Detention Without Trial:  Has the Time for
Abolition Come?
(Part 3)

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


The executive is fully convinced that the ISA and the other administrative detention laws are the only effective means by which society could be saved from the pesky wrongful acts of groups or individuals.  It holds the view that they know what is best in the interest of the nation.  While the majority of the fair-minded Malaysians have been pleading for the ISA to be reviewed and re-evaluated in the hope that it will be switched off by Parliament, the executive thinks that the ISA is here to stay as part and parcel of all things Malaysia.  The executive holds the view that in its duty to maintain law and order effectively judicial intervention is deemed unnecessary because questions of national security is best handled executively; by so doing vital security details are not spilled.  Thus under s.16 of the Act secrecy of facts or documents are safeguarded and the courts are powerless to compel disclosure if the Minister deems it as affecting national security.

The executive is also very concerned that in the process of a judicial review, for example, national security details might become public knowledge and this would in turn hamper national interests.  That is why administrative determination has been made to be subjective.  Moreover, the delay involved in the judicial process, the devastating  effect of insufficient evidence in order to bring about conviction all go against executive policy.  Above all, it wants to instil a sense of regret, fear and repentance among those involved in offences envisaged by the ISA and the other kindred legislations mentioned above.

In 1990 the Government announced that the ISA would not be abolished in view of the continued risks against the security of the state.  A former Deputy Prime Minister in explaining the underlying reason as to why the ISA must continue said in an interview that the security forces had advised the government to continue with its implementation.2   He said that he wanted the ISA to subsist so as to “prevent irresponsible people from creating chaos and disorder.”  The government, he said, “would prefer to end the ISA but because national security is a very serious matter, our forces still want the Act to be enforced.”3

The simplistic reaction is no rationale for the continued use of the ISA under its present format.  Surely a government cannot entirely depend on the opinion of its armed forces with regard to such a debilitating statute as the ISA.  It is disturbing to note that the ISA has been suggested to be used against the most unlikely target groups.  For example, songwriters, composers and singers have been suggested the use of the ISA in cases where their works have been illegally reproduced and marketed.4   The Government also announced the possibility of the ISA being used against certain quarters involved in share frauds in May 1992.5   A government backbencher suggested that the ISA should be used against ‘political traitors’ in the country.6   The honourable member obviously equated the term with those who are opposed to his or his party’s political views.  This only shows that there is very little understanding of the purpose of  the ISA, much less of the significance of the rule of law.

In early 1996 the then Deputy Home Minister announced that a review of the ISA was underway especially in respect of the reduction of a detainee’s detention period.  The latest explanation given by the Government in Parliament about a fortnight ago was that for as long as racial and religious threats continue to jeopardise the country the ISA will be detained.8   In gist, the ISA is here to stay.


( i )
Even after 1960 up to 1990, when communist terrorism officially came to an end by virtue of the Bangkok Accord, the ISA could still be given the benefit of the doubt in its continued use.  But now, after 40  years of independence and while stepping on to the next millennium and the brim of being a developed-nation, not to mention our avowed Wawasan 2020, it is truly incongruent and anachronistic to live by the terms of the ISA which in all respects are more severe than when the legislation was reharshed some 43 years ago.  It is time for the Government to honestly lay the pros and cons on the table and decide positively to review the position.  There has been no real subversion within or without the country since the 1969 Emergency although normal crimes have occupied the police in their rightful role to maintain law and order.  Even when an act of subversion occurs the government’s power to proclaim a state of emergency is always at hand by virtue of article 150.
( ii )
There are more than adequate laws at the disposal of the executive to book a person for any form of wrong doing.  Suffice it to mention here that the authorities do not appear to bother about the difference between public order violations and those pertaining to national security.

If a person incites racial or religious disharmony the Sedition Act and the various Syariah enactments could be utilised or amended to suit the objectives.  If this is insufficient still, by all means have a new law tailored for the respective needs but the one salient principle must prevail:  that the right of a person to go to court and establish his innocence must be recognised.  If the fear that certain security details  might be spilled in the process, the solution is to have a special court or a special procedure whereby the pragmatism of a judicial review is allowed.

