Dato’ Dr. Rais Yatim
Advocate & Solicitor, High Court of Malaya
8. FROM THE KEYHOLE OF THE EXECUTIVE
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.1 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.7 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.
9. WHY THE ISA MUST BE REPEALED OR AMENDED
( 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.
10. CONCLUSION & SUGGESTIONS
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: