ISA – To Review or Repeal?

In April this year, our new Prime Minister Najib Abdul Razak suggested that the Internal Security Act 1960 (ISA) be subject to review. 13 detainees were released. However, almost at the same time, the ISA was invoked to detain 3 more persons. Little or no publicity was given to such recent detentions.

Proposals to review the ISA had in fact been made by past Prime Ministers, such as Dr Mahathir and Abdullah Badawi, with a view to amending the draconian legislation on detention without trial, but no positive results came about.

Since the ISA came into force in 1960, nearly 50 years have passed. It still exists today. Criticisms have been levelled against the Act from time to time by numerous bodies and organisations like the Bar Council, Civil Rights Committee (CRC), Suaram and even Suhakam. They have all along been advocating for its repeal, but the government has yet to take effective measures in this direction.

True, amendments to the lSA were made from time to time, but they merely served to make it more stringent and detrimental to the interests of the citizenry. For instance, s73 [relating to the maximum period of detention and investigations by the Police] of the Act was amended to extend the period of detention from 28 days to 60 days, empowering the Police to detain a person for a period more than necessary for investigations. In fact, the necessary investigations ought to have been done before detention, and not after detention.

Similarly, the relevant provision of the Federal Constitution [concerning detention without trial] was also amended to legitimise the undue delay on the part of the Advisory Board in submitting its report after a period of more than 30 days as originally stipulated.

ISA is against the rule of law

Under an ordinary Act of Parliament, if someone is in breach of the law, he has to face criminal charges and will have to stand trial in a court of law. If he is found guilty, he will be sentenced to imprisonment or fined. Such legal process is perfectly in accordance with the spirit of the rule of law.

The ISA, however, is unlike such general laws, and detention under the ISA is subject to an entirely different procedure. Under the Act, the Police or the Minister for Internal Security may arrest and detain any person arbitrarily, without any necessity of producing him for trial in any court of law.

In other words, under the ISA, without any proper criminal charge preferred against the person, and without any court trial, judgment and sentence he will be detained by the Police for up to a maximum period of 60 days. In most of such cases, a person will be detained for a full period of 60 days [note: it was only 28 days previously before the relevant amendment].

According to those who have undergone the 60-day police detention, a detainee will be subject to inhuman physical or mental torture, resulting sometimes in mental derangement, and even suicide. It is always euphemistically said that the person was detained for “investigations”.

According to democratic process, all investigations ought to have been done before making any arrest or detention.

After the 60-day detention, the detainee may be detained for a further period of 2 years pursuant to an order issued by the Minister of Internal Security. Such 2-year detention period is renewable indefinitely. In theory, a person may be detained for a much longer period. He may be left to rot in the detention camp, so to speak. At least, in law, the Minister of Internal Security has such arbitrary power to extend the period of detention indefinitely.

In South Africa, Nelson Mandela was detained for 27 years, whereas in Malaysia, Loh Ming Liang of Johor experienced detention without trial for 16 years.

It is widely recognised that the longest-serving detainee under detention without trial was Chia Thye Poh of Singapore. He had been deprived of his personal liberty by the Singapore government for a total period of 32 years. He was detained in the detention camp in Singapore for 23 years, and he was subsequently restricted in his personal liberty for a further period of 9 years on Sentosa Island, making it a total of 32 years.

In an interview, Chia Thye Poh revealed that, after his release from detention, he immediately issued a statement condemning the draconian ISA, and advocated the repeal of the ISA.

As a victim of such inhumane legislation, Chia was fully aware that such unjust law had been invoked to trample underfoot human dignity, and to instil fear in the minds of the people. Chia opined that the ISA was the product of former western colonialism. It was resorted to by the powers-that-be to dampen the spirit of the people in the colonies fighting for independence [see Ang Siok Ngai 2001: Chia Thye Poh – the Longest Serving Political Detainee in Asia].

In criminal law, if any person found guilty of a serious crime, such as manslaughter, he may be committed to life imprisonment. “Life imprisonment” means a jail term of 20 years, but with all deductions, such as Sundays and public holidays, in actual fact, a person sentenced to life imprisonment needs to stay behind bars for 13 years only.

It is to be noted that detainees under the so-called preventive detention have never been charged in court, tried and convicted for any crime. None of the political detainees mentioned above inflicted any bodily harm on any person, let alone commit any serious crime. That notwithstanding, they were arbitrarily arrested and detained in the detention camp without trial for a period much much longer than “life imprisonment”. How ruthless and brutal the ruling elite can be in exercising the power bestowed upon them by the ISA!

The essence of ISA – detention without trial

Under the ISA, any person may be subject to arbitrary detention without trial. Without any doubt, detention without trial runs counter to the spirit of the rule of law. No democratic government committed to the rule of law will tolerate detention without trial.

The essence of the ISA is arbitrary detention without trial. Those in power may arbitrarily retain any person under the ISA. In recent years, particularly before the March 8 general election in 2008, abuse of powers under the ISA was rampant in this country.

The crux of the issue is that the primary objective of the ISA is to allow detention without trial. It is not justifiable today to have such law. In the circumstances, should the ISA be reviewed or repealed?

Any country subscribing to the rule of law, democracy and human rights, will never allow abuse of power under the law of detention without trial. If those in power have the genuine intention to do away with arbitrary detention without trial under the ISA, it is incumbent upon them to repeal the ISA once and for all.

Obviously, the ISA must be repealed. Apart from repeal, there is no other alternative. Merely reviewing the provisions of the ISA will lead us no where. It may prove to be a futile exercise.

Any attempt at merely reviewing the ISA can only effect a cosmetic change in the legislation itself. It may even enhance the law on detention without trial. In fact, the ISA is seen to have been used to silence opposition and dissenting views.

Perhaps some may ask, what about fighting terrorist activities which have been taking place frequently? Suffice to say that there is a host of existing criminal laws dealing with terrorist activities. A series of current anti-terrorist legislation is more than sufficient to deal with such situation. An all-encompassing ISA is not required for the purpose.

Simply put, in order to do away with the draconian law of detention without trial under the ISA, the only solution is to repeal the ISA. Merely to review it will not serve the purpose; it may even have the undesirable opposite effect.