Is the ISA Constitutional?

Justice must not only be done but must also be seen to be done. Not perfect English, but how many times have we heard this said before? And do we know what this statement really means? I suppose, a more appropriate question would be: would you receive justice under Malaysia's infamous and dreaded Internal Security Act (ISA)?

On 10 April 2001, three National Justice Party (keADILan) leaders and one political activist - Tian Chua, Hishamuddin Rais, Saari Sungib and Ezam Mohd Noor - were arrested (in that order) under the ISA. The following day, Raja Petra Kamarudin, the Director of the Free Anwar Campaign, was added to the list.

And what do all these people have in common? All are known Anwar Ibrahim supporters and Reformasi activists. Over the next two weeks, five more Anwarists were rounded up - N. Gobalakrishnan, Abdul Ghani Haroon, Lokman Noor Adam, Badaruddin Ismail and Dr Badrulamin Bahron.

On 25 April 2001, families of the first five arrested on 10 and 11 April filed Writs of Habeas Corpus in the Kuala Lumpur High Court seeking to get their arrest declared illegal. The High Court, however, ruled their arrest as valid and that the police had not acted in bad faith (Mala Fide) as claimed by the families in their Writs.

The families of the five, one of whom (Raja Petra) has since been released, then filed Petitions of Appeal on 17 May 2001. In their Petitions, which were later supported by Affidavits signed by all ten ISA detainees, it was revealed that the detainees' interrogation had no relevance to the reason of the arrest as announced by the Inspector General of Police (IGP) at a press conference a few days after the arrest.

In the said press conference, the IGP had announced that the ten had planned to bring in bombs, guns, grenade launchers, and much more, to create chaos during the planned 14 April 2001 or "Black 14" demonstration.

But they were never asked about any of this during their interrogation claimed the detainees. The detainees had, in fact, all signed statements - a record of their interrogation - and these signed statements could support what they were claiming.

Understandably, the police's Affidavit in Reply just gave a blanket denial without offering any evidence to support this denial. The police claimed that they were not able to table the detainees' signed statements because these were national secrets. The police did not deny, though, that the detainees were interrogated about all and sundry, totally unrelated to the reason of their arrest. The police defended this by saying that this is part of intelligence gathering. In short, the police never denied that the interrogation was aimed at extracting information about party matters as claimed by the detainees.

On Monday, 15 October 2001, the Kuala Lumpur Federal Court finally heard the appeal. On the bench were five Judges - the Chief Justice, Tan Sri Mohamed Dzaiddin Abdullah, and Justices Tan Sri Datuk Steve Shim Lip Kiong, Tan Sri Dato Wan Adnan Wan Ismail, Dato Hj Malek Hj Daud, and Dato Siti Norma Yaakob.

The defence was led by Counsel Haji Sulaiman Abdullah and supported by Sivarasa Rasiah, Christopher Leong, Malik Imtiaz Sarwar, and Moganambal Murugappan. Roy Rajasingham from the Malaysian Bar Council held a Watching Brief.

The court was told that the ISA detainees were arrested because of their alleged involvement in the Reformasi Movement. According to the police, those detained had planned to hold a demonstration on 14 April 2001 called "Black 14". April 14 was the second anniversary of Anwar Ibrahim's sentencing in the first (corruption) trial and the Judge who had sentenced Anwar was Augustine Paul.

The Federal Court was further told that, since the High Court Judge hearing the ISA detainees' Writ of Habeas Corpus application was the same Judge in the Anwar trial - Augustine Paul - he should not have heard the case and should instead have recused himself.

The counsel argued that all those arrested were aligned to Anwar Ibrahim and were associated with the Reformasi Movement - which is basically a movement in support of Anwar Ibrahim. Furthermore, the planned "Black 14" demonstration was a demonstration in protest of this verdict against Anwar. Therefore, "Black 14" could be viewed as a protest against the Judge and the Judge could be perceived as having a vested interest in the case so he should not have heard the case in the first place.

Furthermore, the detainees were being held incommunicado and were being denied legal representation though Article 5 (3) of the Federal Constitution clearly guarantees every Malaysian this right. The fact that the detainees were denied legal counsel is an infringement of their fundamental right.

The Court, however, felt that just because Augustine Paul could be perceived as biased due to this vested interest, this did not mean he was in fact biased. The defence, therefore, had no basis to ask that his verdict be overturned. The defence lost the first round.

The defence then went into the next point - the ISA itself and the history behind why it was introduced. The Deputy Prime Minister then, the late Tun Abdul Razak Hussein, tabled the ISA bill in Parliament soon after independence or Merdeka at the height of the Communist insurgency in Malaysia. When it was tabled, the Member of Parliament for Ipoh, Dr Senivasagam, stood up to ask the purpose of this new Act. And Tun Razak replied that it was specifically to combat the Communists at the Malaysia-Thai border.

When Tun Razak proposed the ISA, he knew exactly what he wanted. He wanted a weapon to fight the Communists. It was "to prevent the legitimate government from being toppled though illegitimate or violent means".

Article 149 of the Federal Constitution allows laws to be enacted to safeguard the security of the nation. Article 149 in itself violates the Federal Constitution and denies the fundamental rights of Malaysians as guaranteed under the Constitution. Therefore, to ensure that these rights would not be violated, Article 149 is very specific and restrictive in its application. And the ISA was one such law enacted through Article 149.

However, the ISA was never meant to be a law that gives the police wide and unlimited powers of arrest. For example, the police may invoke the ISA only if "a substantial body of persons has acted prejudicial to the security of the nation". But now, the ISA is being used in the absence of this "substantial body of persons" and as a prevention of crime rather than because of an act already done as stipulated under the provisions of the ISA.

The manner in which the ISA is presently being used is unconstitutional. When the ISA was first enacted it was very specific in its purpose - which was to combat the Communists. It was also very specific about when it could be invoked - which is when an act has already been committed. As it is now, no act needs to be committed yet for one to get arrested under the ISA and it need not be against a substantial body of persons.

The language of the Act needs to be seriously considered. It says that the body of persons must have acted in a manner prejudicial to the security of the nation - "acted" as in the past tense. Today, the ISA is used as a preventive law. One need not act yet. One only needs to be thinking of acting and that is enough grounds for arrest under the ISA.

Another issue is on the grounds for invoking the ISA. If the police "have reason to believe" that you "may" commit an act prejudicial to the security of the nation, then that is grounds enough. This is very subjective. Who determines this? What reason do you have for believing this? Is reason to believe grounds enough?
"Reason to believe" is not "reasonable grounds to believe". In "reason to believe", this is merely your opinion. Because you believe it, then it is true. This is where it becomes subjective. But if you are required to have "reasonable grounds to believe", then the element of proof comes in.

When you need to have reasonable grounds to believe, the reasonable grounds must be stated. This is no more subjective as we are no longer dealing with mere opinions but tangible evidence.

The ISA, which was born out of necessity, has already outlived its usefulness. The Communists that the ISA was enacted to combat have all gone and no longer exist. The ISA, however, remains and is used instead against government critics.

The ISA of today is not for detaining those doing mischief. It is used as a law for preventing mischief. And the interpretation of what constitutes mischief and what act you committed gives rise to this suspicion is all up to the powers-that be.