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Internal Security Act 1960

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The Internal Security Act 1960 (ISA) (Malay: Akta Keselamatan Dalam Negeri) is a preventive detention law in force in Malaysia. The legislation was inherited by Malaysia after it gained independence from Britain in 1957. In essence, it allows for the arrest of any person without the need for trial in certain defined circumstances. Malaysia is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights.

History

Preventive detention first became a feature of the then Malaya in 1948 primarily to combat the armed insurgency of the Malayan Communist Party. The Emergency Regulations Ordinance 1948 was made, following the proclamation of an emergency, by the British High Commissioner Sir Edward Gent. It allowed the detention of persons for any period not exceeding one year. The 1948 ordinance was primarily made to counter acts of violence and, conceivably, preventive detention was meant to be temporary in application. The emergency ended in 1960 and with it ended the powers contained in the that ordinance as it was repealed. The power of preventive detention was however not relinquished and in fact became an embedded feature of Malaysian law. In 1960 itself, the government passed the Internal Security Act under Article 149 of the Malaysian Constitution. It permitted the detention, at the discretion of the Home Minister, without charge or trial of any person in respect of whom the Home Minister was satisfied that such detention was necessary to prevent him or her from acting in any manner prejudicial to national security or to the maintenance of essential services or to the economic life in Malaysia. The ISA is one of the most controversial Acts enacted under Article 149 of the Malaysian Constitution.

Section 8(1) of the ISA provides that ‘(i)f the minister is satisfied that the detention of any person is necessary …’ then s/he may issue an order for his/her detention. The three grounds given in Section 8(1) upon which the order may be based is where a person has acted in any manner prejudicial to the:

a) security of Malaysia or part thereof; or
b) maintenance of essential services; or
c) economic life.

The power to detain seems to be restricted by Section 8(1) to a period not exceeding two years but the restriction is really illusionary because, by virtue of Section 8(7), the duration of the detention order may be extended for a further period not exceeding two years and thereafter for further periods not exceeding two years at a time. The extension to the detention order may be made on the same ground as those on which the original order was based or on different grounds. In delivering the judgment of the Court, Steve L.K. Shim CJ (Sabah & Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir (2003) 6 AMR 497 at page 506, has accepted that under Section 8 of the ISA the Minister has been conferred powers of preventive detention that ‘can be said to be draconian in nature’ but nevertheless valid under the Malaysian Constitution. In addition, preventive detention is also now allowed by the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights.

Article 149 of the Constitution of Malaysia under which a person may be detained is characterised by subjective language. Such terms as ‘substantial body’, ‘substantial number’, ‘cause to fear’, ‘excite disaffection’, ‘promote feelings of ill-will and hostility’, all embody wide areas of discretionary interpretation.

Article 151 of the Malaysian Constitution gives to any person detained without trial (under the special powers against subversion) certain administrative rights. By the terms of Article 151 the authority, on whose order a person is detained, shall, as soon as may be, inform the detainee of the grounds of detention and the allegations of fact on which the order is based. The detainee shall also be given an opportunity within three months, of making representations against the order to an Advisory Board . The Advisory Board as the name implies is not a court. Its determinations are also mere recommendations that the government is under no obligation to accept. It may also be handicapped in its deliberations by the discretionary power of the government to withhold facts, the disclosure of which would, in the executive’s opinion be against national interest.

Any person may be detained by the police for up to 60 days without trial for an act which allegedly threatens the security of the country or any part thereof. After 60 days, one may be further detained for a period of two years each, to be approved by the Minister of Home Affairs, thus permitting indefinite detention without trial. In 1989, the powers of the Minister under the legislation was made immune to judicial review by virtue of amendments to the Act, only allowing the courts to examine and review technical matters pertaining to the ISA arrest.

Legislation

Relevant sections of the legislation are as follows:

Section 73(1) Internal Security Act 1960: "Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe that there are grounds which would justify his detention under section 8; and that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof."

Section 8 ISA: Power to order detention or restriction of persons. "(i) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years."

