50 CONTROVERSIAL YEARS OF THE ISA – THE ISA MUST BE ABOLISHED, NOT AMENDED

GERAKAN MANSUHKAN ISA- PRESS STATEMENT: 26th July 2010

 

50 CONTROVERSIAL YEARS OF THE ISA –
THE ISA MUST BE ABOLISHED, NOT AMENDED

50 Years of the ISA
On 1 August, the Internal Security Act (ISA) will have been in existence for 50
years. The ISA was enacted in 1960 on the premise that it was needed to address
the threat posed by the Communist movement. The original Act incorporated
various mechanisms to prevent its abuse, including provision for judicial
review. A promise was also made that it would be used solely to counter the
armed Communist insurgency. Eventually the Communists laid down their arms, but
the ISA remained on the books, and is still in force today. It was even
“enhanced” in 1989 when the provision of judicial review was removed, rendering
it even more unjust and controversial.

The scope of the ISA has also been broadened; the list of its “victims” has
grown ever longer. Over the years it has been used to detain people said to be
members of Jemaah Islamiah (JI), KMM (Malaysian Militant Group), the Al-Maunah
and Al-Arqam groups, Shiah adherents, political activists, reform activists,
students and human rights activists. It has even been used to detain people
alleged to have forged identity cards, cloned telephones, made counterfeit coins
and harbored illegal immigrants – cases which have been considered very
controversial.

The ISA has become a ready tool to be used in place of professional, thorough
and painstaking investigation by the police. In addition, the reasons and
process of arrest under the ISA, as well as the methods of interrogation used,
have often clearly contravened humanitarian and religious principles. In short,
the entire set-up is riddled with controversy. Every arrest made under the ISA
represents a failure on the part of the police to conduct investigations which
fulfill the criteria required by the Attorney General to proceed with
prosecution. This collaboration between the police and the Home Ministry to
curtail the proper process of justice is in itself a gross injustice, by any
standard.

The ISA has also long been used by the ruling coalition to suppress political
dissent. It has been used to punish critics, to try and silence dissenting
voices, cover up their corrupt and unethical practices, and deflect pressure
from the international community. All this is done in the name of “national
security”, but instead constitutes a deliberate hobbling of the country’s system
of justice. To their way of thinking, the interests of national security
override the principles of justice, and this in itself is controversial.

THE ISA SHOULD BE REPEALED WITH IMMEDIATE EFFECT
Facing widespread criticism both at home and abroad – the ISA has badly damaged
Malaysia’s reputation – the government has finally proposed to review the ISA.
However, it is clear that they have no intention of relinquishing this
formidable and invaluable crutch of power. They are going all out to sell the
idea of amendment, rather than repeal. Considering the history of the ISA, it
seems very likely that these amendments will be minor and merely cosmetic, and
will not achieve anything in terms of removing its elements of injustice and
abuse of human rights.

At the present time, 16 people are still being detained under the ISA. The
longest-standing detainee is Shamsuddin Sulaiman, alleged to be a member of JI,
who has been detained for more than 8 years. The newest detainee, arrested on 15
July 2010, is Fadzullah Bin Abdul Razak, alleged to be a terrorist. Since April
2009, a total of 12 people have been detained under the ISA. This is despite the
fact that in April 2009 the Prime Minister announced that a number of ISA
detainees would be released and the ISA itself reviewed.

The review of the ISA has been limited to only five aspects, and the proposed
amendments to the Act, promised for more than a year, have yet to be tabled in
Parliament. The five aspects are: detention without trial; the broad powers of
the minister; the length of detention allowed; the rights and treatment of
detainees; and the public perception that the ISA is used as a tool of political
oppression. GMI would like to expand on these five aspects.

a) Detention without trial
Detention under the ISA is not protected by effective judicial review. The
court only allows a challenge to be mounted based on technical grounds,
that is, habeas corpus; there is no avenue to challenge the grounds of arrest.
In many cases there has been no sound reason to invoke the ISA, since the
charges could have been dealt with under existing criminal laws.

b) Powers of the Minister
The power currently invested in the Minister to decide to detain a person for
a period of two years is clearly far too broad. It also implies that the
Minister has no respect for the judicial process or for the executive arm of the
government. It thus fails to adhere to the principle of separation of powers.

c) The Period of detention
The 60-day period of detention is used for interrogation of detainees by Special
Branch officers, who routinely employ physically and psychologically abusive
methods. A person should only be detained if there is evidence against him/her,
and if the police fail to come up with such evidence the person should be
released. As a matter of principle, no-one should be detained for 60 days
without recourse to judicial process.

