Wednesday, October 28, 2009

ISA: 'I Say Abolish!'

ISA: 'I Say Abolish!'
Kua Kia Soong
Oct 27, 09

On this 22nd anniversary of Operation Lalang and with the Barisan Nasional government at its most defensive over the continued use of this indefensible suppression apparatus - the Internal Security Act - we would do well to ensure there is no compromise on the call by civil society for its total abolition.21 years of operasi lalang penang event 201008 03

Whenever the BN government has run out of justifications for its continued use of the ISA, it has sounded out its intentions to "review" this vile piece of legislation.

Thus, after the Communist Party of Malaya had signed the peace treaty with the Malaysian government in 1989, the then Deputy Prime Minister Abdul Ghafar Baba announced the intention for "ISA to be reviewed" (The Star, 1.12.89).

Again in 1996, after the concerted campaign by SUARAM society, the BN government announced that "the ISA would be amended to reduce the mandatory term of two years to maybe six months." (The Sun, 16.2.96)

In the current session of Parliament, we understand the government is attempting to introduce a bill to amend the ISA instead of abolishing it altogether in view of the indefensible record of the ISA since its enactment in 1960.

This law has been a too convenient a tool for the Barisan Nasional and its predecessor, the Alliance to put away opposition leaders and other dissidents, allowing the Special Branch to torture detainees with impunity all these years.

Incongruent with society

Anything short of abolition to outlaw detention without trial will not be congruent with "a society at peace with itself", those fluffy words in "Wawasan 2020". We base our case on the following:

1. There is no emergency situation

Although we know that none of the four Emergencies declared since Independence has been annulled, the fact remains that ever since the end of The Emergency in 1960, we have not faced any emergency situation "threatening the life of the nation".
21 years of operasi lalang penang event 201008 04
The only crisis faced by the BN Government seems to be the possibility of losing control of the federal government after the severe drenching by the rakyat during the political tsunami of 2008.

It is perhaps the biggest scandal of post-Independence Malaysia that we have allowed one of the most draconian legislations in the world to be used for nearly fifty years during peace time.

It is ironic that the butcher of the Emergency, Gerald Templar had suggested the Emergency regulations be annually renewable or they should lapse automatically.

And even during the worst days of Apartheid, Nelson Mandela was allowed due process of the law; there was judicial review in South Africa all that time.

Then again, during the troubles in Northern Ireland in the seventies, the British government's detention of IRA suspects for seven days was ruled unlawful by the European Court of Human Rights.

Here we have had to endure the ISA that allows sixty days of solitary confinement when the detainee is at the mercy of the Special Branch with a renewable two-year detention orders.

An ISA detainee just released had been detained for eight years. Another released in 1987 had been detained for 16 years!

2. No justification for interim measure of review

In a moment of political gaucherie, Suhakam in its 2003 "Review of the Internal Security Act" suggested interim recommendations "in light of the possibility that the enactment of such a comprehensive legislation will take time..."

Interim measures needed

We know that the Attorney General's office works in mysterious ways; they can be quicksilver swift when it comes to laws the government wants to introduce quickly, yet painstakingly slow when it comes to legislation that does not fit their agenda.

For now, we do not expect the government to reinvent the wheel.

There exists in many countries today comprehensive legislation to deal with terrorism - the US, UK, Spain, Turkey.

All the government needs to look out for are the bits in their legislations that do not meet international human rights standards.

We are gratified, for example, to read the reformed former Prime Minister Dr Mahathir's recent denunciation of US treatment of their detainees.

The government can take the cue from Dr Mahathir and improve on any new comprehensive anti-terrorism legislation.

Suhakam has suggested various interim measures including reducing the two-year mandatory detention orders to three months.

We believe such amendments will only serve to prolong the injustice of detention without trial and simply allow the BN government to use the ISA in its new form.

3. Anti-Terrorism Laws in US and UK

Since September 11th 2001, the BN government has tried to justify the continued use of the ISA by pointing to anti-terrorism laws in the West, especially the US and the UK.

First of all, we should note that while these countries have experienced cases of terrorist bombings, Malaysia has not suffered any such incidents.

Still, these countries have not declared emergencies in the aftermath of the bombings.

Secondly, the US Patriot Act is only targeted at non-citizens. While it also introduced measures that erode the civil liberties of US citizens, detention without trial would certainly not be accepted by US voters.

'Not charged in open court'

In the UK, the Anti-Terrorism, Crime and Subversion Act of 2001 was also targeted only at foreigners.

After it was rendered unlawful by the European Court of Human Rights, the UK Government replaced it with the Prevention of Terrorism Act 2005.

Under this law, suspects are placed under "control orders" (more like house arrest) rather than detention orders.

And while ISA detainees are held for up to sixty days in solitary confinement, the limit on holding is 28 days in the UK, 2 days in the US, 5 days in Spain and 7 ½ days in Turkey.

4. ISA is punitive, not preventive

It speaks volumes that Noordin Mat Top the Malaysian who was alleged to be responsible for the Bali bombing and killed recently by the Indonesian authorities had never been arrested under the ISA.

At the same time, out of the 10,000 plus Malaysians who have been detained under the ISA since 1960, how many have been subsequently charged in an open court of law? We don't recall any.

This simple fact shows that the ISA has been used all along as a convenient yet insidious suppression apparatus of the BN government.

As a former ISA detainee and having undergone harrowing sessions with the Special Branch, it was clear that our detention under Operation Lalang was purely punitive and a deterrent to further involvement in social and political activism.

It could not have been preventive and I could not have been "rehabilitated" after 445 days of detention for the simple reason that I have spoken up and written more than I did twenty years ago.

Licence to torture

The whole notion of ISA detention being "rehabilitation" of the detainee is complete fantasy. You either come out of Kamunting Detention Camp broken or you come out more together, more determined to put an end to injustice and exploitation.

5. Ratify the Convention Against Torture

The current Parliament should instead be looking at the question of abuse of powers by the police and other enforcement officers especially after the demise of Teoh Beng Hock.

Suaram's 2007 Human Rights Report documents two cases of deaths during interrogation by the MAAC.

So Teoh's case is by no means unusual.

When so many cases of torture of ISA detainees by the police have been exposed and the latter still gets away with impunity, we can say the ISA gives the police a licence to torture.

The prime minister should prove his credibility as a reformer by implementing the most important of the recommendations by the Royal Commission on the Police, namely establishing the Independent Police Complaints Misconduct Committee.

More than that, his government should ratify the Convention against Torture to ensure that there is accountability and transparency in Malaysian law enforcement.

Without doubt, the ISA has been the most loathed law in Malaysia for nearly fifty years. The government would be misjudging the peoples' patience by amending it to another form.

"I Say Abolish" the ISA simply because detention without trial diminishes the rights of all citizens by giving the state powers that cannot be reviewed by the courts and corrupting standards central to the administration of justice.

KUA KIA SOONG is the director of human rights movement Suaram. He was detained under ISA in 1987 and wrote about his experience in '445 Days Behind the Wire'.

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