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Repeal the ISA as it is the mother of all
undemocratic laws and practices against legitimate dissent unrelated to
national security, reducing Malaysia to a semi-democracy as compared to the
Merdeka aspirations, spawning a culture of subservience and mediocrity,
undermining the Rukunegara objectives of a democratic, just, liberal and
progressive society as well as the doctrine of the separation of powers
among the executive, legislature and judiciary
Speech
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in
the public debate with Minister in the Prime Minister’s Department, Nazri
Aziz on “ISA – Yes or No”
by Lim Kit Siang
(Kuala Lumpur,
Monday): The genesis of this debate “ISA – Yes or No” was
the snide reference by the Minister in the Prime Minister’s Department,
Datuk Nazri Aziz, to my description of the Internal Security Act (ISA) as
“draconian” during his winding-up of the Malaysian Maritime Enforcement
Agency Bill in Parliament on 14th June, 2004, and as there was no time for a
debate on the issue, I suggested a debate outside Parliament, and here we
are tonight.
It is, however, a reflection that the Malaysian Parliament has still to
start seriously on its journey to become a First World Parliament that a
debate on the pros and cons of the ISA could not be held in Parliament,
especially when it was the subject of a special report by Suhakam. The topic
“ISA – Yes or No” should not just be the subject of debate between Nazri and
myself, but by all Members of Parliament from all political parties in
Parliament, and in fact by all Malaysians.
Parliament, however, had been negligent in its oversight of the Suhakam’s
statutory responsibility to promote and protect human rights since its
establishment in 2000, as not a single Suhakam report, including its four
annual reports which Suhakam is required by the Human Rights Commission Act
to present to Parliament, had ever been debated. In fact, most MPs do not
even read them or take them home.
Last Wednesday, I attended a luncheon talk by Tan Sri Ghazali Shafie on
“Progressive Nation-Building: A Journey into Values, Past and Future”. He
referred to his stint as Home Minister from August 1973 to July 1981. He was
not apologetic at all for the over 4,000 detention-without trial ISA arrests
resulting in over 1,600 formal ISA detentions during his term of office,
believing that he was acting in the national interest. He even named me,
saying that I would know why he had detained me. But he was frank, when he
admitted that as the Minister, he would just sign the ISA detention orders
placed before him by the police without really going into their merit.
However, Ghaz was wrong, for he was not the Home Minister responsible for
signing my detention order during both my sojourns under the ISA, the first
time in 1969 and the second time in 1987, although in his eight years as
Home Minister he detained thousands under the ISA, including two DAP MPs,
Chian Heng Kai and Chan Kok Kit, two Deputy Ministers, Abdullah Ahmad and
Abdullah Majid, and others like Syed Husin Ali, Kassim Ahmad, Samad Ismail
and Anwar Ibrahim.
Ghaz’s reminiscences however gave a frightful insight into the cavalier
attitude towards human rights and fundamental liberties by Home Ministers.
In his book, “Freedom under
Executive Power in Malaysia”, Rais Yatim, who was Deputy Home Minister from
1976-78, had described how Home Ministers had automatically signed ISA
detention orders based purely on police recommendations without exercising
their Ministerial responsibility to satisfy themselves on the adequacy of
the evidence or the necessity of the detention.
Rais wrote:
“It is common practice that the
Minister of Home Affairs signs detention papers purely basing his findings
on the briefs supplied by the police. There have been instances in the past
when detention orders were signed by the Minister or his deputy just within
hours before the expiration of the respective detention period. In its
practical sense and in such a case, the Minister cannot be said to have used
his subjective faculties to satisfy himself that the detention ought to have
been made because he has not read the police reports in their entirety. It
could therefore be said that when a man is sent to a detention camp the
Minister is making a political decision about the rights and liberties of
the subject solely upon the recommendation of the police.” (p.295/296)
Let me state from the outset my
position on tonight’s topic - Repeal the ISA as it is the mother of all
undemocratic laws and practices against legitimate dissent unrelated to
national security, reducing Malaysia to a semi-democracy as compared to the
Merdeka aspirations, spawning a culture of subservience and mediocrity,
undermining the Rukunegara objectives of a democratic, just, liberal and
progressive society as well as the doctrine of the separation of powers
among the executive, legislature and judiciary.
Rais, in his book “Freedom under
Executive Power in Malaysia”, had given six reasons for the repeal of the
ISA, viz:
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“Firstly, there has been no real
subversion within or without the country since 1969 Emergency although
normal crimes have occupied the police in their rightful role to maintain
law and order.”
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“Secondly, there is enough
legislation at the disposal of the executive to take care of every
conceivable eventuality, including another state of emergency.”
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“Thirdly, it must be appreciated
that while it is true that the ISA was a piece of wartime legislation in
that communist terrorism had to be faced, that objective is now
non-existent.”
