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FAC News - Friday, September 20, 2002 8:59 AM LETTER TO FOREIGN MISSIONS, FOREIGN GOVERNMENTS, INTERNATIONAL NON-GOVERNMENTAL ORGANISATIONS, BAR COUNCILS, AND HUMAN RIGHTS GROUPS Dear Sir/Madam, We would like
to provide you with our views on recent developments in The ISA was
enacted in 1960 to combat the Communist insurgency in Even though
In April 2001, ten National Justice Party (Keadilan) leaders and political activists linked to the Reformasi Movement in Malaysia were arrested and detained under the ISA, based solely on the Government’s incredible claim that they were involved in a plot to topple the government through violent, militant means. The ten were accused of conspiring to bring in guns, bombs, and grenade launchers to accomplish their purpose. These allegations were just that – allegations. The Government offered no evidence whatsoever to back up its claims, as arrest and detention under the ISA requires no evidence. A mere “reason to believe” that one is “a threat to national security” is sufficient enough grounds for arrest and detention under the ISA. Demonstrating the arrogance of power, the Government said that it does not need to prove anything. The ten then
took their case to court and filed writs of habeas corpus.
Two of them filed their writs with the Shah Alam High Court, which
immediately released them on the grounds that their arrests were
done in bad faith (mala fide)
and that there was no evidence they were indeed a threat to national
security. The Shah Alam court said that their detention was illegal
and violated The Shah Alam High Court went on to say that the ISA was an outdated law, enacted specifically to combat Communist terrorism, and that it was time the law was repealed. The Court also took the police to task for violating the Constitution and the fundamental right of the detainees by denying them access to legal counsel and not informing them of the reasons for their arrest. Five other
detainees, the so-called ISA-5, filed their writs of habeas corpus
in another court, but that judge ignored the decision of the Shah
Alam court and ruled against them. The judge in this case was the
same person who presided over the first trial of former Deputy Prime
Minister Anwar Ibrahim, a trial whose conduct was condemned widely
by bar councils, governments, and human rights organisations around
the world. The five detainees appealed this decision, first to the
After considering
the case for half-a-year, on But despite the Court’s decision, the detainees still have not been released! This is due to a legal technicality that the Government can easily correct in the interest of justice. When the ISA-5 filed their writs of habeas corpus, it was to overturn their original arrests under Section 73 of the Internal Security Act, which allows for detention up to 60 days. In theory, during this period, the police interrogate the prisoners to develop further information about their crime. (However, the five detainees have said that when the police interrogated them, the investigators never asked about weapons or the alleged plot to overthrow the government. Instead, the police pumped them for political intelligence on what the opposition party, Keadilan, was doing and how it is organized.) After the initial 60-day detention period under Section 73, the Government’s Home Minister can order that the persons be “further detained” under Section 8 of ISA. If Section 8 is utilized, the assumption is that the police have developed sufficient information to justify further detention. While the police have the authority to arrest and detain under Section 73, it is the Home Minister -- in this case, Deputy Prime Minister Abdullah Ahmad Badawi -- who makes the decision under Section 8 to keep those who are deemed “threats to national security” in prison for two years, based upon the information that the police provides him. The Federal Court, however, said that while the arrest and 60-day detention under Section 73 had no legal basis, it could not rule on the subsequent two-year detention order under Section 8 because the detainees had never filed a writ of habeas corpus to cover that action. This is a legal technicality at best and judicial cowardice at worst. It appears the Federal Court did not want to challenge the Government by declaring the Home Minister’s two-year detention order illegal and ordering the detainees’ release from prison. For their part, the detainees never filed a writ of habeas corpus against their two-year detention under Section 8, because logic dictates that if the initial arrest under Section 73 is illegal, then everything that follows from that action also is illegal. That is common sense and common law. It is an easy and logical conclusion to make. Since the original arrest is illegal and unsubstantiated by evidence, then by definition the Home Minister’s detention order also is illegal and unsubstantiated by evidence. Either the Home Minister was misinformed and misled by the police when they recommended further detention, or the Home Minister also acted in bad faith by ordering the detentions in the absence of any proof of wrong-doing. The government
currently has three choices. It currently is hiding behind this
legal technicality and refuses to release the ISA detainees. In
effect, it says that if the detainees want to be free, then they
should file a second writ of habeas corpus to challenge their
detention by the Home Minister. This is legal harassment by the
government, whose sole purpose is to keep the detainees locked up
in prison for as long as possible. In the end, the Federal Court
will have no choice but to declare the detention by the Home Minister
illegal. Not to do so would fly in the face of every legal principle
in The second option is far more ominous and has been hinted at by Deputy Home Minister Zainal Abidin Zin who told relatives of the detainees, “We may abide by the court’s decision but the police can take other actions, like arrest them again when they are released.” Such an action would be nothing short of contempt of court and once again demonstrates that the Government has no respect for the law. For the past 18 months, the Government has not been able to develop any evidence to back up its claims, and re-arresting the detainees will not change this. The Government still will have no evidence, because none exists. The Government’s claims will be just as false as before, and the arrests will be just as illegal. The third option is the obvious one – and also the one that brings justice and freedom to the ISA detainees in the swiftest manner. As Home Minister, Deputy Prime Minister Abdullah Ahmad Badawi should simply undo the wrong that has been done. He should sign a second order releasing them from their detention. This
position is supported unanimously by We ask you to join us in urging the Malaysian Government, and specifically the Deputy Prime Minister and Home Minister, to end this illegal detention and release the detainees immediately. Now is the time for all who believe in freedom and human rights to stand up for justice and make their views known. Yours truly, Datin President, National Justice Party (Keadilan)
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