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TERRORISM: OUR RESPONSE AND WHERE TO DRAW THE LINE; CONSIDERING THE CONTINUED USE OF THE INTERNAL SECURITY ACT ©Malik Imtiaz Sarwar
Deputy President, Human Rights Society of Malaysia (HAKAM)
Protem Secretary, Malaysian Civil Liberties Society (MCLS) I Introduction The ‘war on terror’, it could be said, is not new to Malaysia. We have had to deal with the communist rebel threat, a state of affairs the ISA was crafted to deal with. Whilst many have criticised the continued use of the ISA despite its obvious shelf-life[1], the government has maintained that there is need for the continued use of the ISA. The Courts have confirmed the validity of its continued use. In Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals[2], the argument was taken that on a purposive construction of the ISA and Article 149, the ISA was limited to use against communist rebels and could not be invoked against other forms of national security threats. This argument was rejected by the Federal Court. Events since 9/11 have given the Malaysian government added impetus and further basis for asserting the need for the continued use of the law. The fact that Malaysia is seen as a staging ground for a significant part of the terrorist attacks in Southeast Asia, notably the Bali bombing, an the involvement of Malaysians in such activity, notably Azahari, has served to substantiate these assertions.
It is significant that issues arising out of preventive detentions, or detentions without trial, have taken centre-stage the world over since 9/11 as governments have introduced far reaching measures aimed at curbing the terrorist threat. Leaving aside for the moment the point that many of these measures are in no way addressing the root causes of terrorism, these measures have largely revolved around preventive detention measures aimed at allowing the detention and deportation of persons suspected of involvement in terrorist activity, such as it is defined.
These issues are however not unique to us as Malaysians. Lawyers have for decades been arguing against the validity of detentions without trial under the ISA, arbitrary detentions, access to counsel, cruel and degrading treatment, and conditions of detention to varying degrees of success. The authorities have been fairly consistent in their arbitrary use of the ISA as well as brutal in its implementation. The courts too have been fairly consistent in their judicial conservatism when it has come to dealing with matters of so called national security. Ouster clauses have been upheld as well as the Liversidge v Anderson based notion of the validity of subjective decision making on the part of the authorities[3]. To the courts, these authorities have been, and will continue to be the best judges of the situation.
In light of this consistency, one could say that it is questionable whether 9/11 has had a significant impact on Malaysia.
II 9/11 and the World 9/11 was a watershed for the world. Governmental conceptions about the rule of law in the wider sense and its place in national security shifted radically, some might say regressed drastically. The language of human rights, long having been accepted as having a real and invaluable place in policing, became profane virtually overnight. It seemed that in the great race to save ‘person’-kind from the terrorist threat, all stops had to be pulled, even if it meant that innocents would suffer, or the guilty would suffer far more than they had to as they paid for the sins of those who could not be found, arrested and punished.
It seemed also, and has continued to seem, that counter-terrorism was and is a justification for any action. For instance, jurists and academics revisited the question of torture, asking whether it could be permissible in certain instances, notwithstanding the prohibition against torture being ius cogen. In what has become symptomatic of the struggle to place counter-terrorism above all else, sensationalist reasoning was and is still be resorted to. And so, a hypothetical is suggested:
You are a police officer in charge of homeland security. You have been told that there is a bomb that will be detonated in 15 minutes. You are aware of the general location of the bomb but do not have any specifics, and will not have the time to get the specifics. The detonation could result in about 500 deaths. You have a suspect in detention. Can you torture him to get the necessary information? Would your answer be any different if amongst the 500 were your loved ones, perhaps a daughter or a son or a wife.
Hypothetical scenarios like these have always had a place in the training of police and security personnel. In what has been a struggle, the scenarios were always approached in a human rights friendly way, resolving in a conclusion premised on there being no place of expediency in the implementation of human rights norms. 9/11 changed that, giving critics the means to justify a rejection of so called ‘soft’ approaches in favour of harsher tactics.
The counter-terrorist perspective is presented as a friend, in the form of a morality of the lesser evil[4]. This approach asserts that the danger facing our democracies and our culture of human rights is so evil that we are morally obliged to fight back and that in defending ourselves this we may need to commit evil acts, harms that run counter to fundamental principles but these actions are necessary and less evil than what our opponents do and as such are acceptable. This is a persuasive viewpoint. This however does not make it a correct one. The notion of necessary evil subverts the essence of the human rights message, replacing the hard won primacy of individual dignity with the principle of national utility[5].