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“Fourthly, the continued
implementation of the ISA has become the excuse for the authorities to
administer the country on an emergency basis.”
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“Fifthly, it is now unknown for
the ISA to be politically used to silence opposition.”
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“Sixthly, Malaysia has to give due
respect and recognition to the demands of human rights as entrenched under
the various international convenants.”
(p 296-300)
This is what Rais said about the
ISA in his book:
“That there are clear violations
of human rights by invoking the ISA and other draconian legislation is an
understatement. The misery that these executive laws have brought upon
individuals have left a clear message: there is a state of confusion in the
real, accepted meaning of the phrase ‘prejudicial to the security of
Malaysia.’ The meaning of this phrase which is thematic in the ISA as well
as under Articles 149 and 150 of the Constitution is systematically left to
the discretion of the executive. It is a one-sided meaning to the exclusion
of all others and one with which the courts have willingly complied. The
courts in so doing have, by their own act of interpretation, divested
themselves of the jurisdiction to question the subjective findings of the
executive. And for so long as this situation prevails the rule of law is
necessarily marginalised in the preservation of fundamental human rights in
Malaysia.” (p. 293-4)
Enumerating the ISA abuses and
examples where persons were detained, “clearly linked to their political
beliefs, and not to the prospective harm the relevant persons would have
brought upon the security of the country”, Rais said:
“The ISA has emerged as the most
powerful executive instrument in effecting arrest and detention without any
judicial control whatsoever. Perhaps this is why the ISA has been described
as ‘white terror’. The incidents of Operation Lalang and numerous others
support this view. There are no legislative committees to oversee the
implementation of the ISA. There are no statutory provisions that require
periodic reports connected with preventive detention to be tabled in
Parliament. All acts and things done under detention laws are only subject
to the Minister’s ultimate discretion. In a sense, powers exercised by the
police and the Minister under the ISA are completely unilateral and are
subject to no other authority.” (p 295)
The view of a former Deputy Home Minister from 1976-1978 when his book was
published in 1995 that “there has been no real subversion within or without
the country since 1969 Emergency” as to justify resort to the ISA merits
serious consideration, for it meant that the some 2,500 ISA detentions
during the period between 1970 and 1995 had been wrongful and unlawful ISA
detentions.
I can also bear personal testimony
to his fifth critique that the ISA had often been used to stifle legitimate
dissent, as on the both occasions that I was detained under the ISA, I never
posed a threat to national security although I might have been regarded as
prejudicial to the political well-being of the ruling coalition, its
component parties or some of their leaders.
Although my first ISA detention in
May 1969 immediately after first election as Member of Parliament for Bandar
Melaka was generally linked to the May 13 riots in Kuala Lumpur, I was not
in any manner related to the general election campaign fever in Kuala Lumpur
in 1969, whether the pre-election public rallies or post-election
processions, as I was contesting in Bandar Melaka.
Similarly, when I was detained the
second time under the ISA under Operation Lalang in October 1987, I had
described it as a situation where “firemen who had tried to extinguish
inflammatory issues by getting them resolved” got detained “while the real
arsonists who had started the ‘fires’ were allowed to go scot-free”.
Rais was also “spot on” when he
said that the continued implementation of the ISA has become the excuse for
the authorities to govern the country on an permanent emergency basis.
In June 1979, I moved a motion to
annul to four Proclamations of Emergency as the emergency conditions giving
rise to their proclamation had long ceased to exist, viz:
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Proclamation of Emergency dated
3rd September 1964 to deal with the threat to the security of Malaysia posed
by Sukarno’s Indonesian Confrontation during the early days of Malaysia.
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Proclamation of Emergency dated
14th September 1966, applicable only to Sarawak, to deal with the Sarawak
political crisis to oust the first Sarawak chief minister, Stephen Kalong
Ningkan.
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Proclamation of Emergency dated
15th May 1969 because of the May 13 riots after the 1969 general election;
and
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Proclamation of Emergency dated
8th November 1977, applicable only to Kelantan, to topple the PAS Kelantan
State Government.
Out of these four Proclamations of
Emergency, only two Proclamations were justified by the grave emergency
conditions of the time, namely to deal with the Indonesian Confrontation and
the May 13 riots. Be that as it may, all the four sets of conditions giving
rise to the four Proclamations of Emergency had long ceased to exist. My
1979 motion to annul the four Proclamations of Emergency was defeated, and
another 25 years have passed and Malaysia still have four Emergency
Proclamations on our statute books – going as far back as 40, 38, 35 and 27
years ago.
The ISA is undoubtedly one
important reason why Malaysia is permanently under multiple states of
emergency, for the ISA is not an ordinary piece of legislation to be used
under ordinary circumstances. It is an extraordinary and very specific piece
of legislation enacted under Article 149 of the Constitution in
extraordinary circumstances to allow it to abrogate the fundamental rights
enshrined in the Constitution, in this case the Malayan Communist Party (MCP)
armed struggle in 1960.
