is administered by the Police with the Minister at the apex of it.

Sections 8, 22, 57 and 73 have been the most controversial because of the powers they give to the Minister and the police respectively to effect arrest and detention as well as to allow other acts that are normally invoked during an emergency.  Section 8, echoing the words under Article 149(1)(f) of the Constitution, empowers the Minister in charge of internal security29  to detain any person if he is “satisfied that the detention is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life hereof…..”;30 and if he is so satisfied, he may “make an order directing that person be detained for any period not exceeding two years.”31   The original provision of s.8(1) gave the power to detain to the Yang Di Pertuan Agong and not to the Minister.  This was changed in 196632  when the King’s power was taken over directly by the Minister, a position which even Singapore does not emulate today.33   There was no clear rationale for this “take over” of detaining power by the Minister.  In effect, by virtue of Article 40 of the Constitution, the Agong essentially acts on the advice of the cabinet or anyone acting on its behalf.  In this regard, any detention order signed by the King was really the executive order of the Minister.  The only plausible reason to the change, as elucidated by a former Attorney-General,34  was that with hundreds of detention orders to be signed it was highly inefficacious for the King to be signing a multiplicity of orders every year.

Section 22 empowers the Minister to “prohibit either absolutely or subject to such conditions as he may prescribe” the printing, publication, sale, issue….or possession of such documents or publications.  He may do any of the above35  if he finds that the publication:

(a) contains any incitement to violence;

(b) counsels disobedience to the law;

(c) calculated or likely to lead to the breach of the peace, or to promote feelings of hostility between the different races or classes of the population; or

(d) is prejudicial to the national interest, public order or security of Malaysia.

It is bewildering to note that s.13 of the Printing and Publications Act 198436  (PPA) render somewhat similar effect although worded in a different way.  One might say that in this particular respect there is an area of power overlap between the ISA and PPA.

Section 57 under Chapter III, prescribes the death penalty for offences relating to unlawful possession of firearms, ammunition and explosives within a given security area.  Conviction under this section carries the death penalty.  The Attorney-General is given a wide discretion as to whether to prosecute an offender under s.57 of the ISA or under s.8 of the Arms Act 196037  which upon conviction carries a lesser penalty.38   There have been cases challenging his wide and arbitrary power in prosecuting persons under various instruments.  However, none of these cases has found favour with those who allege that the Attorney-General wields discriminatory powers of prosecution, a state of affairs which has been alleged to contravene Article 8(1) of the Constitution on the ground of discrimination.39

Section 73 gives the police wide powers of arrest without warrant with a view to detaining a suspect under s.8.  All that is required is for a police to have “reason to believe that a person acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.”40   Other offences under the Act are punishable with imprisonment for a term not exceeding three years and are non-bailable.41

Amendments to the Internal Security Act, totalling 20 in all since its enactment in 1960, contain an array of enhanced powers for the Minister as well as for the Police.42   In all these amendments the trend has not been to strengthen the rule of law but to add on to the already formidable array of executive powers under the Act as well as those in other legislations.

[Continues]

