ISA and Human Rights

One of the basis why human rights are habitually violated is the granting of arbitrary powers to the security forces by the “repressive law” such as the Internal Security Act and as mandated by the Government of the day.

This statute permits the Home Minister to order detention of any individual for any period not exceeding 24 months in such a place as the Minister may direct. Additionally, the Minister may also order the type of discipline and treatment of the detainee as “required”. Not only can the Minister take away the freedom of the individual, he can also direct the detainee to post a bond with or without sureties and in such sum as may be specified for his due compliance with the restrictions and conditions imposed upon the incarcerated individual. To top it off, there can be no judicial review in any court of his decisions, save in regard to any questions on compliance with any procedural requirement in pertinent with the serving of this statute thereof.

No judicial reviews means no application for any of the prerogative orders of mandamus, prohibition and certiorari; no application for a declaration or an injunction; no writ of habeas corpus; and no civil or criminal suits and no action or any legal proceedings against any act done or decision made by the Minister.

The detainee can be held incommunicado indefinitely. The detainee can be held in an isolation chamber indefinitely. The detainee can be disciplined without due process of law in any manner and at any time “as required” indefinitely. Why indefinitely when the statute clearly states that the detention period cannot exceed 24 months? The Internal Security Act also provides for the Minister to extend the detention period (also for any period not exceeding 24 months) after the initial 24 months have expired. Moreover, the Minister may add to any restrictions or conditions already imposed at any time he deems necessary. New monetary bonds can be attained unconditionally. New discipline methods can be enforced. The detainee can be sent away to any place within Malaysia as the Minister so elects to.

All these acts can be perpetuated until the Government sees fit to cancel the detention order at any time they choose to, or not. No compensation can be applied for in the event that the detainee is wrongfully incarcerated. No recourse can be requested even if the Minister is later proven to be incorrect in his initial decision to imprison the detainee and all persons involved in this act, either directly or indirectly, are granted immunity from legal redress.

Where are the human rights then? In this case, the freedom and liberties of an individual are temporarily “suspended”. It does not matter that the Federal Constitution was established to safeguard the rights and liberties of all Malaysian citizen. Part II of the Constitution, entitled “Fundamental Liberties” include the right to life and the right to liberty of the person (including habeas corpus); equality under the law and freedom from discrimination (Article 8); freedom of movement; freedom of speech, assembly and association (Article 10); and freedom of religion. All these are eclipsed and superseded by the infamous Internal Security Act 1960 provided by Article 149 of the Constitution. Instead of a maximum limit of one year, this Article was amended in 1960 (under Tunku Abdul Rahman’s regime) to expand the definition of subversion by providing indefinite application of any emergency ordinances and the amendment of Article 150 of the Federal Constitution to permit the Proclamations of Emergency to continue indefinitely.

The Emergency (Essential Powers) Act 1979, Section 6 states that “For so long as the Proclamation of Emergency referred to in the preamble to this Act remains in force, the regulations made under the Emergency (Essential Powers) Act 1964 [Act 30 of 1964] (except those regulations which the Yang di-Pertuan Agong may by notification in the Gazette declare not to be in force) shall be in force and shall have effect as if they have been made under this Act; and the regulations may be amended, modified or repealed as if they have been made under this Act.”

Since the Proclamation of Emergency issued by the Yang di-Pertuan Agong on the 15th of May 1969 under Article 150 of the Federal Constitution has never been officially withdrawn, and both the Dewan Negara and Dewan Rakyat have never retracted their consent, the Essential Powers effectively remain in force in Malaysia.

Since Malaysia is still legitimately under Emergency rule, human rights and civil liberties are henceforth suspended until the time the Proclamation of Emergency is officially cancelled.

Other restrictive laws that empower the Government to invoke preventive detention of individuals without due process of law (other than the Internal Security Act) include “The Restricted Residence Act 1933”, “The Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EPOPCO)”, and “The Dangerous Drugs (Special Preventive Measures) Act 1985”.

Ironically, Malaysia subscribes to the “Universal Declaration of Human Rights” by virtue of being a member of the United Nations. Malaysia also adheres to the principles laid down in various international human rights instruments, which include “International Covenant on Civil and Political Rights”; “International Covenant on Economic, Social and Cultural Rights”; “International Convention on the Elimination of All Forms of Racial Discrimination”; “Convention against Torture and other Cruel, Inhuman or Degrading Treatment or Punishment”; “Convention on the Rights of the Child” and “Convention on the Elimination of all Forms of Discrimination against Women”.

Written by Hakim Joe

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