d) Rights and treatment of detainees
Both GMI and SUARAM have gathered and published extensive documentary evidence
of abuse and torture of ISA detainees. During the 60-day detention period
detainees are denied access to lawyers, and there have been a number of cases
where detainees were not informed of their rights at the time of their arrest.
The authorities justify torture and abuse by saying that it is necessary for the
successful completion of the investigation. In addition, detainees and their
families are often subjected to pressure and psychological abuse.

e) Public perception of misuse of the ISA for political purposes
It is common knowledge that many of those arrested under the ISA have been
political activists and dissidents, or anyone who has criticized the government
and its policies.

GMI is of the firm opinion that amending these five aspects alone will not
prevent the ruling coalition from continuing to abuse the ISA in this manner to
perpetuate its hold on power. The only way to restore public confidence would be
to repeal the ISA, ensure that police carry out their investigations in a
professional manner, ensure that judicial oversight is not excluded, and for the
government to uphold norms and principles of justice and human rights.

The People’s Role in Repealing the ISA
Public pressure in demanding the repeal of the ISA is crucial. The importance of
the support and active engagement of the people, regardless of political
affiliation, religion or ethnic and social background, cannot be overstated. The
Abolish ISA Rally held on 1 August 2009 was witness to the effectiveness of such
broad public participation.

Accordingly, GMI will continue to invite the people to play an active role in
this campaign. To mark the 50th anniversary of the ISA, GMI is organizing a
series of events, among them are:

1. Arts Night: “Detention without Trial”, to be held on 24 July 2010, at the
MBPJ Multipurpose Hall in Jalan Nuri, Section 7, Kota Damansara, starting at 8
pm.

2. Distribution of leaflets simultaneously in Kuala Lumpur and state
capitals, on 1 August.

3. Candle-light vigils to be held simultaneously at locations around the
country, also on 1 August.

4. The People’s Demands
GMI will never compromise in the issue of detention without trial. All Acts
which allow or have resulted in oppression, torture and abuse of people should
have no place on the statute books, and should be abolished without delay.

All groups and organizations which are part of the GMI coalition are urged to
give their support to the demands listed below, in an effort to maximize support
from all partners.

We hereby demand that the government:
1. Abolish all existing unjust laws such as the ISA, EO (Emergency
Ordinance), DDA (Dangerous Drugs Act), and the RRA (Restricted Residence Act),
with immediate effect. All of these laws go against the spirit of the Federal
Constitution, as well as contravene Articles 9, 10 and 11 of the Universal
Declaration of Human Rights (1981). This appeal is in keeping with similar
recommendations made by the UN Working Group on Arbitrary Detention (WGAD) and
the Malaysian Commission for Human Rights (SUHAKAM), as well as by various other
human rights organizations such as Amnesty International (AI), Human Rights
Watch (HRW), the World Organization Against Torture (OMCT), and the Islamic
Human Rights Commission (IHRC).

2. Either releases, or charges in an open court, all those currently detained
without trial.

3. Close down immediately all detention centres for detainees held without
trial, such as Kamunting and Simpang Renggam.

4. Awards compensation to all those who have been detained without trial, for
being unjustly deprived of their liberty and denied their due rights.

5. Makes a public apology to all such detainees, past and present, and
compensates them for the injustice, abuse and suffering inflicted on them during
and as a result of their detention.

6. Utilize instead existing criminal laws such as the following:
a. Section 489B of the Penal Code: counterfeiting money;
b. Section 56 of the Immigration Act: falsifying passports;
c. Section 298A of the Penal Code: issuing statements or spreading rumours
to incite religious hatred;
d. Section 499 of the Penal Code: issuing statements to incite racial hatred;
e. Section 499 of the Penal Code: distributing false information; or
f. Chapter VIA of the Penal Code: terrorist offences.

7. Investigates all complaints and cases of abuse, torture, inhuman treatment
and abuse of power perpetrated on any detainees, past or present; prosecutes
those responsible and sets up a Royal Commission to conduct investigations.

8. Debates the SUHAKAM Annual Reports in Parliament and implements its
recommendations.

9. Recognizes respects and restores the proper powers of the judiciary, as an
independent body, to provide a check and balance on the power of the police and
executive, and repeals all laws which have removed such judicial oversight.

Released By,
Gerakan Mansuhkan ISA (GMI)