Counter-terrorism and human rights stem from the same roots, are part of the same liberal democractic tree[6]. Within the context of realpolitik, it is unsurprising that there are significant efforts to reconcile the two, to show that they are not necessarily in opposition at all and, in fact, complement one another. Efforts at synthesis must inevitably start from either one of the two standpoints: from a human rights perspective, one would seek to embrace counter-terrorism within this primary agenda. From a counter-terrorist perspective, human rights is not the primary aim[7].
III 9/11 and Malaysia If at all it could be said that there has been an impact, the principal effect appears to have been giving foundation to the government’s stance on the need for the continued use of the Internal Security Act, 1960 (Revised 1972) which stance has always been predicated on national security.
Up to 9/11 the Malaysian government had faced severe criticism over the use of the ISA. The criticism was aimed not only at the identity of the persons detained – opposition members, political activists, critics of the government – but also the measures put in place by the ISA. This latter class of criticism focused on the fact that the statute allows for indefinite detention without trial, the ousting of judicial review, denial of access to legal counsel and the cloak of secrecy, and the attendant lack of accountability, under which it was/is implemented. This is illustrated by the spate of detentions of purported Kumpulan Militan Malaysia (KMM) members in August 2001. 8 of the purported KMM members were in fact members of Parti Islam SeMalaysia (PAS) and included Nik Adli, the son of Nik Aziz. These detentions were initially criticised by the United States government as was the wielding of the ISA. Significantly, post 9/11 the US Government became openly supportive of the ISA, drawing parallels with its own preventive measures exemplified to an extent by the promulgation of the PATRIOT Act. The US Government fell silent on these and other detentions. Datuk Mohamed Nazri is described as saying that because of Guantanamo, the US no longer criticizes Malaysia over the use of the ISA[8].
In the Malaysian government’s initial report to the United Nations Counter Terrorism Committee, the ISA was presented as one of the main legislative provisions satisfying the requirements of Security Council Resolution 1373. This resolution requires criminal, financial and administrative measures aimed at individuals and entities considered supportive of or involved in terrorism. Notwithstanding the ouster provision in s8B of the ISA – which in effect completely strips the courts of jurisdiction to review the legality of decisions to detain by the Minister[9] - the Malaysian government asserted that:
“(The ISA is) subject to the rule of law and the principles of natural justice, with the Legislative, Executive and Judicial branches of government acting as checks and balances. Further safeguards for due process are also enshrined in the Federal Constitution and incorporated into the relevant laws.”[10]
Nothing could be further than the truth. The numerous unsuccessful challenges on detentions by the Minister[11] are testament to that. In Nasaharuddin, the Federal Court observed that:
“Under s. 8, the Minister has been conferred powers of preventive detention. The powers can be said to be draconian in nature. They are obviously designed to stop or prevent subversive actions or actions prejudicial to public order or national security (see Re Tan Sri Raja Khalid bin Raja Harun[1988] 1 MLJ 182). And s. 8B, being an ouster clause, has the effect of immunising (as I shall elaborate later) the powers of the Minister from judicial review. As such it plays an integral part within the whole scheme relating to the Minister's preventive powers and decisions made thereunder. In this sense, s. 8B is intrinsically linked to s. 8 thereby creating a combined effect in combating subversive actions or actions prejudicial to public order or national security. It falls squarely within the parameters of art. 149(1) aforesaid.”[12]
How then could it be said that detentions under the ISA were subject to scrutiny. Human Rights Watch reports that the pace of arrests increased after 9/11. In October 2001, 6 more persons were detained with the figure of ‘terror’ related detentions reaching more than 100. No charges have been brought against them and to date it is uncertain what the nature of the offending activity on the part of the detainees was[13].
