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On 9 September 2003, at the conference held by Suhakam in commemoration of its 4th anniversary, there was suggestion that another piece of legislation be introduced to replace the ISA provided there are adequate safeguards.
On the face of it, such suggestion sounds interesting. However, it may not work for practical purposes.
One must bear in mind that the essence of the ISA is detention without trial. If one is against detention without trial, one must advocate the repeal of the ISA, and there ought not to be any replacement legislation providing for detention without trial, by whatever named it is called.
Any legislation in favour of detention without trial is inconsistent with the rule of law since it throws all fundamental human rights to the winds.
Safeguards? Those with good intentions may feel that introduction of some safeguards may help. However, given the fact that the legislative power is firmly in the hands of the Executive, which enjoys absolute majority in Parliament, this is an impractical suggestion. The past history of the ISA is testimony to this.
28 days increased to 60 days
One may easily find good examples of 'beautiful safeguards' against the abuse of powers under the ISA. One of the safeguards was to prescribe the period of detention for police investigation under s73.
It was 28 days under the original provision concerned. However, the period was extended by the Executive through parliamentary amendment to 60 days in the 197<0's, on the pretext that more time was needed for conducting police investigation.
Since then, it has become a norm that almost all detainees were kept under detention for police investigation for the maximum period of 60 days. Few were released within a shorter period than the 60 days.
Even constitutional safeguard does not help
Another good example of 'safeguard' is the establishment of the 'Advisory Board' under the Federal Constitution. Tan Boon Liat's case (1977) is a case in point.
Tan was detained under a piece of preventive detention legislation for 2 years. Within the first 2 weeks of his detention, he made a representation to the Advisory Board for review of his case.
The Advisory Board took more than 3 months after his representation to recommend for his continued detention. (Under the Federal Constitution, the Advisory Board must submit its recommendation to the government within 3 months of the detainee's representation.)
On appeal, the Federal Court held that under the circumstances, such detention was unlawful. Tan ought to be released.
However, the Executive lost no time in introducing a constitutional amendment to the effect that such detention was deemed to be lawful. So much for constitutional safeguards against preventive detention without trial.
If a constitutional provision ensuring a safeguard against abuse of legislation on detention without trial does not serve the purpose of protecting the basic rights of the detainee, how could an ordinary piece of parliamentary legislation provide a better safeguard against abuse?
To uphold the rule of law, and to promote and protect human rights of the citizenry, no democracy should advocate detention without trial.
Published in Infoline September 2003
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