 ENDNOTES

  1. Presented at the Bar Council Seminar on 6 December 1997 in Kuala Lumpur to commemorate the United Nations Human Rights Day
  2. Act 18 of 1960: Received Royal Assent on 17 July 1960
  3. Under the newly amended s.8(c) of the ISA, judicial review includes proceeding instituted by way of mandamus, certiorari, declaration, injunction, writ of habeas corpus and any other suit arising out of any act of the Yang Di Pertuan Agong or the Minister.  [Inserted by amendment A739/1989.
  4. The seminar was held on 10th December 1994
  5. The Star, 6 February 1996
  6. Ibid.  Under s.8 of the Internal Security Act 1960 (Act.82)(ISA) the Home Minister is empowered to detain a person up to two years each time if he deems that that person is prejudicial to the security of Malaysia or having the propensity to violate any of the conditions spelled out under the section.  See also Art.149 of the Federal Constitution.  Under s.8(7) the Minister is empowered to extend the initial two-year detention period by a two-year increment each time.  He may also vary the grounds of the extended detention.
  7. Statement made by Deputy Minister for Home Affairs in the Dewan Rakyat on 20.11.97.  See The Sun, 21.11.97
  8. Emergency (Public Order and Prevention of Crime) 1069 (EPOPCP); Dangerous Drugs (Special Preventive Measures) Act 1985 (DDSPMA); Restricted Residence Enactment 1933
  9. (1989) 1 MLJ 69.  In this case Wee Chong Jin CJ for the first time agreed that the objective test was the proper yardstick to utilise in determining the validity or otherwise of executive detention.
  10. Section 3(2) the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO)
  11. Section 6 of the Dangerous Drugs (Special Preventive Measures) Act 19895 (DSPMA)
  12. Henceforth referred to as the  Constitution
  13. (1977) 2 MLJ 187.  See Chapter 3 ante
  14. See s.4 Constitution (Amendment) Act 1976 (A354)
  15. H.R. Hickling, “The First  Five Years of the Federation of Malaya Constitution”, (1962) Mal. L.R.183
  16. He was also then the Deputy Prime Minister.  Razak’s objective in enacting the ISA has not been modified over the years.  The legislation was to facilitate certain extraordinary powers to combat terrorism and organised violence prejudicial to national security.  It was never intended to be used as a political tool.
  17. Parliamentary Debates, Dewan Rakyat 21 June 1960, Clmn. 562
  18. Ibid
  19. The Bangkok accord of 24 December 1989 was entered into by Malaysia, the CPM and the Thai Government concerning the remaining communist terrorists within the Malaysia-Thai border.
  20. See below.
  21. See heading of Article 149.  The ISA, like the Emergency (Public Order and Prevention of Crime) 1969 (EPOPCO), is also facilitated by a set of rules and regulations that cater for a variety of matters pertaining to persons under detention.  Two of these Rules are the Internal Secruity (Detained Persons) Rules 1960 and Internal Security (Advisory Board Procedure) Rules 1972.
  22. The merdeka version of Article 149 was under Act 10/1960, w.e.f. 31 May 1960.  The article has been amended twice since then: Act A442/1978 and Act 514/1981.
  23. Article 149(1)(a)
  24. Article 149(1)(b)
  25. Article 149(1)(c)
  26. Article 149(1)(d)
  27. Article 149(1)(e): w.e.f. 31 December 1978 inserted under s.5 A442/1978
  28. Article 149(1)(f) w.e.f. 31 December 1978 inserted under s.5 A442/1978. See Federal Constitution, (Reprint No.1/1988), Government Printer, Kuala Lumpur p.139
  29. The Minister in charge of internal security in Malaysia is officially called the Minister of Home Affairs or Menteri Hal Ehwal Dalam Negeri  in Malay.  It has been the practice that this portfolio be held by a senior member of the Cabinet.  Since 1986 the portfolio has been held by the Prime Minister, Dato’ Seri Dr Mahathir Muhamed who entrusts much of the day-to-day duty to his Deputy Home Minister.
  30. Essential services as defined under s.8(2) of the ISA means “any service, business, trade, undertaking, manufacture or occupation included in the Third Schedule.”
  31. The detention order made by the Minister is administratively known as the D.O. which stands for Detention Order.  The D.O. is normally submitted in triplicate to the Minister for signing.  In 1991, as a result of an oversight, the Minister signed only the first copy of the respective D.Os for some 200 detainees.  The respective second and third copies of the D.Os, meant for the detainee and the superintending officer in the Prisons Department were not signed.  This caused the release of the 200 detainees.  See The Star 14 May 1992.