Additionally, Human Rights Watch reports[14] of torture and other mistreatment including physical abuse, cruel, inhumane and degrading/humiliating treatment, coerced and false confessions and deplorable conditions of detention. 9/11 and all that followed has, it would seem, made these badges of honour for the detaining authorities as comparisons are made between Guantanamo, Abu Gharib and Kamunting. In June 2005, Bernama reported the Inspector General of Police as asserting that governments have valid and substantial grounds for the enacting of laws that restrict human rights such as the PATRIOT Act and the United Kingdom’s Prevention of Terrorism Act as governments must check the excesses of individuals and their civil liberties if the state is to survive. Coming as it does in the wake of accusations of torture and abuse, as well as the summary dismissal of the findings of the Royal Commission To Enhance the Operation and the Management of the Royal Malaysian Police[15], this is highly disconcerting.
III Of Guantanamo and Abu Gharib A second effect can be seen in the wielding of the iconic imagery surrounding 9/11. 9/11 has been as much about Guantanamo and Abu Gharib as it was the TwinTowers. The detentions in Guantanamo and Abu Gharib, and all that they represented are now iconic. The two names have entered the lexicon of would be torturers.
The detentions of the ‘Karachi 13’ is instructive. On September 2003, Pakistani officials detained in Karachi, 13 Malaysian and 6 Indonesian students on suspicion of involvement in terrorist activity. The Malaysians were between 16 and 25 years old. Soon after the arrests, a Pakistani official announced that the students were involved in “undesirable activities prejudicial to the interests of Pakistan” and that they would be deported after completion of investigations. The detainees were interrogated by Pakistani and US security officials and were threatened with deportation to Guantanamo, in addition to the more standard threats of abuse[16].
Special Branch officers have been quick to follow this lead, it would seem. Human Rights Watch reports how SB officers have threatened detainees with detentions in Guantanamo and have reinforced the commonly held view that Guantanamo is an unsafe place where they could amongst other things lose an arm or a leg or be paralysed[17].
In addition to the above, these events also reveal another aspect of the impact of 9/11, that is the closer cooperation between the governments of Malaysia and the US and the reality of international relations post 9/11. The matter of the ‘Karachi 13’ is a case study of how the Malaysian government has been willing to support US counter-terrorism efforts that violate international law and the rights of Malaysian citizens abroad. It also reveals how and why the US government has been reluctant to speak out on human rights violations that occur as a putative part of the “war on terror” and has in fact condoned the use of the treat of terrorism to justify systematic violations of human rights[18]. We must not lose sight of the fact that three of the thirteen detainees were children within the meaning of the Convention of the Rights of the Child to which Malaysia has acceded. The CRC prohibits arbitrary arrest and detention of children, and guarantees the right to fair trial with adequate legal representation[19].
The realpolitik context dictates that governments will do as they please until and unless there is significant and meaningful pressure to do otherwise. With condonation by the US for its own purposes, it would seem that the Malaysian authorities now feel that not only is the use of the ISA justifiable, so is the assertion that national security overrides all considerations, even basic human rights.
IV Drawing The Line One could say that Serio Vieira de Mello, the late United Nations High Commissioner for Human Rights, died making this point. In October 2002 he said:
“I am convinced that the best – the only – strategy to isolate and defeat terrorism is by respecting human rights, fostering social justice, enhancing democracy and upholding the primacy of the rule of law.”[20] De Mello, on secondment from his post as High Commissioner and serving as the special representative of the Sec Gen for Iraq, was killed in a suicide attack on the UN Headquarters in Baghdad on August 19, 2003.
A month earlier, Kofi Annan had stated:
“Upholding human rights is not at odds with battling terrorism: on the contrary, the moral vision of human rights – the deep respect for the dignity of each person – is among our most powerful weapons against it.”[21]
De Mello’s death was a shock to the system, a reason for some to suggest that the ‘soft’ human rights approach was not going to work. That harsher measures of reprisal were necessary, that it was time to take the gloves off. But in as much as it is tempting to use the language of retribution, we should pause to examine whether retributive justice will take us to where we say we want to get to: the eradication of terrorism.
