Ever so often, when the subject of the ISA and the various abuses of the ISA are brought up, leading to calls for the abolishment of the ISA, the Government, through various Ministers, spokespersons of some NGOs (which seem to grow like poisonous mushrooms after an afternoon shower nowadays), some UMNO leaders or whoever would remind us that even the USA and UK have preventive detention legislation.
This morning, my friend e mailed me a link to a poll on whether the ISA should be abolished at the Home Ministry web site. I quickly went to the said web site to cast my vote.
There are 5 questions posed to the visitors with 3 possible answers given to each of the question. As of this morning, 89% think the ISA is draconian. 93% say they know what the ISA is about. And 93% say that the ISA ought to be abolished.
The 5th question is reproduced below:
"Tahukah anda, Amerika Syarikat dan Britain turut mempunyai undang-undang pencegahan mereka yang dikenali sebagai Anti Terrorism Act dan Patriot Act. ISA (Malaysia) adalah salah satu undang-undang yang dirujuk oleh mereka."
Loosely translated, it says:
"Do you know, the USA and Britain also have preventive (detention) legislation known as the Anti-Terrorism Act and Patriot Act. ISA (Malaysia) is among the law which was referred by them."
Well, first of all, there is no such thing as an Anti Terrorism Act, whether in the USA or Britain. There is however the Terrorism Act in Britain, either the year 2000 or 2006 Acts. So which one is the Home Ministry referring to?
Secondly, the question is just another example of the "Syiok Sendiri Syndrome" (or in short, "The 3 Asses"). Since when has the USA's Senate House or House of Representative referred to the ISA while thinking about, drafting, debating or passing the Patriot Act? And I doubt whether the House of Commons or House of Lords in the UK referred to the ISA while debating the Terrorism Act.
So, this is either The 3 Asses at work or a limp attempt to justify the ISA by saying that even the USA and the UK had referred to the ISA while debating their preventive detention laws. Even if it's true, the obvious question is, "so bloody what?" A wrong is a wrong regardless of it being committed by America, Britain, India or Nepal. It is a matter of, and let me type this in bold again, Universal Human Rights.
Thirdly is this. And I would pre-empt this by saying that this is the part which makes me, for the lack of an English word, "jengkil", "jelak", "mual" and "nak temuntah"! (the last two items mean "nauseous" and "want to vomit"). This is the part which always rile me up. Not because it is shallow. But because it presumes that everybody is an idiot. It riles me up because I am not an idiot, just like everybody else. Even if I was an idiot, I am still riled up because it is an insult to every idiot!
The thing is this. That question is there in order to justify the ISA by referring to the so called fact that even the USA and the UK have preventive detention laws in the form of the Patriot Act and the Terrorism Acts respectively. That is vile. It is misleading and almost dishonest. And most of all, it is hypocritical!
The truth is the Patriot Act and the Terrorism Act do not come close to the draconian nature of the ISA.
The Terrorism Act, for starters, only apply to terrorist or acts of terrorism. Act of terrorism is defined as :
- (a) involves serious violence against a person,
- (b) involves serious damage to property,
- (c) endangers a person's life, other than that of the person committing the action,
- (d) creates a serious risk to the health or safety of the public or a section of the public, or
- (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
Contrast that to the ISA. It applies to whatever and whomsoever the Home Minister feels is a threat to national security. Even national security is not defined. History would show that someone who had not done anything could be deemed a threat to national security under the ISA. Remember Teresa Kok? History would also show that the definition is so lax so much so that a woman could be arrested under the ISA to protect her own safety. So, please. Try harder.
Then, under section 41 of the Terrorism Act (2000), police detention is only up to 48 hours. That can be extended to 7 days. Even then, the extension can only be applied for and given by a Judicial Authority, which means, the Court. During the hearing for extension, the arrested person can be legally represented. The 7 day period is now enlarged to a period of 28 days. Last year, Prime Minister Gordon Brown asked the period of detention be extended to 42 days. The House of Lords told him and his Government to go and fly the proverbial kite!
Compare that to the ISA? Please don't make me puke. The initial arrest can last up to 60 days. During that time the police is not required to allow legal representation. They can lock you up in a dungeon somewhere between the sea and the sky. Nobody will know where you are. Not even yourself will know. History will show that torture takes place. The interrogation is done round the clock. It is unregulated. You are reduced to just a heap of flesh and bones. That is all. Your human dignity is taken away. Your loved ones cry in despair. A wife without a husband. Children without a father. 60 days!
The Terrorism Act, in schedule 8 spells out procedures from the time one is arrested until the time one is produced before a Judicial Authority for an extension of detention. Lawyers will be around. Officers must identify themselves. There are even provisions for audio and visual recordings.
Before extension is given, the Government will have to show that it is necessary to extend the detention for various reasons which are clearly spelt out in the Act.
Under the ISA however, the Government or the police has to do nothing at all. There is an automatic right to detain for 60 days.
Then the Home Minister can issue a 2 year (read, 24 months or 730 days and contrast that to 28 days under the Terrorism Act) detention order. You will then rot in Kamunting. That can be extended indefinitely subject to the order being made for not more than 2 years at any one time. Which means, you can be detained till Armageddon!
To top it up, the UK has the most highly respected High Courts. Courts which will fearlessly guard the rights of the citizen against the might of the Government. Application for judicial review or for writ of habeas corpus can be freely made to the High Court. The Court would then review the detention order and see whether the Government has exercised the power to detain properly and in good faith.
And what about the Malaysian Judiciary? They will shout at you even when you are just spelling out your name. And when you get to argue, they shout "not relevant" at you. They even sat without proper coram! To top it up, Dr Mahathir has rendered the Court to be mere proof reader. Habeas corpus is available but the Court can only look into whether the Government has filled in the right form, or has spelt the name correctly, or has used the right fonts.
Thank God that in the RPK case, Justice Datuk Syed Helmy had held that the Court had the power to see whether the Government had committed a jurisdictional error in issuing the detention order. Regardless, that decision is now pending appeal in our Federal Court.
So, please. Do not even begin to compare the Terrorism Act with the ISA. Save my blood from boiling.
Then the Patriot Act. Under this Act, detention is for 7 days. It is applicable only to aliens and not citizen. It is also applicable to terrorists. The AG then must charge the detained person or institute deportation proceedings. He could also sign a certificate to detain the person for 6 months. This 6 months can be extended indefinitely as long as the period does not exceed 6 months at any one time.
The AG then must submit a report to the the Committee on the Judiciary of the House of Representatives and the Committee on the Judiciary of the Senate every 6 months on the detention.
Habeas corpus is also available without limitation. Application may be made to the Supreme Court.
Here, under the ISA, there is no such provision. In any event, the Obama administration has closed down Guantanamo Bay. So, it is history. Furthermore, the Patriot Act also came with an expiry date. The ISA has however existed for almost 50 years.
Most of all, have we ever ever seen or heard that the opposition leaders, academicians, journalists, social activists or someone who has converted from Islam to Christianity been detained under either the Terrorism Act or Patriot Act?
I better stop. Because I am getting sick. And the mutton curry I ate just now is threatening to make its way up my esophagus, pass my throat, into my mouth out into the open air.