The MCP armed struggle had ended
with the Haadyai Agreement in December 1989, but the ISA is still in force
today. The permanent state of emergency with four emergency proclamations
from 1964 to 1977 still existing provides the backdrop to justify the
continuation of an extraordinary law like the ISA.
In tonight’s debate on “ISA – Yes
or NO”, we can focus on the human rights principles violated by the
draconian detention-without trial provisions of the ISA or the cruel,
inhuman and degrading conditions which ISA detainees suffer during their
incarceration, especially during the first 60-day interrogative custody
under section 73 of the ISA, before they are served with a Ministerial order
of detention under section 8 of the Act.
Both these themes are valid and legitimate and have been raised and pursued,
in and out of Parliament, and the subject of reports and studies, the latest
from Suhakam and Suaram.
The fundamental rights of
Malaysians to personal liberty, freedom from arbitrary arrest, a fair trial,
to be presumed innocent until proved guilty and the right not to be
subjected to torture or to cruel, inhuman or degrading treatment, have been
the greatest casualties of the ISA in the past 44 years. But there is
another great victim of the ISA – the Malaysian system of democracy.
Only twenty years ago, the
Philippines, Taiwan, South Korea and Indonesia were all dictatorships. Now
they are all democracies, and in many respects regarded as more meaningful
democracies as far as Taiwan and South Korea are concerned. Malaysia on the
other hand has slipped to the status of a half-democracy during this period.
The Prime Minister, Datuk Seri Abdullah Ahmad Badawi has lamented that
Malaysia has “First World Infrastructure, Third World Mentality”. In his
maiden official speech in Parliament on November 3, 2003, he pledged to
fully respect parliamentary democracy and the separation of powers among the
executive, legislature and the judiciary. During the general election, he
pledged a clean, incorruptible, accountable, transparent, efficient,
people-oriented government which is prepared to hear the truth from the
people.
Abdullah has been elected unopposed as UMNO President and completing his
ninth month of premiership, but the high hopes he had raised remained at the
stage of rhetorics instead of action.
I believe tonight’s topic “ISA – Yes or NO” is intimately related to the
delivery of all these hopes and promises, for we must remove the culture of
fear and mentality of servility created by 44 years of ISA against
legitimate dissent, whether political, economic, educational, social,
cultural or religious, which has led to the spawning a culture of
subservience and mediocrity, undermining the Rukunegara objectives of a
democratic, just, liberal and progressive society as well as the doctrine of
the separation of powers among the executive, legislature and judiciary.
Why did Malaysia become internationally infamous for the lack of a just rule
of law and a truly independent judiciary? Why has corruption in Malaysia
become such a rampant disease, falling from 23rd place in 1995 to 37th place
in the Transparency International Corruption Perception Index, with
whistleblowers of corruption and injustice going to jail instead of the
corrupt? Why is there no freedom of the press or freedom of information in
an era of information society and knowledge economy? In all the answers to
these questions, the ISA and the culture of fear it has engendered must bear
a great responsibility.
The ISA has also spawned arsenal
of undemocratic laws like the Official Secrets Act, the Sedition Act, the
Printing Presses and Publications Act, the Societies Act, the Police Act,
etc, undermining democratic institutions like a free press and important
institutions and organs like Parliament and the Judiciary.
This is why the repeal of the ISA is not only important in restoring to
Malaysians their fundamental human rights of liberty of the person, freedom
from arbitrary arrest and a fair trial but to liberate Malaysians from the
tyranny of the ISA, to release creative talents and energies to achieve a
democratic, just, liberal and progressive Malaysia. The ISA, which has
become equated with stifling of legitimate dissent, must be repealed.
The threat of terrorism should not
be allowed to give the ISA a new lease of life. International human rights
instruments, including the Universal Declaration of Human Rights, recognize
the need to balance human rights with national security and public order,
subject to proper safeguards, such as to protect a legitimate aim, absolute
necessity, proportionality, prevention of abuses, judicial and legislative
review of executive decisions.
I say, “ISA – No”, it is the
mother of all undemocratic laws and practices against legitimate dissent
unrelated to national security. After decades of abuses to stifle legitimate
dissent rather than to protect national security and public order, its
repeal would an unmistakable commitment that the Prime Minister is serious
about wanting Malaysia to become First World Infrastructure, First World
Mentality where there is a First World Parliament, truly independent
judiciary, just rule of law, a free press and a vibrant civil society where
Malaysians can look forward to great strides in democratization in all
fields of national life.
(26/7/2004)
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Lim Kit Siang,
Parliamentary Opposition Leader,
Member of Parliament for Ipoh Timor &
DAP National Chairman
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http://dapmalaysia.org