These days the dubious “ancient Chinese curse” appears to have descended upon us (dubious because it may neither be ancient, Chinese, nor a curse): May you live in interesting times. If you’re wearing yellow, chances are somebody will, no doubt out of genuine concern, come over and whisper: “Careful, ISA ah.” Then you look over your shoulder and surreptitiously don a dark jacket.

Now somebody tells you instead: “Careful, EO ah.” Your response: Huh?

The difference in (un)popularity between the Internal Security Act (“ISA”) 1960 and the Emergency Ordinance (Public Order and Prevention of Crime) 1969 (“EO”) is remarkable, given how similar they are in substance.

Both allow any police officer to detain you for up to 60 days, if the officer suspects that you may prejudice national security or public order. Both allow the Minister to detain you for up to 2 years, if the Minister thinks it necessary for national security or to prevent violent crimes. Both allow the Minister to extend your detention for 2-year periods. Both essentially provide for indefinite detention without trial.

The difference? As observed by the Centre for Public Policy studies:

“While the ISA is enforced through direct orders from a government minister, the EO can be enforced by the police according to their discretion. The possible consequence of such extended authority is reflected through the sheer outnumbering of the Emergency Ordinance over the Internal Security Act detainees (as of 2005, there are 712 detainees charged under the EO at Simpang Renggam as opposed to 102 detainees charged under the ISA at Kamunting).”

Thus the EO is almost an exact replica of its earlier counterpart, not as infamous but potentially more insidious. So far so bad.

Q1: How did it come about?

A brief history lesson. We all know what happened on May 13, right? Thanks to our mischievously brilliant Sejarah textbooks for mentioning the date but conspicuously omitting any explanation of it, compelling us to find out ourselves.

Under Article 150(1) of the Federal Constitution, the Yang Di-Pertuan Agong, satisfied that a grave threat to national security was in existence, issued a nationwide Proclamation of Emergency on May 15, 1969. The EO was promulgated by the Agong – Parliament had been dissolved at that time – shortly after as a temporary measure to deal with the riots.

Q2: Then why are we still using it?

Because we are still in a state of emergency.

Q3: Why are we still in a state of emergency!

(In Malaysian-speak: Can like that ah?)

Technically, we are under 4 overlapping Emergency Proclamations – the 1964 confrontation with Indonesia, the 1966 political crisis in Sarawak, the May 13 riots in 1969, the 1977 political crisis in Kelantan – neither of which has been revoked. According to one interpretation, a later proclamation of national emergency automatically overrides an earlier one, thus the current state of emergency would have existed since 1969. As Andrew Khoo, chairman of the Bar Council’s Human Rights Committee, aptly remarked, “We have ‘normalised’ the state of emergency.”

Sure, we don’t have curfews or food rationing; if you tell a taxi driver we’re in a “grave emergency” you’ll probably get a polite You siau ah? But the legal position remains, thus we have two regimes operating in parallel: one where Cabinet is responsible to an elected Parliament, another where the YDPA – in practice the Cabinet – exercises law-making powers without reference to Parliament.

Q4: What can we do about it?

The first and most important step for us to take is to know about this. Find out about the EO and how it has been (mis?)used. Share with others. The power of public pressure is immense (yes, they actually do take note of what we think once in a while!); just look at the authorities’ now cautious attitude towards the ISA.

We can talk about this in a light-hearted manner, in the comfort of our favourite mamak stall. We may think this is none of our business because we are not lawyers or socialists or Bersih enough. But this is real. The EO is real. The state of Emergency is real. And it cannot be more real for the six Malaysians currently detained, disallowed family visits or legal access, stripped of the fundamental right to liberty we have always taken for granted.

At times like this I am reminded of Martin Niemöller’s famous statement on the inactivity of the German public following the Nazi rise to power.

First they came for the Socialists, and I did not speak out because I was not a Socialist.

Then they came for the Trade Unionists, and I did not speak out because I was not a Trade Unionist.

Then they came for the Jews, and I did not speak out because I was not a Jew.

Then they came for me – and there was no one left to speak for me.

If there is a time to speak out, the time is now.

Update: At the high court today the habeas corpus application to release the 6 detainees has been postponed to 4.8.2011. As Malik Imtiaz Sarwar (who was holding a watching brief for the Bar and HAKAM) said in court: “In these circumstances justice delayed is justice denied, bearing in mind that every second of unlawful detention is a second too long.”

Wen Zhen is a student who has a crush on some academics, some activists, some journalists, some politicians and many lawyers.