Malaysia’s ISA: No limits

The Internal Security Act (ISA) in Malaysia has taken on the dimensions of the feared bogeyman that mothers threaten unyielding children with. Any opposition to government policies is being seen as a good case for invoking the ISA. The excuses have begun to verge on the whimsical. The implications are ominous.

In September 2002, Malaysian Deputy Home Affairs Minister Zainal Abidin Zin suggested the newest possible use of the ISA, one that the Prime Minister Mahathir Mohammed would no doubt have prescribed himself. According to Mr. Zainal Abidin Zin the ISA would be used “as a last resort” against “extremists” and “chauvinists” who oppose and give a “racial” twist to the government’s new policy of using English to teach Mathematics and Science in schools. He was supplementing Dr Mahathir’s statement, warning “extremist groups”, ostensibly opposing groups of Chinese educationists against “playing with fire”.

A Chinese educational association had been at the forefront of protests against the new plan for a variety of reasons; nevertheless, it had also called for public deliberations on the matter, emphasising that the demand was linked to school education in general and should not be classed as an ethnicity-specific issue. The association also objected – quite rightly – to the Prime Minister’s use of the word “extremists.”

Under the ISA, a person may be detained by the police for up to 60 days without trial for an act which “prejudices the security” of the country. After 60 days, the detention can be extended for a period of two years, with the approval of the Minister of Home Affairs. It can then be renewed for successive two-year periods. A detainee can thus expect to remain in detention indefinitely.

During the first 60 days of detention, detainees are allowed no family visits and no access to legal counsel. If a further two-year detention is approved, they are taken to the infamous Kamunting Detention Centre, where they are held in isolation in small, poorly ventilated cells.

The ISA has certainly covered a lot of ground. Passed in 1960 as a law intended to deal with a perceived communist threat, it has long been used for a host of offences unrelated to ‘communist threats’ or, for that matter, to internal security. More than four decades later, it continues to trample on the human rights of Malaysians. Those previously detained under the Act include political activists, religious minorities such as Shias, journalists, student leaders, traders, academicians, NGO activists and, most recently, 10 persons accused of spreading “rumours” of bomb attacks via email. The recent ISA arrests of alleged ‘rumour-mongers’ has led to a heightened fear that the authorities will use this as an excuse to increase police surveillance of the Internet.

One of the most recent and high profile cases has been that of six activists, all of whom have been accused of plotting to overthrow the government by “militant” means. Dr Badrulamin Bahron, Mohamed Ezam Mohamed Nor, Tian Chua, Sari Sungib and Lokman Noor Adam, all leaders of the opposition Keadilan party, and Hishamuddin Rais, a columnist and filmmaker, were arrested in April 2001 in a move seen as a politically-motivated attempt to stifle dissent. No evidence to support these allegations was ever made public.

On 6 September 2002, the Federal Court heard the habeas corpus application of five ISA detainees – Tian Chua, Hishamuddin Rais, Sari Sungib, Mohamed Ezam Mohamed Nor, and one Raja Petra Raja Kamaruddin who had been arrested earlier. The court ruled that their initial 60-day detention made under section 73 of the ISA was unlawful and that the police had acted in bad faith in detaining them. However, the decision did not result in the immediate release of the detainees as the judges further held that a separate habeas corpus application had to be filed since the decision did not affect the two-year detention order made by the Home Minister, even though the latter order was made pursuant to recommendations made by the police.

Of these five, Mohamed Ezam Mohamed Nor was convicted of an offence under the Official Secrets Act and is now serving a two-year jail term, while Raja Petra Raja Kamaruddin had been released before the expiry of the initial 60-day detention period.

In an unashamed display of disregard for the judiciary and the rule of law, Deputy Prime Minister and Home Minister Abdullah Ahmed Badawi said the activists would not be released because the government had ordered their detention on the basis of valid security concerns. “I read the reasons why they must be detained, and I am aware that the questions that were asked during the period were also questions relevant to security matters and not just a case asking about personal questions,” Mr Badawi said.

