Do we really need to repeal ISA?

Akta Keselamatan Dalam Negeri 1960 (yakni ISA) akan dimansuhkan terus… dua undang-undang baru yang sesuai akan digubal di bawah semangat serta payung Perkara 149 Perlembagaan Persekutuan… selain memansuhkan Akta Keselamatan Dalam Negeri 1960, Kerajaan juga akan memansuhkan Akta Buang Negeri 1959 di samping mengkaji semula beberapa undang-undang lain bagi memastikan ia memenuhi kehendak semasa.

That was our beloved Prime Minister’s (PM) speech during the historic and memorable day of Hari Malaysia 2011.

Almost the entire nation was shocked, or rather excited, over the PM’s announcement to repeal the Internal Security Act (ISA) alongside with the Emergency Proclamations and a few other draconian pieces of legislation. A question arose as to what would happen to the existing detainees. Would they have to serve their sentences even though the law they were detained under has been repealed? Since there were no trials for those charged under the ISA, justice should be given to them after the Act has been repealed. We shall wait and see how the Government decides to treat them, if it happens.

What I am interested to discuss however is the legislation itself.

Interestingly, there were not many detained under the ISA under the Najib administration. It was during Abdullah Badawi’s administration that the ISA was used rampantly for political purposes. What is the significance of repealing it?

As I understand it, the Act will only be repealed after the General Election. This provokes the question whether this is simply another ruse used by the PM to increase his popularity before the General Election. Of course, one can argue that Pakatan Rakyat’s manifesto in their Buku Jingga also claims the intention to repeal the  ISA. Since both promise this, it cannot count as an effective weapon for the impending Election.

How severely will the repeal of the ISA restrict the Government’s ability to detain citizens without trial? Not much because there are still other legislations they can use, for example, the Emergency Ordinance (EO), which was recently used against six members of Parti Sosialis Malaysia. There was also news that the EO would be amended. So even if they repealed the ISA, the Government can always include ‘favoured’ provisions in the repealed ISA and include them in a ‘revised’ EO.

The truth is there are few problems with the ISA itself. The main problem lies in its casual use and lack of bona fides in enforcing the Act. Every country has their respective preventive detention laws which provide for detention without a trial, subject to the respective restrictions. I believe that such a law is still necessary for the security and peace in a country and to deal with extraordinary situations. It should not simply be used to silence political opponents, but only against actual threats to national security.

If the PM’s intention is to provide a longer period of police detention then all preventive detention laws should be repealed along with the ISA, leaving offences against national security to those found in the Penal Code such as – waging war against the Yang di-Pertuan Agong (section 121 of the Penal Code – a very wide law which can cover almost any circumstance relating to national security), and offences relating to terrorism (sections 130C – 130S).

After been charged with the appropriate Penal Code offence(s), the Attorney General could always try the accused under the Essential (Security Cases) Regulations (ESCAR). ESCAR itself is unfair but at least there is a trial and the accused is not just detained with no prospect of a trial. I believe that the Penal Code and ESCAR could be used as an alternative to preventive detention without trial.

Let’s not judge the PM’s good intentions prematurely to provide justice during his administration. Let’s hope that the enactment of the new Acts in place of the ISA and others will meaningfully provide the necessary protection in the name of human rights to the detainees and at the same time strengthen our national security.


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Posted on 22 September 2011. You can follow any responses to this entry through the RSS 2.0.

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3 Responses to Do we really need to repeal ISA?

  1. Syahredzan Johan

    1.
    “How severely will the repeal of the ISA restrict the Government’s ability to detain citizens without trial? Not much because there are still other legislations they can use, for example, the Emergency Ordinance (EO), which was recently used against six members of Parti Sosialis Malaysia. There was also news that the EO would be amended. So even if they repealed the ISA, the Government can always include ‘favoured’ provisions in the repealed ISA and include them in a ‘revised’ EO.”

    The PM announced that the emergency proclamations will be annulled. Article 150(7) provides that 6 months after that, all laws made pursuant to those proclamations, including the emergency ordinances will cease to have legal effect. So, there is no such thing as ‘revised EO’.

    2.
    “If the PM’s intention is to provide a longer period of police detention then all preventive detention laws should be repealed along with the ISA, leaving offences against national security to those found in the Penal Code such as – waging war against the Yang di-Pertuan Agong (section 121 of the Penal Code – a very wide law which can cover almost any circumstance relating to national security), and offences relating to terrorism (sections 130C – 130S).”

    I do not think it is the PM’s intention to provide for longer period of police detention, but a shorter one.

    3.
    “After been charged with the appropriate Penal Code offence(s), the Attorney General could always try the accused under the Essential (Security Cases) Regulations (ESCAR). ESCAR itself is unfair but at least there is a trial and the accused is not just detained with no prospect of a trial. I believe that the Penal Code and ESCAR could be used as an alternative to preventive detention without trial.”

    ESCAR is also another emergency law which will no longer have any effect once the proclamations are annulled.

  2. Also, we cannot expect all government to act bona fide, or always in the interest of the people; or there would not be abuse of power, corruption etc. Therefore it is important to design a system that limits even the possibility of abuse of power, therefore a need to do away with laws such as ISA.

  3. Well said, Jerine. However, I would tend to disagree with you on two key points: 1. the political advantage the repeal gives BN, and the real effects of banning it.

    The Najib administration has often been criticised as full of nice sounding things but with no real action. This repeal shuts some critics up. The international media attention that the repeal has been given is also extremely significant- note the Economist applauding the move and compared us favourably with Singapore where an ISA is still in place. This two factors improve BN's standing, as should not be discounted just because "both sides promise the same thing". Both sides promise- one has been seen to make an action.

    Secondly, the very structure of our ISA makes it different from other countries. USA's Patriot Act only allows for detention without trial of non US citizens. Our ISA also allows indefinite extension of the initial period of detention, and its clauses are extremely subjective. Even if we were to amend it, bear in mind the stigma and images of oppression conjured by the very mention of ISA- thus a need to come out clean and new. This is the political reality.

    Thanks Jerine, hope to see more thought provoking articles.