|
Contributed by the Human
Rights Committee
 The Committee refers to The Star’s report on 23 May
2008 entitled “Zaid: ISA under review” and welcomes the Government’s
desire to review the ISA and the SCC/IPCMC Bill.
We strongly urge the Government to invite all relevant
stakeholders such as NGOs and the Bar Council to be part of the process so that
a broad range of views and input may be provided and considered. Only a
thoroughly inclusive process will ensure that the reviews are effective and
meaningful.
ISA review: rule of law and principles of human rights
must be protected and upheld
We respectfully highlight the views of Datuk Zaid Ibrahim,
Minister in the Prime Minister’s Department in charge of law, expressed in his
book “In Good Faith” (2007) in a chapter titled “Colonial Laws that
Continue to Shackle us” (being a reproduction of his article first published
as “An Urgent Need For Clear Safeguards” in the New Straits Times
on 13 July 2006) as follows:
… The Emergency Ordinance was passed by Parliament to quell
unrest like the 13 May, 1969 riot. The Restricted Residence Act and the ISA were
a temporary measure to fight the communist rebellion. Bearing in mind the
circumstances we were faced with then, derogation of fundamental rights was
perhaps justified then. However, it is difficult to accept their continued
application as they are today. Malaysia is no longer in a state of ‘national
emergency’ (though the declaration has not been lifted). There is no public
unrest, to a degree where national security or public safety can be affected.
These laws and regulations confer expansive powers that
violate our constitutional right to fair trial. They permit indefinite detention
without trial, impede our freedom of movement, and reverse the presumption of
guilt. We may be held incommunicado for 60 days and be denied access to
counsel. Furthermore, upon the expiry of 60 days, we may be re-arrested or
worse: our detention may be extended to two years and may be renewed,
indefinitely.
The government says that application of such laws is confined
to those who pose a threat to national security or public safety. However,
‘threat’ is so broadly defined that it may be quite easily interpreted to
include a participant or an organiser of a forum seeking to promote open
discussion on issues such as constitutional rights. Past incidents clearly show
that the grounds for arrest and detention under the ISA do not satisfy the
criteria of being ‘prejudicial to national security’. What is there to prevent
the ISA from being used as a political tool to silence dissenters, political or
otherwise, and to deal with ‘deviant’ and ‘subversive’ individuals? Can we
justify the existence of these laws when they undermine the rule of law? Do they
genuinely generate a ‘safer’ Malaysia? We already have adequate laws that can
deal with such offences.
There is today NO imminent threat of a national emergency or
to public safety! To assert otherwise would be to contradict our Visit Malaysia
2007 advertising campaign, which promotes our country as a peaceful, harmonious
holiday destination. Why would tourists flock over if Malaysia were still in an
Emergency, requiring the continued application of such harsh and draconian rules
to maintain peace?
The power to re-arrest and to extend detention, for
indefinite two-year periods, violates the principles of democracy and the rule
of law. It is unlikely that the police would require an ‘indefinite’ amount of
time to investigate and to eliminate any threat. Depriving a person who is
presumed guilty of his or her liberty is synonymous to ‘sentencing’ him to
an indeterminate term of imprisonment. …
… As members of a free society who cherish our freedom, we
must be opposed to arbitrary detention as a matter of principle. Depriving a
person of liberty for up to 60 days is harsh though may be necessary in certain,
exceptional circumstances. But there cannot be justification for ‘indefinite’
detention. If we want to be governed by the rule of law, then the power to
detain beyond 60 days must be subject to review by the courts. There must be
clear safeguards to ensure that these powers are not abused. If we have to
sacrifice the liberty of a citizen, it can only be justified in exceptional
circumstances and for a limited duration. Detention can only be justified, if it
is proportionate and strictly necessary for the protection of a legitimate aim.
The Emergency Ordinance 1969 provides for detention without
trial on a similar footing as the ISA. Given the strong sentiments of the
Minister reproduced above, the Committee trusts that the review of the ISA will
also include a concomitant appraisal of all emergency provisions currently in
force in the country. There are at present 4 Proclamations of Emergency which
have yet to be revoked. These Proclamations were made (1) in 1964 as a result of
the confrontation with Indonesia, (2) in 1966 following a constitutional
standoff in Sarawak, (3) in 1969 after the May 13 riots and (4) in 1977 due to
the political crisis in Kelantan. The fact that Malaysia is in a permanent state
of emergency is a continuing gross violation of international law.
