Dato’ Dr. Rais Yatim
Advocate & Solicitor, High Court of Malaya
6. DECLARED ADVERSITY OF THE ISA
Steep criticisms on the ISA have been numerous. It is helpful to sample a few. In the words of the International Commission of Jurists (ICJ) the ISA is “a comprehensive and exhaustive legislation for the executive”.1 A local MP had declared that “This infernal and heinous instrument has been enacted…..at a time when the Emergency was supposed to be over. Then it promptly proceeds to embody all the provisions of the Emergency Regulations which during the Emergency had to be re-enacted every year, but now it is written into the statute book ad infinitum…”2 Even Prime Minister Dr. Mahathir Mohamed, while being a government backbencher in 1966, admitted that “no one in his right senses like the ISA. It is in fact a negation of all the principles of democracy.”3
In Malaysia, as partly indicated in the opening remarks of this paper, apart from detention under the ISA, there are several other types of executive legislation among which are those connected with public order and the prevention of crime,4 restricted residence,5 dangerous drugs,6 immigration confinement,7 police powers,8 the control over affairs of student activities9 and a host of other overriding executive powers over the civil rights of the individual. In fact powers of arrest and detention under these instruments are so varied that one finds areas of overlap and duplication. While the RRE’s s.2(1) is the mainstay for restricting a subject to a specific area or district pursuant to a restricting order of the Minister, this sort of restriction is also allowed with extra amplifications under s.8(5) of the ISA.10 The Public Order (Preservation) Act 1958 (POPA)11 for instance, empowers the police to arrest and detain a suspect for 24 hours without warrant.12 Under the Criminal Procedure Code a suspect may also be arrested and detained by the police for up to 15 days with the authority of the magistrate.13 Although the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO) is an emergency instrument promulgated by the Yang Di Pertuan Agong under s.2 of the Emergency (Essential Powers) Ordinance 196914 (EEPO), it has at its disposal powers of arrest and detention that are similar to those under the purview of the ISA. The EPOPCO is an equally draconian instrument in that police and ministerial powers are similar to those enforced under the ISA. The only difference is in their target groups: the ISA is in the main activated against offences related to security while the EPOPCO is mainly concerned with hardcore crimes which do not have sufficient evidence for the purpose of prosecution in a court of law. However, these target groups are not well-defined and thus the authorities may indeed swap the political group with the criminal one if the whim so exists.
In The Cheng Poh v. Public Prosecutor15 the Privy Council decided that the law-making power of the Yang Di Pertuan Agong under s.2 of the Emergency (Essential Powers) Ordinance 1969 (EEPO) during normal peace time (when Parliament was sitting) was found to be ultra vires the Constitution. Thus, all subsidiary legislation made thereunder including the disputed Emergency (Security Cases) Regulation 1975 (ESCAR) were bad in law. The Government revalidated the EEPO and all subsidiary laws passed thereunder16 by way of an Act of Parliament called the Emergency (Essential Powers) Act 197917 (EEPA). The EEPA, being a general blanket endorsement for all things done and omitted in the course of an emergency re-created the emergency ‘creatures’ including the EPOPCO and the ESCAR and thus projects the notion that the country is still under emergency rule.
The ISA, however, remains the most controversial and repressive of these laws in terms of the unbridled powers accorded to the respective authorities. Indeed the severity of the ISA is such that it could easily pass as a wartime legislation, comparable to the infamous Regulation 18B of the Defence of the Realm Act 1939 in the United Kingdom that made Liversidge v. Anderson18 the cornerstone of the subjective determination of executive power in case involving the security of the State.
At this juncture it is constructive to offer some illustrations
in regard to those who had suffered as detainees without trial. While
thousands have their names on record as detainees for the period 1960 up
to the present, few had come forward to share their experiences behind
the wire.19 Whilst there have been few reported
cases involving torture during Ministerial detention under s.8, “tales
of torture” while undergoing police detention under s.73 have been
quite rampant.20 Police brutality has been alleged
to have taken place.21 The following account may
be regarded as being typical:
Interrogation techniques were altered to humiliate and frighten the detainees and to identify their weaknesses. Verbal abuse were common. Some were threatened with physical harm to themselves or to their spouses. Others were stripped naked during interrogation, or forced to crawl on the floor, collecting cigarette butts purposely scattered there. One was repeatedly made to walk blindfolded so that he would bump into walls.22
One detainee, a convert to Christianity, recalled, “Various attempts
were made…to coerce or induce me to renounce Christianity and to convert
back to Islam against my will.”23 Another detainee
described the long hours of interrogation as “almost non-stop for 24 hours
in the first four days of [his] arrest with hardly any rest.” Sitting
on a stool, he was forced to write for more than 80 hours [in four days]
on events in his life, some of which occurred more than 13 years previously.24
Prof Dr. Syed Husin Ali, a notable university professor, detained for about
six years under s.8, described his arrest as involving the police “kicking”
his front door in when he did not hurry enough in opening it. He
was spat upon and received inhuman treatment purely on account of his involvement
in a political party that opposed the government.25
In a graphic recount of his detention horror in 1994, the university don
said that he was forced to announce his affiliation to communism.
