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The Bar Council disagrees with the statement of Datuk Seri Dr Rais Yatim, Minister in the Prime Minister’s Department that the Internal Security Act ('ISA') needs tightening 'to curb judicial scrutiny of the reasons for detention'. The Minister’s comments in general, reported on 10 November 2002, follow a recent line of other Government statements on the ISA which reveal a total disregard for due judicial process and for the rule of law.

While the Bar Council agrees that the Government must adopt a firm stance towards persons who pose a threat to national security especially in the light of global, regional and national developments, the method by which initiatives are carried out must be equally firm in adherence to fundamental human rights norms. When detainees are released and promptly re -arrested under the ISA, the 'right to legal advice and access to Court' which detainees have, according to the Minister is proved illusory in practice. In addition, such Executive action circumvents the conclusion of due legal process.

Apart from the ISA, there are ample provisions under the Penal Code, Criminal Procedure Code and other related laws which empower the authorities to arrest, remand and investigate alleged offenders while affording necessary safeguards to protect the constitutional rights of accused persons. In comparison, the ISA severely lacks similar safeguards in that suspects can be detained for up to 60 days for the purpose of facilitating police investigations.

According to basic legal principles, decisions by the Executive must be supported by reasons that can be substantiated by evidence. In this regard, the decision of the Federal Court in the case of Mohd Ezam and the most recent High Court decision in Nasharuddin Nasir constitute positive steps towards ensuring that applications of the ISA by the Executive are forced to remain consonant with established principles of justice. These decisions pointedly recognise that abuses under the ISA can and do occur, and must be
prevented.

In the light of the above, the Bar Council takes this opportunity to call for the immediate repeal of the ISA and all other forms of preventive detention legislation. The failure on the part of the Government to repeal the ISA is of grave concern. Worse still, attributing a laissez faire attitude to the judiciary in this instance and curbing judicial scrutiny as a response will effectively reduce the scope of judicial review and tantamount to a reactionary onslaught on the credibility and independence of the judiciary.

The Bar Council deeply regrets that the Government has not only persisted in applying the ISA, but is now considering taking a monumental step backward in seeking to remove the discretion of the Court in a matter of such crucial importance to civil liberties. Such a move may encourage further inroads in limiting judicial review of other important Government decisions. What is certain is that such a decision if passed will have serious and damaging repercussions on the function of the Court as a respected institution of justice and as a third institution in the separation of powers structure.