A detenu can make representations against his/her detention if an order of detention has been made against the detenu by the Minister under Section 8(1) of the ISA but under Section 73 however, the detenu seems to have no such right. Generally, the attitude of the Malaysian courts in respect of detention under Section 73 is that the courts have jurisdiction only in regard to any question on compliance with the procedural requirements of the ISA and they seldom grant any substantive rights to the detenu.

The stated purpose of the ISA was to deter communist activity in Malaysia during the Malayan Emergency and afterwards. The first Prime Minister of Malaysia, Tunku Abdul Rahman, defined the purpose of the act as to "be used solely against the communists...My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent". The third Prime Minister, Tun Hussein Onn, stated at the same time that his administration had enforced the act only with a view to curbing communist activity, and not to repress "lawful political opposition and democratic citizen activity".[1]

In response to criticism that the ISA was not democratic or was too open to abuse, the first internal security minister, Ismail Abdul Rahman, stated:

I maintained then and I maintain now the view that the Internal Security Act is essential to the security of this country especially when democracy is interpreted the way it is interpreted in this country. To those in opposition to the government democracy is interpreted to mean absolute freedom, even the freedom to subvert the nation. When cornered by the argument that democracy in the Western sense means freedom in an ordered society and an ordered society is one in which the rule of law prevails, they seek refuge in the slogan that we should imitate Western democracy one hundred per cent. I am convinced that the Internal Security Act as practiced in Malaysia is not contrary to the fundamentals of democracy. Abuse of the Act can be prevented by vigilant public opinion via elections, a free Press and above all the Parliament.[2]

Detention

ISA detainees are typically held at the Kamunting Detention Center.

First 60 days

A person detained under the ISA during the first 60 days is held incommunicado, with no access to the outside world. Furthermore, lawyers and family members are not allowed access to the detainee during this initial period. If a two-year detention order is signed, the detainee is taken to the Kamunting Detention Centre to serve his or her two-year term, during which family members are allowed to visit. Otherwise, the detainee may be released.

Torture

Torture is reportedly a major part of an ISA detainee's daily life. Former detainees have testified to being subjected to severe physical and psychological torture that include one or more of the following: physical assault, forced nudity, sleep deprivation, round-the-clock interrogation, death threats, threats of bodily harm to family members, including threats of rape and bodily harm to their children. Also, detainees are confined in individual and acutely small cells with no light and air, in what is believed to be secret holding cells. These interrogation techniques and acts of torture are designed to humiliate and frighten detainees into revealing their weaknesses and breaking down their defences.[citation needed]

ISA detainees have even turned up with bruises, but such results of assaults will not be investigated by the police. ISA detention is effectively a free-for-all for the police to torture and assault the detainees. Solitary confinement takes place in tiny cells that measure roughly 3-feet by 3-feet, with hardly any room to kneel and sit. These cells will not have any drainage system and are hardly cleaned. In Anwar Ibrahim's account of his solitary confinement, he mentioned that his cell was filthy and had an unbearable stench. Excrement and urine from previous detainees are left uncleaned within the cell.[citation needed]

Although physical abuse is typically limited to bruising, the detainees are seldom beaten up to the point of being disabled, or having broken bones. There have been cases, however, of female detainees being raped and male detainees being sodomized. [citation needed]

Release

Although the government may release detainees unconditionally, in some cases, it has required those being released to make a public "confession" on television and radio. [3]

Detainees

The following list is of known current and former detainees under the Internal Security Act.

Criticism

An artist's portrayal of the Internal Security Act. The law has attracted criticism when dealing with civil rights issues.

Due to the alleged draconian nature of the ISA, several human rights organisations and opposition political parties have strongly criticised the act and called for its repeal. Foreign governments, notably that of the United States, have also pressured the government to repeal the act.

