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

 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:

  • “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.”

  • “Secondly, there is enough legislation at the disposal of the executive to take care of every conceivable eventuality, including another state of emergency.”

  • “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.”

  • “Fourthly, the continued implementation of the ISA has become the excuse for the authorities to administer the country on an emergency basis.”

  • “Fifthly, it is now unknown for the ISA to be politically used to silence opposition.”

  • “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:

  • 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.

  • 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.

  • Proclamation of Emergency dated 15th May 1969 because of the May 13 riots after the 1969 general election; and

  • 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.


* Lim Kit Siang, Parliamentary Opposition Leader, Member of Parliament for Ipoh Timor & DAP National Chairman