| Tuesday, 23-Oct-2001 4:42 PM
Is the ISA Constitutional?
Justice must not only be done but
must also be seen to be done. Not perfect English, but how many
times have we heard this said before? And do we know what this statement
really means? I suppose, a more appropriate question would be: would
you receive justice under Malaysia's infamous and dreaded Internal
Security Act (ISA)?
On 10 April 2001, three National
Justice Party (keADILan) leaders and one political activist - Tian
Chua, Hishamuddin Rais, Saari Sungib and Ezam Mohd Noor - were arrested
(in that order) under the ISA. The following day, Raja Petra Kamarudin,
the Director of the Free Anwar Campaign, was added to the list.
And what do all these people have
in common? All are known Anwar Ibrahim supporters and Reformasi
activists. Over the next two weeks, five more Anwarists were rounded
up - N. Gobalakrishnan, Abdul Ghani Haroon, Lokman Noor Adam, Badaruddin
Ismail and Dr Badrulamin Bahron.
On 25 April 2001, families of the
first five arrested on 10 and 11 April filed Writs of Habeas Corpus
in the Kuala Lumpur High Court seeking to get their arrest declared
illegal. The High Court, however, ruled their arrest as valid and
that the police had not acted in bad faith (Mala Fide) as claimed
by the families in their Writs.
The families of the five, one of whom
(Raja Petra) has since been released, then filed Petitions of Appeal
on 17 May 2001. In their Petitions, which were later supported by
Affidavits signed by all ten ISA detainees, it was revealed that
the detainees' interrogation had no relevance to the reason of the
arrest as announced by the Inspector General of Police (IGP) at
a press conference a few days after the arrest.
In the said press conference, the
IGP had announced that the ten had planned to bring in bombs, guns,
grenade launchers, and much more, to create chaos during the planned
14 April 2001 or "Black 14" demonstration.
But they were never asked about any
of this during their interrogation claimed the detainees. The detainees
had, in fact, all signed statements - a record of their interrogation
- and these signed statements could support what they were claiming.
Understandably, the police's Affidavit
in Reply just gave a blanket denial without offering any evidence
to support this denial. The police claimed that they were not able
to table the detainees' signed statements because these were national
secrets. The police did not deny, though, that the detainees were
interrogated about all and sundry, totally unrelated to the reason
of their arrest. The police defended this by saying that this is
part of intelligence gathering. In short, the police never denied
that the interrogation was aimed at extracting information about
party matters as claimed by the detainees.
On Monday, 15 October 2001, the Kuala
Lumpur Federal Court finally heard the appeal. On the bench were
five Judges - the Chief Justice, Tan Sri Mohamed Dzaiddin Abdullah,
and Justices Tan Sri Datuk Steve Shim Lip Kiong, Tan Sri Dato Wan
Adnan Wan Ismail, Dato Hj Malek Hj Daud, and Dato Siti Norma Yaakob.
The defence was led by Counsel Haji
Sulaiman Abdullah and supported by Sivarasa Rasiah, Christopher
Leong, Malik Imtiaz Sarwar, and Moganambal Murugappan. Roy Rajasingham
from the Malaysian Bar Council held a Watching Brief.
The court was told that the ISA detainees
were arrested because of their alleged involvement in the Reformasi
Movement. According to the police, those detained had planned to
hold a demonstration on 14 April 2001 called "Black 14". April 14
was the second anniversary of Anwar Ibrahim's sentencing in the
first (corruption) trial and the Judge who had sentenced Anwar was
The Federal Court was further told
that, since the High Court Judge hearing the ISA detainees' Writ
of Habeas Corpus application was the same Judge in the Anwar trial
- Augustine Paul - he should not have heard the case and should
instead have recused himself.
The counsel argued that all those
arrested were aligned to Anwar Ibrahim and were associated with
the Reformasi Movement - which is basically a movement in support
of Anwar Ibrahim. Furthermore, the planned "Black 14" demonstration
was a demonstration in protest of this verdict against Anwar. Therefore,
"Black 14" could be viewed as a protest against the Judge and the
Judge could be perceived as having a vested interest in the case
so he should not have heard the case in the first place.
Furthermore, the detainees were being
held incommunicado and were being denied legal representation though
Article 5 (3) of the Federal Constitution clearly guarantees every
Malaysian this right. The fact that the detainees were denied legal
counsel is an infringement of their fundamental right.
The Court, however, felt that just
because Augustine Paul could be perceived as biased due to this
vested interest, this did not mean he was in fact biased. The defence,
therefore, had no basis to ask that his verdict be overturned. The
defence lost the first round.
The defence then went into the next
point - the ISA itself and the history behind why it was introduced.
The Deputy Prime Minister then, the late Tun Abdul Razak Hussein,
tabled the ISA bill in Parliament soon after independence or Merdeka
at the height of the Communist insurgency in Malaysia. When it was
tabled, the Member of Parliament for Ipoh, Dr Senivasagam, stood
up to ask the purpose of this new Act. And Tun Razak replied that
it was specifically to combat the Communists at the Malaysia-Thai
When Tun Razak proposed the ISA, he
knew exactly what he wanted. He wanted a weapon to fight the Communists.
It was "to prevent the legitimate government from being toppled
though illegitimate or violent means".
Article 149 of the Federal Constitution allows laws to be enacted
to safeguard the security of the nation. Article 149 in itself violates
the Federal Constitution and denies the fundamental rights of Malaysians
as guaranteed under the Constitution. Therefore, to ensure that
these rights would not be violated, Article 149 is very specific
and restrictive in its application. And the ISA was one such law
enacted through Article 149.
However, the ISA was never meant to
be a law that gives the police wide and unlimited powers of arrest.
For example, the police may invoke the ISA only if "a substantial
body of persons has acted prejudicial to the security of the nation".
But now, the ISA is being used in the absence of this "substantial
body of persons" and as a prevention of crime rather than because
of an act already done as stipulated under the provisions of the
The manner in which the ISA is presently being used is unconstitutional.
When the ISA was first enacted it was very specific in its purpose
- which was to combat the Communists. It was also very specific
about when it could be invoked - which is when an act has already
been committed. As it is now, no act needs to be committed yet for
one to get arrested under the ISA and it need not be against a substantial
body of persons.
The language of the Act needs to be
seriously considered. It says that the body of persons must have
acted in a manner prejudicial to the security of the nation - "acted"
as in the past tense. Today, the ISA is used as a preventive law.
One need not act yet. One only needs to be thinking of acting and
that is enough grounds for arrest under the ISA.
Another issue is on the grounds for
invoking the ISA. If the police "have reason to believe" that you
"may" commit an act prejudicial to the security of the nation, then
that is grounds enough. This is very subjective. Who determines
this? What reason do you have for believing this? Is reason to believe
"Reason to believe" is not "reasonable grounds to believe". In "reason
to believe", this is merely your opinion. Because you believe it,
then it is true. This is where it becomes subjective. But if you
are required to have "reasonable grounds to believe", then the element
of proof comes in.
When you need to have reasonable grounds
to believe, the reasonable grounds must be stated. This is no more
subjective as we are no longer dealing with mere opinions but tangible
The ISA, which was born out of necessity,
has already outlived its usefulness. The Communists that the ISA
was enacted to combat have all gone and no longer exist. The ISA,
however, remains and is used instead against government critics.
The ISA of today is not for detaining
those doing mischief. It is used as a law for preventing mischief.
And the interpretation of what constitutes mischief and what act
you committed gives rise to this suspicion is all up to the powers-that