6 April 2009 | reported in malaysiaToday | By BUNN NAGARA, The Star
PRIME Minister Datuk Seri Najib Tun Razak’s first statement upon his inauguration concerned, among other things, holding a “comprehensive review” of the Internal Security Act (ISA).
The ISA is controversial in providing for arbitrary arrest and detention without trial, and allowing an unelected police force to decide initially on these matters in the absence of elected leaders. It is widely regarded as undemocratic, unconstitutional and unbecoming of a country approaching developed status.
The law originated in the British-era Emergency Regulations Ordinance (1948), becoming the ISA in 1960 when the Emergency itself had ended. Preventive detention was meant against communist insurgents only, but instead it expanded beyond its original scope and application.
A review needs to consider the ISA’s impact without being distracted by partisan sentiment. There is a risk of public misperception that the Government is necessarily for the ISA while the Opposition is necessarily against it.
But statements are coming from within Barisan Nasional to grow out of the ISA and its mindset. The Human Rights Commission of Malaysia, Suhakam, had also studied the ISA and concluded in 2003 that it should be repealed.
Unpopular and unjust laws are indefensible, so the question is when, rather than if, the ISA would be repealed. Even its ardent advocates do not pretend it will remain forever.
Once the law is gone, the leaders responsible will enjoy unprecedented support across the social, ethnic and political spectrums. Given the ISA’s widespread controversy, the goodwill will be both national and international.
Repealing the law is actually to acknowledge that the emperor has no clothes, because the Government never really needed the ISA. Either enough laws already exist with overlapping coverage to safeguard actual national security, or new laws consistent with universal human rights can be enacted to plug any loopholes in its absence.
The other problem is that the ISA is a short cut that encourages the authorities to be lazy, skipping the professional investigative work of finding incriminating evidence against suspects. Thus the related problem of neglecting due process, thereby infringing on democratic rights and constitutional provisions.
Expectedly, the ISA has also been abused. But even without abuse, a widening rift has emerged between the letter of the law and the justice-imbued spirit of the law.
The catch-all arbitrariness of the ISA works for lazy or vengeful elements in the police, but benefits no civilian authority. The police may detain anyone for 60 hours without charge, without the consent or knowledge of even the Home Minister, and in those 60 hours, detainees can be coerced into justifying their detention indefinitely.
Malaysians will not know that the Opposition will retain the ISA if it came to power, since the Opposition is unlikely to win federal power. That means so long as the Barisan remains in charge, perhaps indefinitely, it will continue to suffer the ill will of the ISA without any conceivable benefit.
The ISA as a millstone round the neck of Government leaders cannot be underestimated. At home and abroad, the Opposition will continue to be admired for opposing it, while the incumbents will be targeted for defending and maintaining it.
The ISA also lumps Malaysia together with some of the worst regimes on the planet, when most countries are moving towards more enlightened governance. The question is whether the ISA is worth all that trouble.
A bold new prime minister does not happen often in Malaysia, so it is a rare opportunity to anticipate some welcome changes. While it appears that only a strong, self-assured leader can have the courage to repeal the ISA, nobody is obstructing a repeal that can only win plaudits for the Government and steal the thunder from the Opposition.