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Thursday, October 01, 2009

The ISA - a primitive tool for a primitive society

Let me start by quoting Saint Augustine, who said :

“In the absence of justice, what is sovereignty but organised robbery?”

What distinguishes a modern democracy from totalitarianism, dictatorship or the olden days absolutist rule, whether monarchical or feudalist driven, or both, is the fact that the former observes the due process of the law in its administration of justice. In fact it observes the law in every single aspect of administration.

A modern democracy also ensures that power is not centred upon a tiny little head like that of a feudal King, or a dictator or someone who had the most number of sorcerers waving their little black wand to conjure magical solutions to every stately problem. While the system vests the power to rule with the Executive, it also empowers the Parliament to make laws in order to define the limits and boundaries of the power to rule.

However, the system recognises that the Executives as well as the Parliament, are consist of human beings who of course, are possessed with the normal mortal frailties, such as greed, stupidity, irrationality, unreasonableness and even malice. The system therefore builds an internal safety mechanism.

When the power is exercised wrongly, improperly, or irregularly, the aggrieved party could question such exercise of power in the Court. The judiciary - a fully independent judiciary, if I might add - is the safety mechanism.

The above is about as basic a statement about the doctrine of separation of powers in a democratic system which I could make. I can't make it any simpler. For any reasonable man - especially a so called leader - to not understand this concept is surely a cause for concern.

Now, lets go to the crux of the matter, namely, the Internal Security Act. What is so objectionable about it? What is it that I find repugnant about it? What?

Let me put it in a very simple form. In the form of a story, from our folklore.

In Sejarah Melayu and Hikayat Hang Tuah, don't we all know what the Sultan did when he was told that Hang Tuah was having fun with one of the Sultan's concubines? The Sultan quickly sentenced him to death and asked the Bendahara to execute him. That was it. No investigation. No trial. No defence. Hang Tuah wasn't even there.

The ISA is just like that. It is the Executive having assumed the mantle of complainant, investigators, prosecutors, jury, judge and executioners. And to cap it all up, because of an amendment in our Constitution and the ISA itself, the power of our Court to review the Executive's exercise of this enormous power is restricted to the point of non-existent.

That is, in a nutshell, what I find objectionable and repugnant about the ISA. It brings us all back to the 15th century. It demolishes fair play. It redefines justice. It rearranges the social contract - and I am talking about the real social contract, not the imagined ones - by which citizens agree to be a part of the State and surrender some of their rights in exchange for societal order and benefits.

Security of the State is of course the Executive's responsibility. But security cannot be achieved at the expense of freedom and liberty of the subject. Freedom and liberty cannot be deprived without due process of the law. And due process of the law means the subject must be charged and proven to be guilty of an offence worthy of deprivation of his or her freedom and liberty. To this I must add - as I have said before - freedom and liberty iarethe cause sof democracy rather than the other way round. How could democracy than be used as a tool to deprive freedom and democracy without due process?

Then, there is this tendency to abuse this monstrous power. Consider this.

Solehan Abdul Ghafar; Alias Ngah; Zainun Ismail @ Cikgu Nan; Ahmad Posi Daman; Mohamed Lothfi Ariffin; Nik Adli Nik Abdul Aziz (Tok Guru Nik Aziz's son) and Muhammd Zulkifli Mohamad Zakaria.

Who are they? What do they have in common? They are all suspected members of Kumpulan Militan Malaysia (KMM). And of course, coincidentally they are also PAS members. All were detained under the ISA. And not a single of them were ever charged in Court. No proof of whatsoever nature was proffered against them for what they have allegedly done.

That they belonged to an opposition party invites speculations and suspicions of political motives. Rightly or wrongly. And the failure to charge them or show any proof is a sign of absolutism mentality. We all know what happened during Operasi Lalang. Some people from the ruling parties were of course not arrested.

And how about these people?

  • Loo Pei Tu; Amir Hussain; Tan Choon Chin; Sundaraj Vijay; Khadijah Ahmad; Ho Chee Mun; Abd Rahim Jaafar; San Khaing and others. These are people alleged to have forged documents, presumably immigration documents.
  • Kamarul Fahmi Yassin and Nasib Abdullah were arrested under the ISA for allegedly spreading rumours by text messages (sms).
  • Lai Kin Choy; Lai Kee Yew; Tan Kok Seng; Yong Wai Chin; Ng See Hoo; Law Meng Keong; Tan Cheng Kiat; Lai Thin Foo; Choo Tuon Loi and others. These people were arrested under the ISA and some were detained for currency counterfeiting.

The fact that we have to resort to the ISA for the above offences is almost laughable, if not for the seriousness of the transgression against freedom and liberty perpetuated against the above named and many others.

I have stated before that Hilmi Noor was arrested under the ISA for allegedly converting to Christianity and by doing so he was accused of "disrupting the Malay culture by being a Christian!”

Lets face it. The ISA is a tool which encourages inefficiency and probably even laziness. With the advent of intelligence technological back up, we have just ourselves to blame if we are not even able to counter these offences without transgressing the people's freedom and liberty.

What about the famous process of rehabilitation at Kamunting, you may ask? That is, with respect, a fallacy. As and when the Minister feels that certain detainees present no more threat to the security of the country, the Minister releases them. They are rehabilitated. If so, may I ask why are there restrictions in their movements, what they say, to whom and the likes? Under what purview are they constrained as such if they are no more a threat to the nation's security? If their freedom needs to be curtailed under the ISA despite their release, aren't they therefore still a threat to the security of this nation? This is like the proverbial cat chasing after its own tail.

