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PURPOSE

The purpose of this memorandum is to urge the Government to repeal all laws relating to detention without trial, in particular the Internal Security Act 1960 (ISA).

This is in keeping with Malaysia's pledge to uphold positive universal values in all aspects of national development, and for the promotion of the rule of law, international human rights standards and established religious values and norms.

The Malaysian Bar at its general meeting on 10 October 1998 attended by some 2,480 lawyers adopted unanimously a resolution calling for the repeal of all laws for detention without trial, and for the Bar Council to take all necessary steps to work towards the realisation of this resolution.

SCOPE

Currently, there are three major laws in force in Malaysia which provide for Detention Without Trial :-

1. The Internal Security Act 1960 (ISA)

2. The Emergency (Public Order and Prevention of Crime Ordinance 1969 (EPOPCO)

3. The Dangerous Drugs (Special Prevention Measures) Act 1985 (DSPMA)

Under these laws the Minister of Home Affairs may detain a person for a period not exceeding two years on the suspicion or belief that the detention of that person is necessary in the interest of public order or security. It is significant to note that in law this is an executive detention order and not a detention pursuant to a judicial decision.

The detention order may be renewed from time to time.

Further, under section 73 of the Internal Security Act, the Police are also empowered to detain a person for up to 60 days pending inquiry into the belief that he has acted in a manner prejudicial to security.

In addition to these three laws, there are eleven other pieces of legislation that curtail and/or marginalise civil rights. These are :-

1. Restricted Residence Act 1933 (RRE)

2. Sedition Act 1948

3. Public Order (Preservation) Act 1958 (POPA)

4. Prevention of Crimes Act 1959 (PROCA)

5. Trade Unions Act 1959

6. Police Act 1967

7. Societies Act 1966

8. Universities and Universities Colleges Act 1971 (UUCA)

9. Official Secrets Act 1972 (OSA)

10. Essential (Security Cases) Regulation 1975 (ESCAR)

11. Printing Presses and Publications Act 1984 (PPPA)

HISTORY

Laws such as the Restricted Residence Act and the Internal Security Act are either relics of British colonialism or adapted from war-time legislation employed in the United Kingdom.

Section 8 of the ISA, for instance, is akin to Regulation 18B of the Defence of the Realm Act 1939 in the United Kingdom.

Further, the Parliamentary debates in the Dewan Rakyat in June 1960 reflect that the ISA was enacted in this country for the sole purpose of fighting the communist insurgency and it was intended as a temporary measure until that threat was removed.

It has, therefore, outlived its purpose as there has been no armed insurgency within or without the country since the Malayan Communist Party laid down its arms and gave up its struggle officially after the signing of the Bangkok Accord on 24 December 1989.

FURTHER RATIONALE FOR REPEAL

Besides the fact that detention without trial is the very anti- thesis of the rule of law, two compelling reasons why these statutes should be repealed are :-

(a) Sufficient Legislation to meet any Threat to Law and Order. There is already sufficient legislation to deal with every conceivable eventuality relating to public order and security. Apart from the offences listed under the Penal Code and the Police Act relating to public order, there is also the Sedition Act and the Printing Presses and Publications Act relating to statements and publications. In addition, there are also emergency laws under the Emergency Powers Act 1979 made under Article 150 of the Federal Constitution.

(b) Absence of Safeguards Against Abuse of Discretionary Power under Preventive Detention Laws. A notable feature of preventive detention laws is the discretionary power of detention conferred on the authorities. Our highest court, the Federal Court, had once cause to comment on discretionary powers generally that 'unfettered discretion is a contradiction in terms ... it is a stringent requirement that discretion must be exercised for a proper purpose ... (the Sri Lempah decision [1979] 1 MLJ 135 at 148). The wording of the ISA in particular lends itself to possible abuse in the hands of over-zealous authorities involved in the detention process. It has been noted that the ISA is sought to be applied to circumstances and occasions not contemplated when the statute was enacted. For example, in the recent past the ISA has been invoked or threatened to be invoked in respect of those alleged to have spread rumours, forged passports, cloned handphones, breached copyrights etc, etc.

All these alleged law-breakers should properly be charged under existing legislation as has been done in some of the cases above.

CONCLUSION

The power of detention without trial remains an exception to the norms of any fair, just, equitable and democratic society. As our Prime Minister Dato' Seri Dr. Mahathir Mohamad is quoted in a book as having once stated: "... no one in his right senses like the ISA. It is in fact a negation of the principles of democracy."

In a democratic society like Malaysia, it does not augur well for the future of the rule of law, if laws allowing for detention without trial remain our statute books.

The abolition of the ISA (and all legislation that provides for detention without trial) is therefore imperative for the advancement of the rule of law and for the full realisation of that objective in our society.

10th December 1998

Dato' Dr. Cyrus Das, President, Malaysian Bar

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