Sell One Law, Get Two Free?

By Kee Thuan Chye
Penang Economic Monthly

IS the Internal Security Act (ISA) really going to leave us? In name as well as in spirit? Will its body be laid to rest forever and its soul consigned not to purgatory but to hell, where it will be burned to nothingness and never more be resurrected?

Or will the government of Prime Minister Najib Razak design the two laws proposed as its replacement such that the repressiveness inherent in the ISA will live on, and the ruling regime can use it to its political advantage?

These are the questions on the minds of Malaysians who have at one time or another spoken out against the ISA or campaigned for its abolition over the years. For no law has had such power in shaping aspects of its people’s personality and the socio-political culture they live in than this law that authorises detention without trial.

Even in recent times, you could hear Malaysians in private conversations lowering their voices and looking over their shoulders whenever they spoke about something that seemed slightly “sensitive” – for fear of being overheard and hauled away by some Special Branch officer who might be hiding behind a potted plant.

Has the situation changed since Najib made the announcement on September 15 that the ISA would be repealed?

For now perhaps, because it would look odd if the Government hauled anyone in under any circumstances. But what it will be after March 2012, when the repeal of the Act would have been tabled in Parliament together with the proposal of the two new laws replacing it, it’s hard to predict – unless we have some inkling of the substance of the latter two.

But why are we getting two laws to replace one? That’s been the nagging question and bone of contention. Are we being given a bazaar offer – sell one, get two free?

It looks like one of them could be used for preventive detention, which would probably cover so-called “threats to national security”, and the other for anti-terrorism. If so, these are no different from the terms of the ISA. In which case the fundamental liberties of Malaysians that have been unfairly curbed by the ISA will continue to be curbed.

Will the two new laws give the Home Minister the same absolute powers he enjoys with the ISA? If so, what is there to ensure that he will not brand a political opponent a “terrorist” in order to shut him away? What mechanisms will be built into the two new laws to prevent the abuse of power?

To be sure, since the ISA’s enactment in 1960, close to 11,000 people have been arrested under it. Although its original stated purpose was to deter communism, its brief of acting against anyone believed to be a threat to national security is decidedly broad. Not surprisingly, therefore, detainees have included NGO personnel, student leaders, teachers and even theatre artists. Also a Malay who converted to Christianity, arrested for “disrupting Malay culture by being a Christian”. How does one person’s religious conversion amount to a security threat?

More drastically, in 2002, the then deputy home minister Zainal Abidin Zin even threatened that the law could be used against those who gave a “racial” twist to the new policy of teaching Science and Mathematics in English in schools. This was then prime minister Mahathir Mohamad’s pet policy, so woe betide anyone who tried to oppose it.

That happened at the height of the culture of fear, generated and intensified during Mahathir’s premiership. In fact, the most notorious use of the ISA was under his watch, when Operation Lalang made its big swoop on more than a hundred Malaysians in 1987. Many of them were Opposition politicians and social activists who had spoken out against the Government. Operation Lalang remains a black mark for Malaysian democracy because it displayed how mighty the State could be for having a weapon like the ISA.

Apart from that, the decision on an arrest could sometimes be arbitrary, as we saw in the Tan Hoon Cheng case. The Sin Chew Daily journalist was arrested under the Act in September 2008 for no apparent reason.

Just prior to that, she had written a four-paragraph report of a speech made by Penang Umno leader Ahmad Ismail in which he called Chinese Malaysians “penumpang” (tenants). The remark inflamed the Chinese. It bordered on sedition. But who got arrested instead? Irate Malaysians clamoured to know why. What crime had Tan committed in merely reporting what Ahmad Ismail said?

The then home minister, Syed Hamid Albar, came out to face the music. But instead of providing a rational answer, he came up with the most absurd reason. He said Tan’s detention was meant for her own “protection” – because, he declared, her life was “under threat”.

The next day, loan defaulters were begging to be detained – in order to be protected from Ah Longs seeking blood! No wonder the Government had to release Tan after only a 20-hour detention, making her the shortest-serving detainee in the history of the ISA!

But, seriously, I have to say there has however been no such happy ending for all the other ISA cases, and I can’t recall another blackly comic instance. I recall instead the gloom and severity of watching the eminent journalist A. Samad Ismail ‘confess’ on public television in 1976, three months after his arrest, that he was a communist. After that, he was detained for another four years.

In 1981, he made a second ‘confession’ on television to attest that he had recanted. His deadpan expression and the way he merely mouthed the words without meaning what he said showed his innate resistance to the staged event. He would have known that acting as he did, astute viewers would see through the absurdist drama that was being played out. The words he seemingly read out looked like they were prepared by someone else.

It later became public knowledge that the man who orchestrated Samad’s arrest and subsequent ‘confessions’ was none other than the then home minister, Ghazali Shafie, and that Samad had been coerced into making those appearances. Ghazali’s use of the ISA to consolidate his power reinforced the belief that the law was increasingly being used against political opponents. Mahathir’s was publicly perceived as doing that as well as silencing the citizenry.

The original purpose of deterring communism has long been lost sight of. In any case, communism in Malaysia is virtually dead. On that score, the ISA has gone way past its use-by date. Besides, we have ample provisions in our penal laws that can be upgraded to take care of terrorism. Before Zaid Ibrahim resigned as de facto law minister in 2008, he and his colleagues were already studying ways to address that through amending the Criminal Procedure Code and the Penal Code.

In fact, the idea of having two new laws is suspect. It cannot bode well for Malaysian democracy that in this day and age of increasing demands for civil liberties, our government is considering implementing more controls. Even if it’s in the name of “safeguarding peace and public order”.

Detention without trial cannot be justified, and certainly not for an initial period of 60 days as is the case under the ISA. Even 14 days, the period allowed by detention laws in Australia and the United Kingdom, is too long. The ISA also allows for the detention to be extended to two years at the pleasure of the home minister, renewable after that for an indefinite number of terms. This is inhumane and cannot be allowed any more. How did we allow that to go on for 51 years?

The ISA must go. Detention without trial must go. Everyone must have a right to be proven guilty before he or she is put away. Between now and March 2012, it is not too late for the public to call on the Government to reconsider its proposal to introduce the two new laws. One law is bad enough. Two is doubly bad.

Malaysians have fought hard to get the ISA repealed. Many have risked arrest to demonstrate against it. On August 1, 2009, alone, about 15,000 took to the streets in Kuala Lumpur to call for the law’s repeal, and nearly 600 were arrested. We have come this far to break the culture of fear. We must not regress. We must not let down the people who have struggled for our freedom, and allow the Government to deceive us.

If the Government cannot give us our fundamental right and our fundamental freedom, then it has no right to be our government.