Domestic

Several opposition parties such as the Pan-Malaysian Islamic Party (PAS), the Democratic Action Party (DAP) and Parti Keadilan Rakyat (PKR) have spoken out against the ISA. Many of them have leaders or prominent members who were held under the ISA, such as Muhammad Sabu of PAS, Lim Kit Siang, Karpal Singh and Lim Guan Eng of the DAP, and Anwar Ibrahim of the PKR. Previously in the 1960s, the law had been denounced by such opposition leaders as Tan Chee Khoon, who said:

This infernal and heinous instrument has been enacted by the Alliance Government at a time when the emergency was supposed to be over. Then it promptly proceeds to embody all the provisions of the Emergency Regulations which during the Emergency had to be re-enacted every year, but now it is written into the statute book ad infinitum...[4]

However, several politicians from the Barisan Nasional coalition, including its largest component party, the United Malays National Organisation (UMNO or Umno), that has governed Malaysia since independence have also criticised the ISA. The fifth Prime Minister of Malaysia, Abdullah Ahmad Badawi, went on the record in 1988 to state "If we want to save Malaysia and Umno, Dr Mahathir (then Prime Minister) must be removed. He uses draconian laws such as the Internal Security Act to silence his critics." The year before, he had also stated "Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law." In 2003 when he became Prime Minister, however, Abdullah called the ISA "a necessary law," and argued "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society." But opposition parties believe it is a threat to Umno rather than a threat to the country.

Prior to becoming Prime Minister, Mahathir had also adhered to a critical view of the ISA. In 1966, when Mahathir spoke out in support of the Internal Security (Amendment) Bill 1966 as a backbencher, he stated that "no one in his right senses like[s] the ISA. It is in fact a negation of all the principles of democracy."[4] After becoming Prime Minister however the former premier had little if any hesitation using the law to suppressed what he termed racialism but was seen by some as a move against his political opponents, the most notable of events being the infamous Operasi Lalang in 1987.

Recently former rapporteur to the United Nations Param Cumaraswamy, who is on record for his opposition of the ISA, suggested its use on former Malaysian Prime Minister Dr. Mahathir for alleged racial incitement by the latter at a speech in Johor Bahru on May 17, 2008, arguing that the reasoning of the former premier in the use of the law would be applicable against him now in light of his own racial excesses[5] Such tit for tat justification however was condemned by various groups, notably PAS for incosistancy and double standards shown by the former rapporteur in his position as regards the ISA.[6]

Foreign

In the past, the United States government has criticised the Malaysian government for implementing the ISA, but it has muted its criticism since the advent of the "war on terror."

Notable uses of the ISA

Since 1960 when the Act was enacted, thousands of people including trade unionists, student leaders, labour activists, political activists, religious groups, academicians, NGO activists have been arrested under the ISA. Many political activists in the past have been detained for more than a decade.

The ISA has been consistently used against people who criticise the government and defend human rights. Known as the "white terror", it has been the most feared and despised, yet convenient tool for the state to suppress opposition and open debate. The Act is seen by some as an instrument maintained by the ruling government to control public life and civil society.

The ISA was used extensively during the 1987 Operation Lalang in which Opposition members were silenced by the UMNO government through the use of ISA. Many opposition leaders were detained without trial, evidence or reason. The ISA was also used to detain Anwar Ibrahim.

The most recent application of ISA was against Hindu activists belonging to the group HINDRAF who voiced out against the UMNO government's racist policies that resulted in Malaysian Indians being marginalized and sidelined from the country's development. In response, Prime Minister Abdullah Ahmad Badawi personally signed the detention order that allows the leaders of HINDRAF to be detained without trial for two years, with the option for the detention order to be renewed indefinitely.

See also

Notes and references

  1. ^ Saravanamuttu, Johan. "REPORT ON HUMAN RIGHTS IN MALAYSIA". Retrieved October 16 2006.
  2. ^ "Ismail's struggle to form Malaysia and Asean", pp. 12–13. (Jan. 2, 2007). New Straits Times.
  3. ^ Tan, Chee Koon & Vasil, Raj (ed., 1984). Without Fear or Favour, p. 27. Eastern Universities Press. ISBN 967-908-051-X.
  4. ^ a b Yatim, Rais (1995). Freedom Under Executive Power in Malaysia: A Study of Executive Supremacy, p. 253. Endowment Publications. ISBN 983-99984-0-4.
  5. ^ Param: Detain Dr M under ISA
  6. ^ HarakahDaily.Net - PAS Batu kecam cadangan Param tahan Mahathir bawah ISA

Other references

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