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The Internal Security Act 1960 (ISA) (Malay: Akta Keselamatan Dalam Negeri) is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances.

History

Preventive detention first became a feature of the then Malaya in 1948 primarily to combat the armed insurgency of the Malayan Communist Party during the Malayan Emergency. The Emergency Regulations Ordinance 1948 was made, following the proclamation of an emergency, by the British High Commissioner Sir Edward Gent. It allowed the detention of persons for any period not exceeding one year. The 1948 ordinance was primarily made to counter acts of violence and, conceivably, preventive detention was meant to be temporary in application. The emergency ended in 1960 and with it ended the powers contained in the that ordinance as it was repealed. The power of preventive detention was however not relinquished and in fact became an embedded feature of Malaysian law. In 1960 itself, the government passed the Internal Security Act under Article 149 of the Malaysian Constitution. It permitted the detention, at the discretion of the Home Minister, without charge or trial of any person in respect of whom the Home Minister was satisfied that such detention was necessary to prevent him or her from acting in any manner prejudicial to national security or to the maintenance of essential services or to the economic life in Malaysia. The ISA is one of the most controversial Acts enacted under Article 149 of the Malaysian Constitution.

Section 8(1) of the ISA provides that ‘(i)f the minister is satisfied that the detention of any person is necessary …’ then s/he may issue an order for his/her detention. The three grounds given in Section 8(1) upon which the order may be based is where a person has acted in any manner prejudicial to the:

a) security of Malaysia or part thereof; or

b) maintenance of essential services; or

c) economic life.

The power to detain seems to be restricted by Section 8(1) to a period not exceeding two years but the restriction is really illusionary because, by virtue of Section 8(7), the duration of the detention order may be extended for a further period not exceeding two years and thereafter for further periods not exceeding two years at a time. The extension to the detention order may be made on the same ground as those on which the original order was based or on different grounds. In delivering the judgment of the Court, Steve L.K. Shim CJ (Sabah & Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir (2003) 6 AMR 497 at page 506, has accepted that under Section 8 of the ISA the Minister has been conferred powers of preventive detention that ‘can be said to be draconian in nature’ but nevertheless valid under the Malaysian Constitution. In addition, preventive detention is also now allowed by the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights.

Article 149 of the Constitution of Malaysia under which a person may be detained is characterised by subjective language. Such terms as ‘substantial body’, ‘substantial number’, ‘cause to fear’, ‘excite disaffection’, ‘promote feelings of ill-will and hostility’, all embody wide areas of discretionary interpretation.

Article 151 of the Malaysian Constitution gives to any person detained without trial (under the special powers against subversion) certain administrative rights. By the terms of Article 151 the authority, on whose order a person is detained, shall, as soon as may be, inform the detainee of the grounds of detention and the allegations of fact on which the order is based. The detainee shall also be given an opportunity within three months, of making representations against the order to an Advisory Board . The Advisory Board as the name implies is not a court. Its determinations are also mere recommendations that the government is under no obligation to accept. It may also be handicapped in its deliberations by the discretionary power of the government to withhold facts, the disclosure of which would, in the executive’s opinion be against national interest.

Any person may be detained by the police for up to 60 days without trial for an act which allegedly threatens the security of the country or any part thereof. After 60 days, one may be further detained for a period of two years each, to be approved by the Minister of Home Affairs, thus permitting indefinite detention without trial. In 1989, the powers of the Minister under the legislation was made immune to judicial review by virtue of amendments to the Act, only allowing the courts to examine and review technical matters pertaining to the ISA arrest.

Reform

The government is in the final stages of revising the Internal Security Act. Home Minister Datuk Seri Hishammuddin Tun Hussein has stated that ISA amendments will revolve around five areas – the length of detention, rights and treatment of detainees and their families, the power of the Home Minister, the use of ISA for political reasons and detention without trial. ^[1] In revising the ISA, the government met with key stakeholders to discuss amendments. Hishammuddin and Home Ministry’s officials met for about three hours with representatives from the Attorney-General’s Chambers, the Bar Council, the Barisan Nasional Backbenchers Club, the National Council for Women’s Organisations and the National Civics Bureau. The Home Minister said that during the discussions, all parties agreed that there should be a law in place to protect the people against terrorism and militancy. ^[2] The Law Reform Committee set up to review detentions under the Internal Security Act (ISA) has submitted its amendment proposals to the Cabinet. Parliament is expected to conclude its review of the amendments during its current sitting. ^[3]

Legislation

Graffito in Kuala Lumpur advocating abolition of the Internal Security Act.

Relevant sections of the legislation are as follows:

Section 73(1) Internal Security Act 1960: "Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe that there are grounds which would justify his detention under section 8; and that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof."

Section 8 ISA: Power to order detention or restriction of persons. "(i) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years."

