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Al-Fatihah

Wednesday, September 24, 2008

Internal Security Act

A lot have been said about the Internal Security Act 1960 or better known as ISA. While a few quarters are in favour of using the Act to ensure the country’s security, some others do not mind the authority invoking the ISA so long as there is no abuse of the said Act but most of the people are against the using of the Act against any individual for any reason whatsoever. Some even labeled the Act as a draconian law, which means rigorous, unusually severe or cruel law.
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Let me take you through the brief background of ISA and the salient sections of the Act to better understand what ISA is all about.
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The reason the ISA was drafted and enacted has been discussed by Yang Pei Keng in his Article entitled “Preventive Detention Under ISA – Unlawful for Non-Violent Peaceful Activities – The Effect of the Recent Federal Court Decision in Chor Phaik Har –v- Farlim Properties Sdn. Bhd. on Statutory Interpretation [1995] 1 CLJ cxcv (Mar)..
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The following is the excerpts from his Article above which I quoted in verbatim: -
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Professor R.H. Hickling, the former Professor of Law, University Kebangsaan Malaysia, Kuala Lumpur, was the first Parliamentary Draftsman and Commissioner of Law Revision of Malaya in the early years of Independence. He was "involved in much federal legislation, up to 1962. Included in that legislation was the Internal Security Act (ISA) of 1960".
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When he was assigned the task of drafting the ISA, he explained to the then Deputy Prime Minister Tun Razak in 1959, that "the preventive detention under the ISA was justified only in emergency conditions".

In the preface to Essays in Malaysian Law, written by him in 1989 when he was the Professor of Law in the University Kebangsaan Malaysia, Professor Hickling had this to say when commenting on the frequent use of the ISA by the Executive:

I could not imagine then that the time would come when the power of detention, carefully and deliberately interlocked with Art. 149 of the Constitution, would be used against political opponents, welfare workers and others dedicated to non-violent, peaceful activities. It was with some considerable surprise that I discovered in 1987 that the Supreme Court (Teresa Lim Chin Chin and Ors. v. Inspector General of Police [1988] 1 MLJ 293 at 296) took the view that "from the wording of the provision(s) of the Act there is nothing to show that it is restricted to communist activities." It seems extraordinary that a Court, faced with two interpretations of a law, should adopt the one more restrictive of freedom, and indifferent to the Constitution." (see Preface to R.H. Hickling: Essays in Malaysian Law)
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So, now it is evidently clear that the reason and the intention ISA was drafted and enacted in 1960 was to curb communism and the same to be used only in emergency situations. So now the issue is whether ISA can be used for any other purpose including nation’s security, which is not in line with the intention of the law makers?
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Initially, in 1988, in the case of Teresa Lim Chin Chin and Ors. v. Inspector General of Police [1988] 1 MLJ 293, the then Supreme Court held that the intention of the Parliament in enacting any Act should not be used as the factor for interpreting the Act. It is for the Court to interpret in its own way. In other words, the using of the ISA is not restricted to the law maker’s intention when the same was enacted.
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However, in Chor Phaik Har v. Farlim Properties Sdn Bhd [1994] 3 MLJ 345, the Federal Court held that the statement of a Minister or the promoter of a Bill (the intention of the Parliament) can be referred to as an aid to interpretation. It means that the intention of the Parliament in drafting and enacting an Act may be used as an aid to interpret the Act but shall not be the sole or main factor to determine whether or not the Act should be used in a case.
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Based on the above two (2) cases, it is crystal clear that ISA may be used for any reason other than its’ original intention and I think that is why the government is using it so widely to safeguard the country’s security.
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Now, let us take a look at some salient points of the ISA.
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Section 8 (1) of ISA gives the Home Minister the power to order the detention of any person for up to two (2) years if the Minister is satisfied that such a person may be prejudicial to the security of Malaysia or to the maintenance of essential services or to the economic life thereof.
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However, Section 8 (1) does not really set the maximum period for the detention. By virtue of Section 8 (7), the Minister may extend the detention period for another two (2) years and thereafter for another two (2) years, so on and so forth, so long as the Minister is satisfied that the person is still a threat to the national security. In other words, Section 8 (7) gives the power to the Minister to determine the detention period and there shall be no limit to it until the Minister is satisfied that the detainee shall not be a threat to the country’s security.
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Section 8B provides that there shall be no judicial review on the detention order made by the Minister or the Yang Di Pertuan Agong unless on the ground of procedural compliance, which means the person who is detained under the ISA cannot have their detention reviewed by the Court based on merit unless they are able to prove that the detention does not follow the proper procedure. This provision makes it almost impossible for a detainee to challenge the Minister’s decision for the detention and they have to hope for any breach of procedures to be committed by the detaining authority, which is highly unlikely to happen because the detaining authority has been doing this over time.
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However, as oppose to the provision of Section 8 (7), Section 10 allows the Minister to suspend the detention order.
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Apart from the above Sections that gives the Minister the power to issue the detention order, Section 73 gives the power to police to detain a person, without a need for warrant, of up to sixty (60) days without a need of a detention order from the Minster as required under Section 8 if the police has the reason to believe: -
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(a) that there are grounds, which would justify his detention under Section 8; and
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(b) that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or to the maintenance of the essential services or to the economic life.
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As such, based on the Sections mentioned above, in a nutshell the detention under the ISA works this way: -
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(a) Police may detain the person for up to sixty (60) days without a detention order from the Minister in pursuant to Section 73;
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(b) At the end of the sixty (60) days, the Police may either release the person or obtain the detention order from the Minister, who may order the detention up to two (2) years.
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(c) At the end of the two (2) years detention period, the Minister may wither release the detainee or extend the detention period up to another two (2) years and so on and so forth.
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If we look at the provisions of the ISA, it talks about “if the Minister satisfied” and “if the police have reason to believe”. It indicates that all the arrests and detentions made under the ISA are made at the sole discretion of the police and the Minister. In this case, in my opinion, the discretionary power given to the Minister is very wide because the detention order issued by the Minister or any extension thereof is almost impossible for it to be challenged in Court.
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Going back to the provision of Section 8B above, while it is not allowed to challenge the Minister’s order of detention made pursuant to Section 8, it is silent on whether the detainee is allowed to challenge the arrest and detention made by the police in pursuant to Section 73. This means that detainees are allowed to file a judicial review with the High Court to challenge the arrest made by the police in pursuant to Section 73 both on merit and procedural.
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Based on the provisions stated above, ISA is actually a law that allows “detention without trial”. This is definitely against the principle of law where “a person is innocent until proven guilty”. And how do we prove a person is guilty or innocent? We definitely need to have a proper and fair Hearing so that all the relevant evidences can be tendered in an open Court before a Judge, witnesses are called to testified, their testimony can be challenged, and the evidences tendered can be challenged by the opposing party. All it means is that both parties i.e. the accused and the authority should play at the same ground level. So, when the authority is having the upper hand over the detainee, it is what common people called “unfair”.
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Well, as the Minister said recently that ISA is a preventive law, to me whatever it is, you have no right to detain a person without putting him in a proper trial. That is wrong and there is no two (2) ways about it.
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All I want to say is that, while the authority may have the information to form the grounds for them to believe that the person is a threat to the national security, thus arresting him under the ISA, the wide discretionary power granted to the Minister may still lead to an abuse of the process of law because no one can challenge the Minister’s discretionary power. Not even the court of law in the country. A person may be a threat in the eyes of the Minister but not in the eyes of the majority but the Minister’s belief shall prevail. So, in detaining a person under the ISA, whether or not the person is a real threat to the country, only the Minister knows.
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I am against the ISA.

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