( iii )
The continued implementation of the ISA has become an excuse for the authorities to administer the country on an emergency basis, announcing at various times that the country is still under severe security threats.  Public outcry and abhorrence of the ISA has been more sufficient in the past as channelled through the Bar Council,9 the Malaysian Trade Unions Congress,10 and concerned citizens.11

( iv )
It is not unknown for the ISA to be politically used to silence opposition.12   Looking at the number of political leaders, academicians and activists who have been detained in the past decades, especially under Operation Lalang, this allegation appears now to be unrebuttable.13   Somehow, perhaps due to the lack of media attention in channelling public opinion, the criticisms these laws receive from time to time have not appeared to be significant.  The government chooses to ignore even parliamentary views against it.14   As we have seen, the ISA in particular has been strengthened over the years since it succeeded the Emergency Regulations 198 in 1960.  Ironically, this has been so since the Emergency was proclaimed to be at an end on 30 July 1960.15   However the ISA’s role in suppressing political, academic and social activities and above all constructive social pressure groups is admittedly successful when judged by reference to the 231 leaders in these fields who have been arrested and detained in the past two decades.16

( v )
Malaysia has to give due respect and recognition to the demands of human rights as entrenched under the various international covenants.  It does not matter if Malaysia has not ratified any of these conventions for it is inherently a member of the international  community by being a member of the United Nations.  The legislation is still an anti-human rights instrument.  Security threats from acts of terrorism, espionage and organised violence can be reduced to normal crimes which the authorities and the courts can handle.  Of course, anticipated sabotage, military or economic may happen at any time in the same way as in other countries.  For this Article 150 may be invoked at any time to unleash the full might of emergency power.
( vi )
The ISA does not justify nor serve the Asian way of life.  It has been said many times that “we must have our own system” or that “we Asians have our own set values”.  At other times leaders in authority were also known to have said that we must not ogle at the West.  The question is: Is the ISA a manifestation of a correct oriental value system?  In essence it does not even conform to the Syariah which calls for strict evidence-adducing from four mukmin before convicting an alleged wrongdoer.

The colonial masters taught us to use draconian laws only during troubled times.  The ISA has served its purpose.  We must innovate.  While the British invoked detention without trial during the life span of an emergency, the authorities now exercise such power in its daily administration.  It is clear that the decision to perpetuate the ISA is purely a political choice.  It wraps three jobs into one – investigator, prosecutor and judge.


The government announced in February 1996 that the ISA would be retained but “amended to reduce the mandatory term of two years to may be six months.17   If this is the only “review” of the ISA, then it is mere lip service.  It hardly settles any score in regard to uplifting freedom and justiciability.

As a matter of basic urgency, at least judicial review should be allowed as per the position prior to 1989 so that while extreme arbitrary power can be checked by the courts, rule of law will continue to imbue positive things about the country.  To restrict the courts only to questions of technicalities pursuant to the dictates of the 1989 amendment is to allow the possibilities of concocted ‘security’ at the behest of the authorities.  This is dangerous.  The right of the detainee to have judicial redress must be real and respected.18

Judicial redress must be allowed albeit in a restricted sense.  The authorities maintain that the courts are not qualified to assess “national security”.  Be that as it may, the one way out is for the Minister to furnish facts by way of affidavits to the judge in chambers and to this end, the judge may be made to assess the “national security” point on a need-to-know basis and he may be compelled by law not to divulge the subject matter even in open court.  By giving the presiding judge the “partial satisfaction” that there was indeed national security at stake  the detention order should be deemed to be subject to judicial supervision.  This is somewhat akin to the position when a Magistrate acts under s.117 of the CPC in the face of a need to arrest and detain an individual for questioning.

The power of detention without trial remains as an exception to the norms of fair procedures.19   Unfortunately, in the area of judicial review the courts cannot now on their own effort free the judiciary from the superimposed will of the executive who translate their imposition through instruments like the ISA because the judiciary’s own lifeline is also controlled by the executive by way of parliamentary sanctions.