Of this and incidental matters connected with his detention, he said:
They wanted me to use the communist bogey on Mahathir and Musa……they told me I would be released if I implicated Mahathir and Musa. They slapped me, denied me sleep, spat in my face, told lies about my wife and even placed a pistol in front of me. It was a terrible lie and being a Muslim, I would not be part of it.26
Two trade unionists were detained under s.8 for almost 12 years
for
alleged pro-communist activities.27 Kassim Ahmad,
a noted academic and political leader was denied legal representation during
the first two weeks of his arrest. The authorities also took away
his Quran and prayer mat.28 The general conditions
of a police lock-up, used in the course of police interrogations has been
described as “dirty, congested and degrading.”29
Indeed description of the general conditions in a Malaysian police cell
have never been complimentary.
A former cabinet minister who was detained in 1970 described his sojourn in a Kuala Lumpur lock-up prior to detention proper as “most appalling” in that he was made to sleep on a bed hardened by coconut husks with no blanket.30 There is a considerable literature consisting of personal account’s of detention in the past decade by ex-detainees. The collegiate of notable ex-detainees in Malaysia is an ever-enlarging circle. Students, lecturers, writers, lawyers, trade unionists and even Ministers have either written personal accounts of their experiences under detention or alternatively related them to others.31
7. GENERAL JUDICIAL ATTITUDE
The basic attitude of judges vis-à-vis detention cases is that
they cannot go beyond the written word of the law. What Parliament
wants in the cold printed word of the statute the law lords must given
effect to them. Although this rule is age-old, this was reiterated
nine years ago by Edgar Joseph Jr. in Koh Yoke Koon v. Minister for
Home Affairs & Anor.32
"In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.”
However, when high precepts such as the rules of natural justice
are denied or when canons of interpretation are misled the courts have
proven to be amenable to granting the aggrieved party the freedom sought.
The right to seek a writ of habeas corpus pursuant to arrest
or detention had always been held to be sacrosanct and in top priority
and our courts have not flinched from this duty. In Yeap Hock
Seng v. Minister of Home Affairs Malaysia33 Abdoolcader
J said:
The grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari, prohibition and mandamus. It is a writ of right…”34
However,, since after the denial of judicial review of ministerial
acts under the ISA in 1989 it would appear that habeas corpus
applications have been greatly minimised. This has been so on account
of the fact that after 1989 only procedural matters connected with the
detention may be questioned in court.
The right to be heard pursuant to police arrest and interrogation as permitted under Article 5(3)35 appears to be intact although habeas corpus application with a view to the release of the detainee cannot be entertained simply because the right to consult a lawyer of the detainee’s choice was refused or delayed. In the Singapore case Lee Mau Seng v. Minister for Home Affairs Singapore36 it was emphasised that “…the right to consult a legal practitioner of one’s choice is an entirely different concept from the concept of detention without trial and they can exist together.”37 This decision has been followed in Malaysia over the years for the broad proposition that the detainee’s right under Article 5(3) is intact despite being detained under the ISA. However, the right to consult lawyer of one’s choice cannot be allowed immediately upon arrest. The courts have given the police a reasonable time to interrogate and collect evidence before a lawyer is allowed to counsel. This is the rule established in Ooi Ah Phua v. Officer-in-Charge, Criminal Investigation, Kedah/Perlis.38 However, since Ooi’s case in 1975, lawyers have been almost invariably refused the right to see his detenu client within the 60-day interrogation period. The rampant reason given has always been that the police are still investigating the detenu and therefore counsel has to wait.