Secondly, the ambit of the ISA review should include a serious move towards the
ratification of international human rights instruments such as the International
Covenant of Civil and Political Rights 1966 (‘ICCPR’), International Covenant of
Economic, Social and Cultural Rights 1966, Convention Against Torture and Other
Cruel, Inhuman or Degrading Treatment or Punishment 1984, International
Convention on the Elimination of All Forms of Racial Discrimination 1965 and
Convention relating to the Status of Refugees 1950. International human rights
law has appropriately balanced the protection of individual rights and freedoms
with the preservation of national security and public order by allowing
limitations to the former. For example, there may be circumstances in which the
right to liberty may be temporarily suspended. These circumstances must be
exceptional in character (i.e. only in a time of public emergency which
threatens the life of a nation), strictly required by the exigencies of the
situation, limited in time, subject to regular review and consistent with other
obligations under international law. However, States are prohibited (even in a
time of an emergency) from derogating from the right to life (Article 6 ICCPR),
from the freedom from torture, cruel, inhuman or degrading treatment or
punishment (Article 7 ICCPR) and from the prohibition of retroactive criminal
legislation (Article 15 ICCPR).
SUHAKAM, in its seminal report “Review of the Internal Security Act 1960” (2003)
(‘ISA Report’), states as follows:
It is clear that human rights principles have built-in flexibility that allows
for limitation of some individual rights and freedoms in the preservation of
national security and public order. However, there are caveats. When resorting
to powers or measures that lead to the limitation of rights, certain stringent
conditions, which are as follows, must apply:
First, the limitation of rights of an individual must be imposed solely for the
purpose of protecting a legitimate aim that is prescribed by international human
rights principles. Second, the limitation of rights must be absolutely necessary
for the protection of the legitimate aim. Third, the limitation of rights must
be proportional to the protection of the legitimate aim. It must be remembered,
however, that, there are some rights and freedoms that cannot be limited and
they include the freedom from torture or other cruel, inhuman or degrading
treatment or punishment. Fourth, there must be adequate safeguards so as to
avoid any abuse of powers.
These conditions must be adhered to at all times as they greatly assist in the
very difficult but not impossible task of striking a fair balance between two
very important but, at times, competing public interests - legitimate national
security concerns, on the one hand, and fundamental freedoms of an individual,
on the other.
In our view, it is quite clear that the ISA and emergency provisions do not
satisfy the “stringent conditions” required to justify the existence of such
laws. The Minister’s views lend further weight to this position.
Thirdly, whilst we are not informed about the details of the proposal to
“enhance and update provisions under the ISA”, we reiterate that it is time to
repeal all provisions in Malaysian law which provide for detention without
trial. Should there be a necessity for a compromise or adoption of a
“middle-ground” approach, the basic acceptable minimum is the wholesale
implementation of SUHAKAM’s recommendations in its ISA Report. Based on the
report, it is recommended that the following broad framework be considered:
I. Repeal the ISA and replace the Act with “a new comprehensive legislation that
takes a tough stand on threats to national security (including terrorism) but
which at the same time is in line with human rights principles”.
II. The new legislation should have the following features, among others:
• A schedule which prescribes a list of specific offences which relate to
threats to national security.
• Police powers to detain a person for the purposes of investigations for a
maximum period of 24 hours only if there are reasonable grounds to do so.
• After the period of 24 hours, the person must be produced before a High Court
judge.
• If more time is needed for investigations, the judge may order the further
detention of the person for maximum periods of 7 days each time provided the
person is not detained for more than 29 days in total from the date of arrest.
• Upon the expiration of 29 days in total from the date of arrest, the person
must either be released or charged.
• The legislation shall only be in force for a period of 1 year, and any further
renewal of 1 year each may only be effected by Parliament.
The Committee is, as we have always been, ready, willing and able to offer our
expertise and assistance to the Government to ensure that the protection of
human rights is properly promoted in the laws of our country.
Dated this 24th day of May 2008
Human Rights Committee
Bar Council
 |
Committees 
Subscribe to this comment's feed
Circular No 109/2012: Be a Part of the Bar Council Constitutional Law Committee