A detenu can make representations against his/her detention if an order of detention has been made against the detenu by the Minister under Section 8(1) of the ISA but under Section 73 however, the detenu seems to have no such right. Generally, the attitude of the Malaysian courts in respect of detention under Section 73 is that the courts have jurisdiction only in regard to any question on compliance with the procedural requirements of the ISA and they seldom grant any substantive rights to the detenu.

The stated purpose of the ISA was to deter communist activity in Malaysia during the Malayan Emergency and afterwards. The first Prime Minister of Malaysia, Tunku Abdul Rahman, defined the purpose of the act as to "be used solely against the communists...My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent". The third Prime Minister, Tun Hussein Onn, stated at the same time that his administration had enforced the act only with a view to curbing communist activity, and not to repress "lawful political opposition and democratic citizen activity".^[4]

In response to criticism that the ISA was not democratic or was too open to abuse, the first internal security minister, Ismail Abdul Rahman, stated:

Judgments

The Malaysian courts have not been notably vigilant to prevent the executive employing preventive detention as an easy substitute for adequate penal laws and using it as a means to suppress political opposition and dissent. ‘Anti-government’ has at times been simply equated to being ‘anti-national’. In their Report, the Reid Commission (that was entrusted with the job of drafting the Merdeka Constitution) mentioned that the rights they were recommending had already been firmly established throughout Malaya and the guarantee of the fundamental rights would be provided by the mechanisms of: the Constitution being the supreme law; ‘the power and duty of the Courts to enforce these rights’; and, ‘the Courts would annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’. [See Chapter IX, Fundamental Rights: Constitutional Guarantees, Para 161 p. 70 of the Report.]

Hardial Singh Khaira [Is it the ISA per se or the Interpretations Given by the Judiciary that Makes it Such a Draconian Law Now? [4], in his analysis of judgments related to the ISA maintains that 'not only have the Malaysian courts failed to annul the encroachments on the fundamental rights but their lack of judicial activism has in fact subverted those rights further. The failure of the Malaysian courts in relation to the ISA starts with the fact that they have generally accepted the subjective satisfaction of the executive for justifying the detention of an individual.' He further adds that the 'current approach of the Malaysian courts only serves to reduce executive accountability and respect for human rights under the rule of law.'

Detention

ISA detainees are typically held at the Kamunting Detention Center.

Release

Although the government may release detainees unconditionally, in some cases, it has required those being released to make a public "confession" on television and radio. ^[6]

The case of Raja Petra Kamarudin, a well known blogger of Malaysia Today website, detained under the Internal Security Act on 12 September 2008 and was subsequently released 56 days later, was due to the habeas corpus filed by his lawyer citing unlawful detention by the Home Ministry. The High court, on 7 November 2008, over ruled that detention and he was set free on the same day.

Detainees

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The following list shows known current and former detainees under the Internal Security Act. ^[7]

Criticism

An artist's portrayal of the Internal Security Act. The law has attracted criticism when dealing with civil rights issues.

Due to the alleged draconian nature of the ISA, several human rights organisations and opposition political parties have strongly criticised the act and called for its repeal. Foreign governments, notably that of the United States, have also pressured the government to repeal the act.

Domestic

Several opposition parties such as the Pan-Malaysian Islamic Party (PAS), the Democratic Action Party (DAP) and Parti Keadilan Rakyat (PKR) have spoken out against the ISA. Many of them have leaders or prominent members who were held under the ISA, such as Muhammad Sabu of PAS, Lim Kit Siang, Karpal Singh and Lim Guan Eng of the DAP, and Anwar Ibrahim of the PKR. Previously in the 1960s, the law had been denounced by such opposition leaders as Tan Chee Khoon, who said:

However, several politicians from the Barisan Nasional coalition, including its largest component party, the United Malays National Organisation (UMNO or Umno), that has governed Malaysia since independence have also criticised the ISA. The fifth Prime Minister of Malaysia, Abdullah Ahmad Badawi, went on the record in 1988 to state "If we want to save Malaysia and Umno, Dr Mahathir (then Prime Minister) must be removed. He uses draconian laws such as the Internal Security Act to silence his critics.^{[citation needed]}" The year before, he had also stated "Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law." In 2003 when he became Prime Minister, however, Abdullah called the ISA "a necessary law," and argued "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society." But opposition parties believe it is a threat to Umno rather than a threat to the country.

Prior to becoming Prime Minister, Mahathir had also adhered to a critical view of the ISA. In 1966, when Mahathir spoke out in support of the Internal Security (Amendment) Bill 1966 as a backbencher, he stated that "no one in his right senses like[s] the ISA. It is in fact a negation of all the principles of democracy."^[10] After becoming Prime Minister however the former premier had little if any hesitation using the law to suppress what he termed racialism but was seen by some as a move against his political opponents, the most notable of events being the infamous Operasi Lalang in 1987.