  32. See Internal Security (Amendment) Act 1965: Act 25/1966
  33. From Malaysia Day in 1963 until Singapore’s exclusion from Malaysia in 1965, the ISA was part of the laws of Singapore.  Since 1965 Singapore has been having its own version of the ISA but still largely in pari materia with the Malaysian version.  The opening words of s.8(1) of the Singapore ISA say “If the President is satisfied…”  However, the words “economic life” as found under the Malaysian proviso have not been imported into the Singapore version.
  34. Discussion with the late Tan Sri Abdul Kadir Yusof on 18 May 1976.  See Notes in File: TMU (Timbalan Menteri Undang-Undang/Deputy Minister for Law) 025/76 “Akta Keselamatan Dalam Negeri.”
  35. To effect such an order he has to gazette it either  concurrently with the date of the order or selecting a definite date.  Since the coming into force of the ISA in 1960 there have been thousands of publications prescribed by order of the Minister under s.22.  These were contained in the various Internal Security (Prohibition of Publications) Order for each given period.  The Malay Dilemma, written by the present Prime Minister in the aftermath of the 1969 racial riots and containing criticisms against the then government’s handling of the crisis was banned from circulation in 1970.  The ban was only lifted when Dr. Mahathir Mohamed became Prime Minister in 1981.  See Internal Security (Prohibition of Publications) Order 24/1970.
  36. Act 301 c.i.f. 1.9.84 PU(B)364/84.  Section 13(1) of the PPA has the effect of saying that the Minister is empowered to revoke a printing or publication permit if he finds that a publication is “prejudicial to public order or national security”.
  37. Act 06 of 1960
  38. Under s.8 of the Arms Act 1960 conviction of the offence of unlawful possession of arms carries a maximum penalty of 7 years or a M$10,000 fine or both.  The Attorney General may also exercise his discretion, in relation to a scheduled offences, whether to prosecute an offender under the Firearms (Increased Penalties) Act 1971 of which s.3 thereof prescribes the death penalty for the discharging of a firearm with intent to cause death.
  39. For representative cases that challenged the Attorney General’s wide and discretionary powers of prosecution, see Long bin Samat v. Public Prosecutor (1974) 2 MLJ 152; Public Prosecutor v. Su Liang Yu (1976) 2 MLJ 128; Johnson Tan Hang Seng v. Public Prosecutor (1977) 2 MLJ 66; Datuk Haji Harun bin Idris v. Attorney General of Malaysia (1977) 2 MLJ 155.
  40. Internal Security Act 1960 s.73(1)(b)
  41. Ibid s.72(2)
  42. The relevant amendments are as follows:  Act 9/1962: The Internal Security (Amendment) Act 1962; L.N.232/1963: Modification of Laws (Internal Security and Public Order)(Borneo States) 1963; L.N. 284/1963; L.N. 334/1964 Modification of Laws (Internal Security Act 1960) Order 1964; L.N. 335/1964 Emergency (Internal Security) Regulations 1964; Act 20/1964 Internal Security (Amendment) 1964; l.N.69/1965 Modification of Laws (Internal Security Act 1960)(Amendment) Order 1965; L.N.110/1965 Emergency (Internal Security and Detention Orders)(Amendment) Regulations 1965; Act 25/1966 Internal Security and Detention Orders)(Amendment) Regulations 1965; Act 25/1966 Internal Security (Amendment) Act 1966; P.U. 415/1966 Resolution of the Senate (Dewan Negara) of 5.9.1966 made under s.83 ISA; P.U. 416/1966 Resolution of the House of Representatives (Dewan Rakyat) of 22.81966 pursuant to s.83 ISA; Act 7/1969 Registration of Criminals and undesirable Persons Act 1969; Ordinance 4/1969 Emergency (Internal Security); P.U.(A) 186/1969 Modification of Laws Ordinance 1969; Act A61/1971 Internal Security (Amendment) Act 1971; P.U.(B) 336/1975 Corrigendum to s.83 item 10 & 11; Act A705 Internal Security (Amendment) Act 1988; and Act 739/1989 Internal Security (Amendment) Act 1989.  The 1989 amendment effected the taking away of the courts’ power of judicial review in cases involving arrest and detention made by the authorities under the ISA.

  43.  

     
     

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