Then there is this argument that even the United Kingdom and the United States are doing it. Well, firstly, two wrongs do not make one right. Pure and simple.

Secondly, if we use the UK and the US to justify what we are doing, then why don't we do what they do in all its entirety? Why don't we scrap that illegal assembly law and permit public rally just as in the UK and the US? Why don't we stop moral policing just as in the UK and the US? Or what about caning some women for drinking a mug of beer? How about censorship? Why stop at preventive detention? While we are at it, why don't we legalise gay marriages as well?

Thirdly, how many opposition members have the UK and US government detained at Guantanamo Bay? How many journalists? How many academicians? How many activists?

Fourthly, do they really have a law which allows preventive detention indefinitely and without judicial review in the first place? Our ISA is not comparable to the Patriot Acts as well as the Terrorism Act. I have written about it here.

There is also an argument that our Court process is slow. If there is no ISA, the acts which would be done by these threats to national security would have been done before they could be convicted.

This defies logic. Will we shoot all rapists and murderers because our Court process is slow for fear that they might commit further rapes and murders before they are convicted? And since when have we become unable to speed up things in our Courts as and when we want it? And since when a system should be by-passed just because that system is imperfect? Does it not lie with us to make the system work? To make the system better and more efficient? Do we admit that we are failures and therefore we have to resort to short cuts?

How about racial sentiments? Yes, if left unchecked, these racists may just cause another 13th May. For sure. But are we saying the ISA is the answer to racism? Not education? Not a change or changes in discriminatory policies and education blue prints? Not a more realistic display of racial and religious understanding and acceptance? How about our leaders showing the way to racial and multi-faiths harmony first?

Nobody knows the exact number of those who have been incarcerated under the ISA so far. Dato' Rais Yatim while in the opposition (now the Minister of Information), is quoted by a SUARAM report to have said in his article, "Fredom Under Executive Power in Malaysia" that more than 20000 have been so arrested. SUARAM put it at 10504 arrests and 4218 detention from 1960 to 2001. Whatever it may be, the ISA gives the Executive the ability to behave like the Pharaoh and plays god. The monstrosity of the powers under the ISA far outweighs the justification used to validate its existence so much so that the people would not be at fault to fear the ISA and the government which uses it willy nilly than the mischief which the ISA was designed to avoid.

Preventive detention laws go against the crux of a democratic government and civil society. Our freedom and liberty establishe democracy. Would we want democracy then to swallow our freedom and liberty with scant regard to the laws which WE established?

I say a big NO.


Note: all data are from SUARAM Human Rights reports.

9 comments:

nxforget said...

Yes, a big NO from me too.

But what more for a person like me can do other than 1 vote given in every 5 years.

Thanks for enlightening piece.

Anonymous said...

so..anti-ISA 4 the detainees or ..or...wat NOW !?

Su said...

Well said Sir.

Not only ISA is outdated, the Emergency (Public Order and Prevention of Crime) Ordinance 1969 is more obvious.

I reproduce herewith the preamble of this Ordinance just in case many of our readers here do not have opportunity to have a copy of it.

"WHEREAS by reason of the existence of a grave emergency threatening the security of Malaysia, a Proclamation of Emergency has been issued by the Yang di-Pertuan Agong under Article 150 of the Constitution;

AND WHEREAS Parliament was dissolved on the twentieth day of March, 1969, and elections to the new Dewan Ra'ayat have not been completed;

AND WHEREAS the Yang di-Pertuan Agong is satisfied that immediate action is required for securing public order, the suppression of violence and the prevention of crimes involving violence;

IT IS HEREBY ENACTED by the DYMM....." (emphasis is mine)



We can see from the preamble how this Ordinance was needed AT THAT TIME but why on earth this ordinance is still in existence till now?

Is the emergency still in existence?

Is the Parliament dissolved on the twentieth day of March, 1969 still remained dissolved and elections to the new Dewan Ra'ayat still yet to be completed?

Hope you can write something about this ordinance to tell all Malaysian that apart from ISA, we still have other laws to oppose to.

Thank you!

Eric said...

@nxforget,

you asked the right question. If you are not into partisan politics, why not join an NGO and make your voice heard. Heard of SABM (www.sayaanakbangsamalaysia.net) or KOMAS (www.komas.org) who try to bring back the social fabric to this country while fighting the ISA?

There is a lot more we can all do than simply vote upon request.

julian said...

i fullyagerr with the author of this article, its just that the federal gov. is too stupid to find proof to charge these people in a court of law (even ifs a kangaroo court)
like the part about hang tuah though----touching.
keep it up mate educate the public.

Cruzeiro said...

You said it right art - ISA is simply a LAZY man's law to allow for LAZY solutions to complex problems.

PM said...

Looks like we need a Proclamation to lift the emergency.

Thanks Art and Su

Antares said...

Xie xie. Romba nandri. Terima kasih. Merci beaucoup. Vielen Dank. Arigato.
Gracias. Eucharisto. Thank you.

Anonymous said...

Thank you for the enlightening article and for being brave to speak up. People in power are corrupt and they use their powers to supress and corrupt society further.