The stand that the courts cannot go beyond a valid legal detention order has been consistently followed over the years, at least since Karam Singh v Menteri Hal Ehwal Dalam Negeri.39 This case is the ‘transfer mould’ of the decision in Liversidge v. Anderson,40 a war-time case that established the principle that once the minister determines the necessity to detain a subject pursuant to a valid detention order, the courts could not go behind that order even though the adduced grounds in court for detaining a person are not the same as those in the original detention order. It also stood for the proposition that the subjective finding of the minister could not be challenged unless it was given in bad faith.
In 1988, while still adhering to the subjective test, the Supreme Court,
led by Salleh Abas LP clarified the scope of the ISA. In Inspector-General
of Police v. Tan Sri Raja Khalid bin Raja Harun41 the
appellant, a bank director, being investigated for breach of trust, was
detained under the ISA. The Supreme Court dismissed an appeal by
the IGP who objected to the grant of habeas corpus by the High Court
below on the ground that it was incumbent upon the court to go beyond the
general grounds of the detention. In this case the court took cognisance
of the facts relating to the arrest and detention of the appellant which
were freely given by the police and the trial judge found it ‘incredible’
for the detainee to be subject to detention under the ISA. The Supreme
Court appeared to be making a distinction between grounds and facts of
detention. Where, as in this case, the facts were freely given, the
detaining authority could later preclude the court form inferring from
them. The allege offence of criminal breach of trust could not be
the basis for the appellant’s detention and therefore it was found to be
outside the scope of the ISA. Likewise, in Minister for Home Affairs
Malaysia v. Jamaluddin bin Othman42 Hashim Yeop Sani
SCJ also upheld a High Court judgment which had granted habeas
corpus to the applicant who was alleged to be involved in converting
some Malays to Christianity because the grounds were insufficient to fall
within the scope of the Act. His finding on Article 11 is sterling:
The guarantee provided by article 11 of the Federal Constitution, that is, the freedom to profess and practice one’s religion, must be given effect to unless the actions of a person go well beyond what can normally be regarded as professing and practising one’s religion.43
The courts were vigilant enough to ensure freedom when the grounds
of arrest were found to be factually incorrect. In Karpal Singh
v. Menteri Hal Ehwal Dalam Negeri44 Karpal Singh was
slapped with 6 grounds upon his arrest under s. 73(1) of the ISA.
One of the grounds was found to be factually wrong because on the date
he was supposed to have made ‘the inciting speech’ Karpal was elsewhere.
Peh Swee Chin J in allowing the application outlined three exceptions to
the non-justiciability of the Minister’s mental satisfaction in cases of
this kind. They were (a) mala fide, (b) the stated grounds
of detention not being within the scope of the enabling legislation and
(c) the failure to comply with a condition precedent. He determined
that mala fide does not only mean a malicious intent. It normally
covered a situation where a power was exercised for a collateral or ulterior
purpose, i.e. for a purpose other than the purpose for which it is professed
to have been exercised.45 He elaborated:
Thus a court cannot inquire into the sufficiency, vagueness and relevancy of any grounds of such detention vide Karam Singh’s case. The word “relevancy” requires some fine tuning, in my view, from the cases decided by the courts,. Relevancy that the court cannot inquire into does not, however, extend to any case where the grounds of detention stated are not within the scope of the enabling legislation….
Upon leaving the High Court on his way home, Karpal Singh was rearrested
and detained under a new and separate detention order signed by the Minister.
Anticipating that the decision in this case would adversely affect future
detentions, the Government appealed to nullify Karpal Singh v. Menteri
Hal Ehwal Dalam Negeri.46 In Minister of
Home Affairs & Anor. v. Karpal Singh47 the Supreme
Court overruled Peh J’s decision in the earlier Karpal Singh case, citing
that the sufficiency or insufficiency of the grounds of detention was not
a matter for the court to decide. Thus, the Supreme Court decision
obliterated any hope of the future utilisation of a similar objective test.48
Somehow, events in Malaysia and Singapore in 1988 appear to have converged, at least in relation to amending the law on preventive detention. Soon after Chng’s case in Singapore where Wee Chong Jin CJ made the historic finding that the objective test and not the subjective test of the detaining authorities was to be the future yardstick to determine the legality of future detention, the Singapore Parliament amended its ISA whereby no acts or omissions of the detaining authorities were to be questioned in any court of law and further, all forms of judicial review in this regard was disallowed.
Malaysia, without much ado, did likewise and by way of the Internal
Security (Amendment) Act 198949 judicial review in whatever
form was disallowed in respect of the ISA, EPOPCO and the SPMA. The
new section 8B(1) of the ISA reads:
There shall be no judicial review in any court, of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang Di Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirements in this Act governing such act or decision.50