ISA review: rule of law and principles of human rights must be protected and upheld
We respectfully highlight the views of Datuk Zaid Ibrahim, Minister in the Prime Minister’s Department in charge of law, expressed in his book “In Good Faith” (2007) in a chapter titled “Colonial Laws that Continue to Shackle us” (being a reproduction of his article first published as “An Urgent Need For Clear Safeguards” in the New Straits Times on 13 July 2006) as follows:
… The Emergency Ordinance was passed by Parliament to quell unrest like the 13 May, 1969 riot. The Restricted Residence Act and the ISA were a temporary measure to fight the communist rebellion. Bearing in mind the circumstances we were faced with then, derogation of fundamental rights was perhaps justified then. However, it is difficult to accept their continued application as they are today. Malaysia is no longer in a state of ‘national emergency’ (though the declaration has not been lifted). There is no public unrest, to a degree where national security or public safety can be affected.
These laws and regulations confer expansive powers that violate our constitutional right to fair trial. They permit indefinite detention without trial, impede our freedom of movement, and reverse the presumption of guilt. We may be held incommunicado for 60 days and be denied access to counsel. Furthermore, upon the expiry of 60 days, we may be re-arrested or worse: our detention may be extended to two years and may be renewed, indefinitely.
The government says that application of such laws is confined to those who pose a threat to national security or public safety. However, ‘threat’ is so broadly defined that it may be quite easily interpreted to include a participant or an organiser of a forum seeking to promote open discussion on issues such as constitutional rights. Past incidents clearly show that the grounds for arrest and detention under the ISA do not satisfy the criteria of being ‘prejudicial to national security’. What is there to prevent the ISA from being used as a political tool to silence dissenters, political or otherwise, and to deal with ‘deviant’ and ‘subversive’ individuals? Can we justify the existence of these laws when they undermine the rule of law? Do they genuinely generate a ‘safer’ Malaysia? We already have adequate laws that can deal with such offences.
There is today NO imminent threat of a national emergency or to public safety! To assert otherwise would be to contradict our Visit Malaysia 2007 advertising campaign, which promotes our country as a peaceful, harmonious holiday destination. Why would tourists flock over if Malaysia were still in an Emergency, requiring the continued application of such harsh and draconian rules to maintain peace?
The power to re-arrest and to extend detention, for indefinite two-year periods, violates the principles of democracy and the rule of law. It is unlikely that the police would require an ‘indefinite’ amount of time to investigate and to eliminate any threat. Depriving a person who is presumed guilty of his or her liberty is synonymous to ‘sentencing’ him to an indeterminate term of imprisonment. …
… As members of a free society who cherish our freedom, we must be opposed to arbitrary detention as a matter of principle. Depriving a person of liberty for up to 60 days is harsh though may be necessary in certain, exceptional circumstances. But there cannot be justification for ‘indefinite’ detention. If we want to be governed by the rule of law, then the power to detain beyond 60 days must be subject to review by the courts. There must be clear safeguards to ensure that these powers are not abused. If we have to sacrifice the liberty of a citizen, it can only be justified in exceptional circumstances and for a limited duration. Detention can only be justified, if it is proportionate and strictly necessary for the protection of a legitimate aim.
The Emergency Ordinance 1969 provides for detention without trial on a similar footing as the ISA. Given the strong sentiments of the Minister reproduced above, the Committee trusts that the review of the ISA will also include a concomitant appraisal of all emergency provisions currently in force in the country. There are at present 4 Proclamations of Emergency which have yet to be revoked. These Proclamations were made (1) in 1964 as a result of the confrontation with Indonesia, (2) in 1966 following a constitutional standoff in Sarawak, (3) in 1969 after the May 13 riots and (4) in 1977 due to the political crisis in Kelantan. The fact that Malaysia is in a permanent state of emergency is a continuing gross violation of international law.
Secondly, the ambit of the ISA review should include a serious move towards the ratification of international human rights instruments such as the International Covenant of Civil and Political Rights 1966 (‘ICCPR’), International Covenant of Economic, Social and Cultural Rights 1966, Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1984, International Convention on the Elimination of All Forms of Racial Discrimination 1965 and Convention relating to the Status of Refugees 1950. International human rights law has appropriately balanced the protection of individual rights and freedoms with the preservation of national security and public order by allowing limitations to the former. For example, there may be circumstances in which the right to liberty may be temporarily suspended. These circumstances must be exceptional in character (i.e. only in a time of public emergency which threatens the life of a nation), strictly required by the exigencies of the situation, limited in time, subject to regular review and consistent with other obligations under international law. However, States are prohibited (even in a time of an emergency) from derogating from the right to life (Article 6 ICCPR), from the freedom from torture, cruel, inhuman or degrading treatment or punishment (Article 7 ICCPR) and from the prohibition of retroactive criminal legislation (Article 15 ICCPR).
SUHAKAM, in its seminal report “Review of the Internal Security Act 1960” (2003) (‘ISA Report’), states as follows:
It is clear that human rights principles have built-in flexibility that allows for limitation of some individual rights and freedoms in the preservation of national security and public order. However, there are caveats. When resorting to powers or measures that lead to the limitation of rights, certain stringent conditions, which are as follows, must apply:
First, the limitation of rights of an individual must be imposed solely for the purpose of protecting a legitimate aim that is prescribed by international human rights principles. Second, the limitation of rights must be absolutely necessary for the protection of the legitimate aim. Third, the limitation of rights must be proportional to the protection of the legitimate aim. It must be remembered, however, that, there are some rights and freedoms that cannot be limited and they include the freedom from torture or other cruel, inhuman or degrading treatment or punishment. Fourth, there must be adequate safeguards so as to avoid any abuse of powers.
These conditions must be adhered to at all times as they greatly assist in the very difficult but not impossible task of striking a fair balance between two very important but, at times, competing public interests - legitimate national security concerns, on the one hand, and fundamental freedoms of an individual, on the other.
In our view, it is quite clear that the ISA and emergency provisions do not satisfy the “stringent conditions” required to justify the existence of such laws. The Minister’s views lend further weight to this position.
Thirdly, whilst we are not informed about the details of the proposal to “enhance and update provisions under the ISA”, we reiterate that it is time to repeal all provisions in Malaysian law which provide for detention without trial. Should there be a necessity for a compromise or adoption of a “middle-ground” approach, the basic acceptable minimum is the wholesale implementation of SUHAKAM’s recommendations in its ISA Report. Based on the report, it is recommended that the following broad framework be considered:
I. Repeal the ISA and replace the Act with “a new comprehensive legislation that takes a tough stand on threats to national security (including terrorism) but which at the same time is in line with human rights principles”.
II. The new legislation should have the following features, among others:
• A schedule which prescribes a list of specific offences which relate to threats to national security.
• Police powers to detain a person for the purposes of investigations for a maximum period of 24 hours only if there are reasonable grounds to do so.
• After the period of 24 hours, the person must be produced before a High Court judge.
• If more time is needed for investigations, the judge may order the further detention of the person for maximum periods of 7 days each time provided the person is not detained for more than 29 days in total from the date of arrest.
• Upon the expiration of 29 days in total from the date of arrest, the person must either be released or charged.
• The legislation shall only be in force for a period of 1 year, and any further renewal of 1 year each may only be effected by Parliament.
The Committee is, as we have always been, ready, willing and able to offer our expertise and assistance to the Government to ensure that the protection of human rights is properly promoted in the laws of our country.
Dated this 24th day of May 2008
Human Rights Committee
Bar Council
PEOPLE'S POWER
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