In the main, of immediate concern are the following:

  1. The Bar Council, Hakam, Suaram and other NGOs must make a fresh stand on the ISA with a view towards abolishing it.  If this is still rebuffed, at least removal of the bar on judicial review must be pursued in earnest.
  2. There is a need to consolidate all the so-called security legislations in the country into one single Act of Parliament.  At present the authorities literally have unlimited freedom in effecting executive supremacy via a variety of laws.  They simply pick and choose which law to apply.  The spinal thrust must be that judicial review over arbitrary arrest and detention must be put to the works.
  3. A thorough re-evaluation of the ISA and other legislations pertaining to deprivation of basic rights should be carried out so as to accommodate the concept of masyarakat madani or fair and just society which the Government has propagated to create.  A committee of experts comprising the relevant components from within and outside of government is necessary.
  4. Of course, to do away with the ISA altogether is the ideal thing but this is surely far from the executive’s mind considering their assertion on social and political risks involved not to mention the power benefits that are derived in the ISA’s continued use.  In the broader perspective, this is a non-legal question.  This is a question for the people.  Only time will tell as to whether the Malaysian public will be resilient and resourceful enough to weigh the question in favour of an overhaul of their so-called basic rights.
  5. In the meantime steps must be taken for the judicial process in the country to be given top priority revamp in terms of budgetary, manpower and general administration.  Only when the judiciary is seen to be truly independent and efficient in dealing with its own process can matters such as administrative detention be hoped to be judicially supervised.

  1. See Amnesty International Annual Report 1991 p.153
  2. Statement by Ghafar Baba, Deputy Prime Minister as to why the ISA must continue to be enforced: The Star, 2 June 1992
  3. The Star, 2 June 1992
  4. Utusan Malaysia,  4 March 1992
  5. The Star, 2 June 1992
  6. Statement of Shahidan Kassim, MP for Arau, in Utusan Malaysia, 6 November 1992
  7. Statement made by Datuk Megat Junid, The Sun 16 February 1996
  8. See the deputy minister’s reported statement in The Sun, 21 November 1997
  9. The Malaysian Bar has been submitting numerous protest notes and memoranda with regards to violations of human rights and civil liberties to the Malaysian government since the ISA became law in 1960.  However, as a body representing lawyers in Malaysia it has not taken part in demonstrations.  The government has not responded in any significant manner.
  10. See Resolution No.15 of the 29th Biennial Delegates Conference of the Malaysian Trade Unions Congress (MTUC) held on 3 –4 September 1988
  11. Mainly channelled by Aliran (The Malaysian Association for Justice, Freedom and Solidarity).  See Aliran Monthly Vol. 9 No.1 p.20.  On 27 October 1987, the date of Operation Lalang (massive arrests and detention under the ISA) the New Zealand Groups comprising of Malaysian students in New Zealand staged a protest in Wellington.  Prior to 1977, students  were active in staging protests for human rights and justice.  This was curbed with the coming into force of the Universities and University Colleges Act 1971 which completely bars students from being involved in activities that are deemed political and non-academic associations.
  12. See Aliran, ISA & Keselamatan Negara (ISA & National Security), Penang, 1988, pp.19 – 20
  13. Prominent opposition leaders of political parties
  14. For instance, from 1961 to 1990 there have been 126 direct questions from members in the Dewan Rakyat and the Dewan Negara on various aspects of  the ISA and national security.  In the country’s general election in 1990 one of the main thrusts of the opposition was the abolition of the ISA and other “draconian laws.”  See Ke Arah Kesejahteraan dan Perpaduan Ummah, August 1990, Kuala Lumpur.  This portion of the overall manifesto was well-received by the urban voters but appeared to be insignificant in the villages, a fact which may be attributed to the media monopoly in Malaysia.
  15. The Emergency ended on 30 July 1960 by way of Proclamation made by Prime Minister Tunku Abdul Rahman under Article 163 of the Constitution vide L.N.185/1960.  Article 163 which provided, inter alia, how the Emergency Regulations were to be treated upon termination of the Emergency, was repealed by Act A25/1963.
  16. See list of ISA detainees (1970-1990),  Prison Department Kuala Lumpur.
  17. See The Sun, 16 February 1996
  18. For example, see A. Samad Ismail, “ISA: Hormati Hak Tahanan Membela Diri”.  (ISA: Respect the Detainee’s Right to Defend Himself”)  Berita Harian 28 May 1994.
  19. Lord Alexander of Weedon QC, “The Role of the Advocate in Our Society”

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