The ISA and the Rights of the Majority

Malaysia Today published a piece of news from The Daily Express today (16th April 2009). Among others, it reports that “the Home Ministry will ensure that a balance is struck between the individual right and the right of the majority in any changes to laws under it, including the Internal Security Act (ISA).”

Our new Home Minister, Hishamuddin Hussein was quoted as saying:

People always talk about the right of the individual only but in any change, the right of the majority is just as important. It’s a principle that I will uphold without fear or favour.

It is regrettable that there seems to be a conceptual misunderstanding on an issue which strikes at the core of a civil society, namely, the fundamental rights of the people. The real issue is not the balancing of the rights of the majority and the rights of the individual. If that was the case, the logical conclusion would be the majority should be able to do whatever they like at all times and in any manner they wish.

To my mind that would be an abuse of Bentham’s utilitarian principle. That principle – although positing that an act or policy which brings the greatest pleasure or happiness to the greatest number will be a good act or policy – is never about the majority in a society riding roughshod over the minority. Bentham was never the author of “The All And Be All Of The Majority” if you get what I mean. In actual fact, he warned that certain unnecessary laws or punishments may just bring with them new and more dangerous vices than those which were supposed to be suppressed in the first place!

The Home Minister, with all due respect, doesn’t seem to grasp the issue well enough. In the first place, nobody, and I mean NOBODY has ever questioned the fact that certain individual rights must give way to the State in exchange for the benefit of the State and the people it comprises. I for one, am not questioning the fact that certain individual liberties are to be sacrificed for the greater good of the State or society in which we live. That is beyond doubt.

The question is how are those individual liberties to be taken away? The answer is simple. They must and should only be taken away with due process of the law. That would entail a trial in the Court. The individual in question should be produced in Court. He should be charged. He should then be given the opportunity to defend himself. The Court then makes a decision whether to deprive him or her of certain liberties for whatever wrong he or she has been PROVEN to have committed. That is the issue. It has got NOTHING to do with balancing the rights of the majority and the rights of the individual.

The ISA is a vile piece of legislation. It deprives a very basic right of the people. That right is the right to be heard. The right to be heard consists of the right to a fair trial. And this right is ingrained, embedded and cast in every democracy and modern society. It is in our Federal Constitution. Without this right, the people would live in fear of being kidnapped and executed in the middle of the night in some basement bunker.

This right is premised upon the whole concept of liberty. What liberty is there when the State could incarcerate its people without a fair trial? This goes to the core of societal benefit. Would the benefits that the people derive from the State be sufficient a reason for surrendering their liberties without a fair trial? Would any right thinking individual agree to this?

No. This is not about the rights of the majority. This is about UNIVERSAL RIGHTS. Rights which are so basic to human beings so much so that the taking away of those rights would render all of us non-human.

No number of majority would empower such rights to be taken away from the minority or from whoever.