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The Perils of the ISA

I wrote this for my column in the latest issue of Harakah, out today.

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16-30 September 2002

Harakah

Column

The Perils of the ISA

By M.G.G. Pillai

WHEN THE FEDERAL COURT allowed the habeas corpus petition of the Reformasi Five that their detentions under the Internal Security Act was illegal, it revealed what is an open secret: that men and women are detained under the ISA not for the crimes they are alleged to have committed but so they could build a case against them. The affidavits the Reformasi Five filed were not rebutted, and the Federal Court took the only decision it could: that they were wrongly detained. One, Raja Petra Raja Kamaruddin, had been released, the other four -- Mohamed Ezam Mohamed Noor; Tien Chua; Hishamudin Rais; Saari Sungib -- detained for two years under the ISA. The Federal Court could not therefore order their release. They were advised to refile their petitions for their release.

The Federal Court decision is significant. It has in the past been reluctant to interfere in detentions under the ISA. That it now decides otherwise, and the Prime Minister, Dato' Seri welcoming it, is one more sign the Government's writ is no more absolute. The Federal Court decision is long overdue. The ISA is an extra-constitutional law to be used in extremis, when law and order is under threat and national security is at stake. It is not a substitute when law and order breaks down when lawful dissent is disallowed. Only in rare well-defined national security and emergency threats, should it be invoked. The Home Minister must decide if and when it ought to be invoked. But over the years the ISA was used so people could be picked up for "fishing expeditions" -- to find out what they know than for what they have done. As in this instance. But the Home Minister, instead of ordering them released, sent all but one to detention for two-years as a national security threat.

Over the years, the ISA has become a potent weapon in the government's hands to rein in its critics and political opponents. It was used on the just dismissed deputy prime minister, Dato' Seri Anwar Ibrahim, and misused when the then Inspector-General of Police assaulted him. But the government would not admit it, and it took a Royal Commission of Enquiry to find the IGP culpable. In other jurisidictions, the Home Minister would have been dismissed. But not in Malaysia. The Federal Court decision should have caused the Deputy Prime Minister and Home Minister, Dato' Seri Abdullah Ahmad Badawi, to resign. He would not, indeed has no such intention. How could the Prime Minister-in-waiting ever resign?

Be that as it may, the Federal Court decision, however tepid its impact, is an important step in the fight for human rights in this country. The judiciary, like every institution in the country, is flawed, raped, battered and otherwise made irrelevant in a political culture where the BN government cannot be challenged. The courts would not accept the legal argument that the ISA is used to threaten political opponents and others, and to keep people in line. Recently, those involved in importing foreign workers were threatened with the ISA if they misbehaved. It is a political shorthand for the BN government to invoke the ISA when it is caught in a mess of its own making. And it is caught in a right royal mess.

The Reformasi Five is accused of wanting to topple the government by violent and militant means. No evidence is adduced, and when the NB government then convicts one of the Five -- Mohamed Ezam Mohamed Noor -- to two years in jail under the Official Secrets Act, the political motive is clear. Those detained under the ISA can stand for elections. Those convicted in a court of law cannot. This conviction now prevents Mohamed Ezam from contesting in the forthcoming elections. But he could. His sentence is not firm until all appeals are exhausted. At one time, a conviction was enough for a legislator to lose his seat. But when BN legislators broke the law, it was amended so they could hold on to their elected seats until all appeals are exhausted. It must worry the government no end at this prospect.

That it is Parti Keadilan Nasional (Keadilan) leaders who are the target in this detentions the Federal Courts declared unlawful is no accident. While BN focusses its attention on PAS on the issue of an Islamic state in Malaysia, it is Keadilan that frightens UMNO, the main party in BN. The recent announcement that Parti Rakyat Malaysia intends to merge with Keadilan frightens UMNO more than it lets out. UMNO wants the political fight to be between it and PAS, with BN backing UMNO at any cost. But in this fight for an Islamic state, the non-Malays and those Malays who do not want a theocratic state in Malaysia are left rudderless. But with Keadilan providing an alternate voice for this view, it frightens UMNO no end. That it is also the party of Dato' Seri Anwar Ibrahim even more so.

Unlike past UMNO presidents, Dato' Seri Mahathir cannot even dictate his successor. As it stands, Dato' Seri Abdullah Ahmad is. But he must be endorsed by the UMNO general assembly. That not even Dato' Seri Mahathir can. So many things come unstuck that the government cannot expect its satraps to deliver what it must. Some have pangs of conscience that they have allowed matters to slide so far deep that they are ashamed of what they had done. And try to right more to assuage their conscience than for what they were sworn in for. Then the institutions of state have been so thoroughly demoralised that they can no longer function as they once did. The Federal Court's ISA decision is one such. The Election Commission sudden pangs of fair play is another.

Now that UMNO now accuses the EC of foul play -- for what they accuse PAS of doing could not have been possible if the EC did not allow it -- it is proof that Malaysian elections lurches to what is the norm in the Philippines: elections there is fair because each party has an equal right to cheat. It is also proof in Malaysia -- granted that the UMNO charges against PAS has some basis -- that the BN's electoral skullduggery can be sustained only so long as it is kept within BN. But it is not. Which is why there is this sudden show of support that the Federal Court has shown some independence in acting as it did. It does not let the Federal Court off the hook for its past, but it at least shows it must follow the public will once in a while, even at the cost of alienating the government. The judiciary is not about to revel in its new found independence. But it would act, in a judicious mix of fair play and intransigience, for it knows which side its bread is buttered. Its decision on the Reformasi Five is one of its better pronouncements. It does not mean a new epoch is upon us.

M.G.G. Pillai
pillai@mgg.pc.my