Recently former rapporteur to the United Nations Param Cumaraswamy, who is on record for his opposition of the ISA, suggested its use on former Malaysian Prime Minister Dr. Mahathir for alleged racial incitement by the latter at a speech in Johor Bahru on May 17, 2008, arguing that the reasoning of the former premier in the use of the law would be applicable against him now in light of his own racial excesses^[11] Such tit for tat justification however was condemned by various groups, notably PAS for incosistancy and double standards shown by the former rapporteur in his position as regards the ISA.^[12]

In Kota Kinabalu, United Pasokmomogun Kadazandusun Murut Organisation (UPKO) led by its Secretary-General Datuk Wilfred Madius Tangau, on September 23, 2008, joined its 3 other Barisan Nasional (BN) counterparts MCA, Gerakan and MIC, petitioning Government review of ISA. Madius said the party supports former de-facto Law Minister Datuk Zaid Ibrahim's position that the ISA should only be used against those who posed a threat to national security, such as terrorists: "Clearly in the case of Seputeh MP, Teresa Kok, Raja Petra Kamaruddin, and Sin Chew Daily reporter, Tan Hoon Cheng, there are so many other public order laws that can be used against them if, at all, there is a case to do so."^[13]

Foreign

In the past, the United States government has criticised the Malaysian government for implementing the ISA, but it has muted its criticism since the advent of the "war on terror."

Notable uses of the ISA

Since 1960 when the Act was enacted, thousands of people including trade unionists, student leaders, labour activists, political activists, religious groups, academicians, NGO activists have been arrested under the ISA. Many political activists in the past have been detained for more than a decade.^{[citation needed]}

Since 2005, 10,662 people have been arrested under the ISA in the past 44 years, 4,139 were issued with formal detention orders and 2,066 were served with restriction orders governing their activities and where they live. In addition, 12 people were executed for offences under the ISA between 1984 and 1993. Source: Figures were provided in a written answer by Prime Minister Abdullah Ahmad Badawi, who is also Minister for Internal Security, to parliamentary opposition leader Lim Kit Siang, whose statement was quoted by AFP in newsreports dated 3 Feb 2005

The ISA has been consistently used against people who criticise the government and defend human rights. Known as the "white terror", it has been the most feared and despised, yet convenient tool for the state to suppress opposition and open debate. The Act is seen by some as an instrument maintained by the ruling government to control public life and civil society.^{[citation needed]}

The ISA was used extensively during the 1987 Operation Lalang in which Opposition members were silenced by the UMNO government through the use of ISA. Many opposition leaders were detained without trial, evidence or reason.^{[citation needed]} The ISA was also used to detain Anwar Ibrahim.

The most recent application of ISA was against Hindu activists belonging to the group HINDRAF who voiced out against the government policies that resulted in Malaysian Indians being marginalized and sidelined from the country's development. In response, Prime Minister Abdullah Ahmad Badawi personally signed the detention order that allows the leaders of HINDRAF to be detained without trial for two years, with the option for the detention order to be renewed indefinitely.^{[citation needed]}

Protests against ISA

On August 1, 2009 about 20,000 people took part in anti-ISA protests in Kuala Lumpur.^[14] On the previous day, the police set up roadblocks in order to control the protests.^[15]Police fired tear gas and water cannons when confronted by protestors and made numerous detentions. ^[16]

See also

• Kamunting Detention Center (KEMTA)
• Internal Security Act (Singapore)
• Operation Lalang

Notes and references

Other references

• text of the Internal Security Act (Act 82) at the Attorney General’s website
• Chow, Kum Hor (Nov. 6, 2005). "9/11 changed Hu's view of ISA". New Sunday Times, p. 8–9.
• Kamaruddin, Raja Petra (Oct. 31, 2005). "A taste of one’s own medicine". Malaysia Today.
• Kamaruddin, Raja Petra (Nov. 4, 2005). "The true meaning of political doublespeak". Malaysia Today.
• Khaira, Hardial Singh, Preventive Detention: Part I – Constitutional Rights and the Executive, [2007] 1 MLJ lxiii; [2007] 1 MLJA 63
• Khaira, Hardial Singh, Preventive Detention: Part II – Police Power To Arrest And Detain Pending Enquiries [2007] 4 MLJ cxxxii; [2007] 4 MLJA 132
• Khaira, Hardial Singh, Is it the ISA per se or the Interpretations Given by the Judiciary that Makes it Such a Draconian Law Now? [6][7]
• (Sept, 1999). "Document - Malaysia: Human rights undermined: Restrictive laws in a parliamentary democracy", Chapter 4. Amnesty International.