Let us also be mindful that it is easy for human rights lawyers to pick holes in a government’s anti-terrorism strategy. It has been suggested that such lawyers do not carry the responsibility for ensuring that the right to life is adequately protected through the taking of precautions against terrorist attacks[22]. Nonetheless, the human rights perspective is the only coherent long term perspective available to us, and credence must be given to it. The counter-terrorism perspective is a highly politicised concept, both nationally and in international relations. Consider the highly charged debate over the legality of the war on Iraq, and to a lesser extent, on Afghanistan; the debates on other homeland security issues arising out of the TwinTower and London bombings; the fallout over the Bali bombings. The perspective is a reactionary one, driven more by concerns over the need to do something, anything, rather than put in a place a long term plan to deal with terrorism and its roots. In as much as the terror attacks and those responsible are abhorrent, the perspective is an unstable foundation for the future. Not only is counter-terrorism law immoral and subversive of the values which it purports to defend, but it is also certain to fail[23].
The necessity argument however continues to percolate through the abuses and reflects the radical shift in mindsets. The prohibition against torture has for as long as the modern human rights framework has been in existence been held to be sacrosanct. Yet, notwithstanding the repeated underscoring of the non-derogability of the prohibition against torture by the Human Rights Committee, the Committee Against Torture (CAT) and the Special Rapporteur on torture, States continue to justify torture and ill-treatment on the ground of necessity in the context [24].
No matter the justification, there is no place for expediency in the application of human rights principles. The foundations of the human rights movements both in international law and at the national level lies in the recognition of the dignity of the individual and the need for fairness, justice and the uniform application of law. Equally, as noted above, there is no place for the notion of good and evil in the law, and in human rights. As one commentator has observed:
“Is a sadistic act really less bad if prefaced by the remark “this is going to hurt me more than it is you?”….necessary (limited) evils quickly give way to greater ones; roughing up becomes torture, beatings become killings, deliberate humiliation becomes sadistic perversion. We know enough sociology to understand that the road to egregious human rights abuses invariably starts with a few limited and purportedly efficacious darts into qualified barbarity, that an Abu Gharib is bound to follow once you talk about the evil of your opponents and suspend international law in your dealings with them, from whatever motive and for however laudable a short-term goal[25].”
Or should we say that a police remand centre (PRC) or a Kamunting is bound to follow instead. Judging from the reports and complaints about abuses at the hand of the authorities where ISA detainees are concerned, it would seem that in Malaysia the law was suspended quite some time ago.
Where then to draw the line. As mundane as it may be, we have to turn back to the rules, to the foundations our forefathers laid down in order to ensure that our society is one which is governed in accordance with the rule of law. One in which each individual is accorded the highest respect and dignity and respect as an individual, and the necessary due process justice requires. We must recognise that generality is an important regulator of the rule of law. In the US Supreme Court case of Railway Express Agency v New York, Mr Justice Jackson expressed the value of this principle in these terms:
“…there is no more effective practical guaranty against arbitrary and unreasonable government than to require that the principles of law which officials would impose upon a minority must be imposed generally. Conversely, nothing opens the door to arbitrary action so effectively so as to allow those officials to pick and choose only a few to whom they will apply legislation and thus to escape the political retribution that might be visited upon them if larger numbers were affected. Courts can take no better measure to assure that laws will be just than to require that laws be equal in operation.”[26]
Our Constitution sets in stone this salutary principle. Its significance cannot be underlined enough.
How then to reconcile the need to act against terrorism? Firstly, we need to be certain that there is in fact a terrorist threat to our nation. Thus far, we have heard much rhetoric and indiscriminate use of the jargon of the international counter-terrorist movement, but have seen precious little evidence to suggest that terrorism exists in Malaysia, and that it is a threat to our nation, and our way of life. In his dissention opinion in the A v Secretary of State for the Home Department[27] Lord Hoffman said this of the so-called muslim extremist threat:
“Whether we would survive Hitler hung in the balance, but there is no doubt we shall survive Al-Qaeda. The Spanish people have not said, what happened in Madrid, hideous crime as it was, threatened the life of the nation. Their legendary pride would not allow it. Terrorist violence, serious as it is, does not threaten our institutions of government or our existence as a civil community.”