This is not borne out by the Federal Court ruling. The judge stated that “clearly, from the affidavits which it highlighted above, the questions that were asked were more on the appellants’ political activities and for intelligence gathering.” In refusing to revoke the detention order, Mr Badawi clearly demonstrated that he considers himself above the law.

Lawless Acts

In Dr Mahathir’s Malaysia, and particularly with regard to ISA-related cases, the judiciary has in several instances toed the government line. The judicial process was wilfully subverted, for example, in the Anwar Ibrahim case. The trial that eventually led to a six-year prison sentence for the former deputy prime minister was widely seen as unfair to the defendant. The defence lawyers were hounded by arbitrary accusations of contempt of court, and failed to receive protection from the court against intimidation and harassment by the police. The prosecution, at the end of its case, was allowed to amend the charges, denying the defendant the opportunity to refute the original charges of sexual misconduct.

The government’s contempt for the judiciary is brilliantly captured in the following statement by Dr Mahathir, made in 1988 in the context of amendments that effectively undermined the judiciary’s power to review and interpret legislation passed by Parliament. The Prime Minister said the amendments were required because “the courts have decided that in enforcing the law, they are bound by their interpretations and not by the reasons for which Parliament formulated these laws… when a judge feels he has to first prove his independence, then justice takes a back seat.”

And to prove their independence, judges “often bend over backwards to award decisions in favour of those challenging the government,” he added.

Fifteen years on, little has changed. In the few cases in which the courts rule in favour of “those challenging the government”, all the government has to do is ignore the ruling.

But now, Dr Mahathir is unwilling to take even that chance. In an interview with the BBC on 12 November 2002 he stated that decisions to hold suspects under ISA should not be questioned in courts of law. He added that the ISA would be amended to prevent the judiciary from interfering with the executive’s decisions on national security matters.

Such a move will practically paralyse an already emasculated judiciary. It would also deprive current detainees of any remaining chances of challenging their detention. A drastic increase in the number of detentions under ISA may also be expected.

Ghostly Group

By way of its contribution to the 'war against terror', the government has detained under the ISA a number of persons allegedly having links to the invisible, but apparently extremely dangerous, Malaysian Mujahidin Group, or KMM. The KMM, the government claims, is an “international terrorist organisation that is attempting to topple the government and establish an Islamic state by force.”

Since January 2002, about 42 persons have been arrested under the ISA for alleged links with the KMM, bringing the total number of suspected militants arrested since the crackdown against them from last year to 74 persons, out of which only two persons are known to have been released. According to the official Malaysian Human Rights Commission, or SUHAKAM, there are 113 persons being detained under the ISA at the Kamunting Detention Camp. The whereabouts of the more recent arrested persons are unknown, as the police have detained them in secret locations.

No evidence has been brought to show that the shadowy KMM actually exists. The government claims it is a secret organisation but refuses to say how it got wind of it. No specific acts or activities have been ascribed to it. No evidence moreover has been brought to show that it has links with Al Qaeda or with other groups in the region. Police claimed some of the detainees had received training at a military camp of the separatist Moro Islamic Liberation Front (MILF) in the Southern Philippines. But the Inter Press Service reported that the MILF had denied having links with the ‘KMM’. No foreigners were allowed into their camps, the news service quoted the MILF as saying.

Many remain in detention for their ‘KMM’ links. And, with the increasing pressure on countries to demonstrate their willingness to cooperate with the ‘war on terror’ and the attack in Bali closer home, the Malaysian government is unlikely to allow the ‘KMM’ to fade away easily.

In December 2002 the ISA review board made recommendations for the release of the pro-reform ISA detainees. It also recommended that the government either repeal the ISA or amend it to include international human rights standards, such as the right to a fair trial. Similar recommendations made in the past have gone unheeded. In the post-Bali situation, this latest set of proposals is likely to meet the same fate.