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All are equal in misery before the ISA, but some are more miserable than others

AT ABOUT 11 am ON Friday, 28 May 2004, the police arrested Mr B.S.A. Tahir, a Sri Lankan business man with permanent residence in Malaysia, under the Internal Security Act, issued him a two-year detention order and swiftly transported to the Kamunting detention centre in Perak. The Prime Minister, Dato' Seri Abdullah Ahmad Badawi, said from Beijing, where he is on an official visit, that he is a chain in the international nuclear blackmarket a Pakistani nuclear scientist, Dr Abdul Qadeer Khan, had put together. He said the ISA is invoked because it compromises Malaysia's security. The Police in a report to the International Atomic Energy Agency in February said Mr Tahir had admitted he was a middleman for this blackmarket, and has given valuable information about it. But Pak Lah says he could not be detained then because the police did not have the evidence. They now have it. He is detained. The matter is closed. No one should question this.

But it raises disturbing questions. The ISA is designed to be used in extremis, when the laws of the land cannot cope with the emergency at hand, and is for that extra-legal purpose only. But it is now used by governments with similar laws to remain in power by detaining political opponents and circumscribing political parties they consider dangerous. Worse, the laws are amended over the years to remove the considerable safeguards the laws originally had so those arrested under it could have access to the courts. In Malaysia, the ISA is often used to threaten the government's political opponents. It is now a catchall law that allows people to be detained without proper investigations. It has over the years become a law that presumes anyone caught in it to be a national security threat. Its reach is so broad that it can be used at will. Even a former deputy prime minister got caught in the ISA maze, during which he was beaten to an inch of his life by none other than the Inspector-General of Police.

Arrests are often made in the middle of the night, initially for 60 days, and once investigations are wrapped up, the detainee is released or detained for two years. It is during this two months he is subject to torture and psychological pressure, is often kept naked in dank, unhygenic, unhealthy cells in between interrogations, so he would break down and give the authorities what they want. At Kamunting, the detainee is relatively free of what he faced in the first 60 days, but to insist that it is a holiday camp, as many in government insist, is a traversity of the truth. He is warned to be on his best behaviour when visitors come acalling, especially cabinet ministers and their deputies, and bodies like Amnesty International and non-governmental organisations. If he suggests or hints that all is not right, there is hell to pay when the visitors leave.

But the Tahir case reveals that while all are equal before the ISA, some are more equal than than others. He is (or was) a business partner of Mr Kamaludin Abdullah, Pak Lah's only son. When Mr Tahir wanted to ship centrifuge parts to Libya for its nuclear programme, he approached Mr Kamaludin, a substantial shareholder of the stock exchange listed SCOMI, to have them manufactured. SCOMI set up a special factory for it in Shah Alam. But the case is treated with kid gloves. The police made every effort, when the scandal broke early this year, to distance the Prime Minister's son from it, indeed emphatically cleared him. Pak Lah could not be in a scandal as the general election approached, and the police helped beyond its duty. Mr Tahir himself conceded, according to a Malaysian police report, that he sent the centrifuge parts manufactured by the SCOMI subsidiary to Libya. It does not matter if Mr Kamaludin is an innocent party. The ISA makes him culpabable. Indeed, if SCOMI was not controlled by the Prime Minister's son, I dare say that whoever owned it, and Mr Tahir, would not have been so gingerly treated.

The Malaysian government has detained many whose links with the threat are at best tenuous. Innocent links can be fatal. If heroin is found in a room shared by five they cannot plead ignorance. The law presumes they knew about it and, as often, hanged. The same presumptions exist in the ISA. If the ISA is to be on the books and is used in the way it is, the question of innocently manufacturing and supplying parts for a banned nuclear programme does not arise. In this case, it does appear the police acted on information from foreign intelligence agencies - CIA and MI6 - which is assumed to be correct. It is barely three months ago the Inspector-General of Police, Dato' Seri Mohamed Bakri Omar, cleared the Shah Alam factory of the SCOMI subsidiary and its major shareholder, Mr Kamaludin, of all wrong doing. One must infer, given how the police works, that since Mr Tahir was not arrested then, he was also in the clear.

Then suddenly he is arrested and taken straight to Kamunting. Why this unseemly rush? Why was he not detained first under the usual 60 days, and the detention order made at the end of it? Was there any untoward compulsion to force the Malaysian government to act so highhandedly? Why did Pak Lah have to explain why Mr Tahir was arrested? Especially since as internal security minister and as Kamaludin's father, there is a clear conflict of interest. And since the government is now sure it has all the evidence of Mr Tahir's perfidy, why is he not charged in court? Is it because it cannot afford the scandal of an acquittal or that Pak Lah's name, and that of his son, would figure prominently in the trial? Is it so Pak Lah would not face unnecessary questions about this when he prepares to stand for the UMNO presidency in September? Or is the police acting on pressure from unknown but powerful sources?

The test of Malaysia's independent judiciary now rests on how it deals with the political framing of the former deputy prime minister, Dato' Seri Anwar Ibrahim. It does not yet pass muster. Similarly, the test of Malaysia's ISA will rest on how the police deals with those accused of breaching national security but with close links to those in power. When the powers that be want some one damned, the ISA is invoked to make that easy. The Anwar Ibrahim case is only the most prominent of that. But its test will come when it acts against someone in the eye of power, like the son of the Prime Minister. The Tahir case reveals it is not. It is time, as the Opposition Leader, Mr Lim Kit Siang, suggests, to rethink the ISA, and amend it for the purpose it should be on the law books, and not to rein in the government's opponents. But that, as many good suggestions from him, is for the government, water off the duck's back.

[This is my Chiaroscuro column in malaysiakini (www.malaysiakini.com) today, 01 June 2004. What appeared is a lightly edited version under a different title: All are not equal before the ISA]]

M.G.G. Pillai
pillai@streamyx.com