The balance must be struck in the strict application of the principles of legality and proportionality. It is not enough to gloss over those aspects of the law which are inconvenient. The ISA is not the PATRIOT ACT or the UK Anti-Terrorist Act no matter how politically useful such comparisons are. Those Acts have undergone, and are still undergoing, the jealous scrutiny of the courts and civil society and to the extent that they currently allow for, ensure some minimal standards of justice including rights of review and access to legal counsel. The ISA in its current form is, simply put, draconian. A law which is invoked for almost anything subjectively considered to be a threat to our government cannot by any stretch of the imagination be said to be a law which takes into accounts the nuances of the rule of law.
This is not to detract from the fact that the ISA is an unconstitutional law, a law which does not fall within the ambit of Article 149 of the Constitution[28]. The stated purpose of the ISA, at the point in time of its introduction, was to combat the communist terrorist threat, a threat which has since been extinguished. It was at all times intended to be a single purpose legislation. Yet we continue to ignore this historical fact, and the crucial significance it has in the application of Article 149. If we need a law to fight terrorism through, amongst other things, preventive detention, then it is incumbent upon us to craft a law which either fulfils the requirements of Article 149 or else ensures constitutional safeguards are put in place.[29]
We cannot cocoon ourselves from the raging debate worldwide about the reconciling of homeland security issues with human rights. That debate has as much significance for us as it does for those directly affected by terrorist actions. The principles involved are universal and go to the heart of our society as much as others. The arbitrary detentions, the cruel and humiliating treatment, the torture are happening here as much as they are elsewhere. Counter-terrorism is being invoked to justify these heinous acts here as much as they are elsewhere. Nothing can justify this.
***
[1] Consider the speech of Tun Razak in moving the motion introducing the Internal Security Bill [2] [2002] 4 CLJ 309 [3] See, for instance, Kerajaan Malaysia & Ors v Nasharuddin Nasir [2004] 1 CLJ 81 [4] M G Ignatieff, The Lesser Evil. Political Ethics in An Age of Terror (Edinburgh University Press, Edinburgh, 2004) quoted by C A Gearty, Terrorism and Human Rights, [2005] 1 EHRLR 1, at 3 [5] Gearty, ibid [6] Ibid [7] Ibid [8] Human Rights Watch, Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia, September 2005 Vol 17 No.9(C), at p 27 [9] Nasharuddin (supra) fn 5 [10] Letter dated January 4, 2002 from the Charge d’affairs of the Permanent Mission of Malaysia to the United Nations addressed to the Chairman of the Security Council Committee established pursuant to resolution 1373 (2001) concerning counter-terrorism. Quoted in Detained Without Trial: Abuse of Internal Security Act Detainees in Malaysia, supra fn 5, at p 26 [11] As opposed to detentions by the police under section 73. See Mohamad Ezam Mohd Noor (supra) fn 2 [12] Nasharuddin (supra) fn 5, at 91-92 [13] Human Rights Watch, In the Name of Security: Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act, May 2004 Vol 16 No.7(C) [14] Ibid, pp 19-32 [15] Note that the report of the Commission was given minimal coverage in the press and has despite repeated calls by members of parliament not been debated. Its recommendations have further not been implemented [16] In the Name of Security, at p 47 [17] Ibid, at p 24 [18] Ibid, at p4 and pp 45-51 [19] CRC, art 37(b), (c) and (d) [20] Statement of former UN High Commissioner for Human Rights Sergio Viera de Mello to the Counter-Terrorism Committee, Oct 21, 2002, available at www.un.org/Docs/sc/committeees/1373/HC.htm . [21] Statement by Annan to a conference on “Fighting Terrorism for Humanity: A Conference On The Roots Of Evil” (New York, September 22, 2003) [22] Brice Dickson, Law Versus Terrorism: Can Law Win? [2005]1 EHRLR 11, at 28 [23] Gearty, pp 5-6 [24] Edward Flynn, Counter-Terrorism and Human Rights: The View from the United Nations, [2005] 1 EHRLR 29, at 37-38 [25] Gearty, pp 3-4 [26] 336 US 106 (1949) at 112-113. Quoted by Clive Walker, Prisoners of “War All the Time”, [2005] 1 EHRLR 50, at 68 [27] [2004] UKHL 56, at [96] [28] The author respectfully disagrees with the Federal Court decision in Mohamad Ezam Mohd Noor (supra) fn 2. [29] See the SUHAKAM Report on the ISA *This paper was delivered at the 13th Malaysian Law Conference. 
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