To: All Members of the Bar

The Human Rights Committee of the Bar Council is preparing to submit a memorandum on the Repeal of Laws Relating to Detention Without Trial to the Cabinet.  Annexed is a draft memorandum.  Members are invited to give their input in writing to the Human Rights Committee by 15th October 1998.
 

PURPOSE

The purpose of this memorandum is to urge the Government to repeal all laws relating to detention without trial, in particular the Internal Security Act 1960 (ISA).

This is in keeping with Malaysia’s pledge to uphold positive universal values in all aspects of national development.
 

SCOPE

Currently, there are three major laws in force in Malaysia which provide for Detention Without Trial:-

1. The Internal Security Act 1960 (ISA)
2. The Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO)
3. The Dangerous Drugs (Special Prevention Measures) Act 1985 (DSPMA)

Under these laws, any person may be detained by the Police for up to 60 days on suspicion that he or she may be fit and proper subject to be detained under orders of the Minister of Home Affairs for a period of two years.

Such detention orders can be renewed ad infinitum.

In addition to these 3 laws, there are 11 other pieces of legislation that allow for preventive detention and marginalise civil rights.  These are:-

1. Restricted Residence Enactment 1933 (RRE)
2. Sedition Act 1948
3. Public Order (Preservation) Act 1958 (POPA)
4. Prevention of Crimes Act 1959 (PROCA)
5. Trade Unions Act 1959
6. Police Act 1967
7. Societies Act 1966
8. Universities and Universities College Act 1971 (UUCA)
9. Official Secrets Act 1972 (OSA)
10. Essential (Security Cases) Regulations 1975 (ESCAR)
11. Printing Presses and Publications Act 1984 (PPPA)

HISTORY

Laws such as the Internal Security Act and the Restricted Residence Enactment are relics of British colonialism.

The ISA, for instance, is akin to Regulation 19B of the Defence of Realm Act 1939 in the United Kingdom.

Further, the ISA was enacted in this country for the sole purpose of fighting the communist insurgency and it was intended as a temporary measure until that threat was removed.

It has, therefore, outlived its purpose as there has been no armed insurgency within or without the country since the Malaysian Communist Party laid down its arms and gave up its struggle in 1989.

RATIONALE FOR REPEAL

Besides the fact that detention without trial is the very antithesis of the rule of law, two compelling reasons why these statutes should be repealed are:-

(a) Sufficient Legislation to meet any Emergency

There is already enough legislation at the disposal of the Executive to meet every conceivable eventuality, including another state of Emergency.  Other laws and instruments provide the executive with similar powers of arrest and detention as the ISA.  For example, the powers under Article 150 of the Federal Constitution.

(b) Probable abuse of Power

The ISA, in particular, lands itself to possible abuse by over-enthusiastic authorities.  For example, in the recent past the ISA has been invoked to incarcerate and intimidate those alleged to have spread rumours, forged passports, breached copyrights etc, etc.

All these alleged law-breakers could have been properly charged under existing legislation.
 

CONCLUSION

The power of detention without trial remains an exception to the norms of any fair, just, equitable and democratic society.  As our very own Prime Minister Datuk Seri Dr Mahathir Mohamad once said:

“…..no one in his right senses likes the ISA.  It is in fact a negation of the principles of democracy.”

As Malaysia has given due respect and recognition to several international covenants on human rights, it does not augur well for the future of the rule of law in Malaysia, if laws allowing for detention without trial remain in our statute books.