The ISA in Malaysia - Pt. I

UPDATES from the blogs/newsportals:-

Sapp pulls out of UMNO-led Barisan Nasional

Sapp pulls out of BN; Blogger Kickdefella detained

Najib handed the "cookie jar". Pak lah is playing defence.
(no offence intended).
Beh Li Yi | Sep 17, 08 2:16pm BREAKING NEWS! updated 3pm

The prime minister says his deputy Najib Abdul Razak will take over as finance minister with immediate effect.

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*(Speculative) ==>HORRORS!! - Mr "wayar putuih" (aka Nazri) for Law - again????
==> KJ to challenge Madey Jr. & Toyol in "Chief Young Turd" contest?

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**The Following is a Paper by Mr. Wong Hon Wai, entitled
The role of fundamental liberties in the evolution of Malaysia as a democratic society.
Since it may be too long to be read and understood, I have split it up into 3 parts.

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Seed of Democracy

After World War II, the British planted the seed of democracy in Malaya. In 1955, Malayans were empowered to elect their representatives to the Federal Legislative Council. Two years later, Malayans were granted the right for self-determination and thus the Federation of Malaya became an independent sovereign country. Malaysia as a political entity came into being on 16^th September 1963 by federating the Federation of Malaya with Sabah, Sarawak and Singapore. However, in 1965, Singapore separated from Malaysia.

Throughout the history of Malaysia, there is a continuity of parliamentary democracy with regular election being held except during the aftermath of 1969 racial riots, which democracy was pronounced dead and parliament was suspended from 15 May 1969 until 20 Feb 1971. [1]

It is beyond dispute that democratic system is the preferred system for Malaysians as it provides the only long-term basis for managing competing racial, religious and cultural interests in a way that minimizes the risk of violent internal conflict within a plural society.

In 1991, the Prime Minister YAB Dato’ Seri Dr Mahathir Mohamad in a working paper presented to the Malaysian Business council, unveiled the national aspiration plan called Vision 2020[2]. Vision 2020 is about the aim that Malaysia becomes a fully developed country by the year 2020. There are 9 challenges documented in the working paper. The third challenge is fostering and developing a mature democratic society. In order to achieve these common goals, Malaysia has to benchmark its democratic system with the others fully developed countries.

Democracy is more than the ritual casting of a ballot at multi-party elections. True democracy involves participation by the people at all levels so that they have a voice in the discussions and decisions by which they are governed. But democracy must not only govern the political process, it should pervade all sphere of society, including economic and social life.

As Malaysia develops and its citizens becomes better educated and more sophisticated, the demand for civil and political rights has become louder. For increasingly larger segments of Malaysian society, a full stomach is no longer enough. The barometer for a mature democratic society is measured by the fundamental liberty enjoys by its peoples.

Fundamental Liberties Guaranteed by the Written Constitution

There are nine rights regarded as fundamental in the Malaysian Constitution (Federal Constitution) namely liberty of the person (Article 5); freedom from slavery and forced labour (Article 6); protection against retrospective criminal laws and repeated trials (Article 7); equality (Article 8); prohibition of banishment and freedom of movement (Article 9); freedom of speech, assembly and association (Article 10); freedom of religion (Article 11); rights in respect of education (Article 12) and rights to property (Article 13).

According to Dr Shad S Faruqi[3], there are 4 categories of restriction on fundamental liberties in the Federal Constitution namely:

1. Restrictions may be imposed by ordinary legislation enacted under the authority of the constitutional provision conferring the right
2. Fundamental rights may be curtailed by legislation against subversion.
3. Legislation to combat an emergency may suspend all fundamental rights except freedom of religion
4. Constitutional amendments may be enacted to curtail or abolish a right guaranteed by the basic law

Within the above context, the following analysis is to identify the restrictions and look into proposal to overcome them.

1. Restrictions by ordinary legislation enacted under the authority of the constitutional provision conferring the right

An examination of the constitutional provisions would disclose that there are two types of rights namely absolute rights and qualified rights. Absolute rights are those without restriction or qualification. Qualified rights refer to the provisions concerned permit laws to curtail the exercise of such rights under certain conditions. Take for instance, freedom from slavery is an absolute rights guaranteed by the Federal Constitution. In the other hand, freedom of speech is a qualified right.

Although Article 10(1)(a) grants to all citizens the right to freedom of speech and expression, Parliament may under Article 10(2) by law restrict this right under 9 grounds namely security of the Federation, friendly relations with other countries, public order, morality, privileges of Parliament, privileges of Legislative Assembly, contempt of court, defamation and incitement to any offence.

As compare to the First Amendment in the Constitution of the United States of America (USA), Article 10(1)(a) of Federal Constitution is too restrictive. The First Amendment stipulated that among other things USA Congress should make no law prohibiting the free exercise or abridging the freedom of speech.[4] As what Harding concluded Article 10 is remarkable for what it takes away rather than for what it gives. [5]

The idea that restrictions are sometimes necessary on political rights is common place in others jurisdiction. However, Article 10 fails to place any real restrictions on the restrictions. They are widely drafted that in practice there are likely to be very few possible restrictions which could not be said to come within the kinds of restriction permitted by Article 10, especially as there is nothing in Article 10 to suggest that the courts have any right to review the necessity of legislation restricting one of these rights.

In Madhavan Nair v PP [1975] 2 MLJ 264: The Malaysian High Court had declared that the use of subjective words in article 10(2) like “necessary or expedient” rendered it not within the competency of the courts to question the necessity or expediency of the legislative provision.

In India, there is a judicial requirement that derogating pieces of legislation must be “reasonable restriction” (Article 19(2) of the Indian Constitution). Indian Constitution requires that the restrictions, even if within the limits prescribed, must be reasonable and the court would be under a duty to decide on its reasonableness.

According to Article 10 of European Convention on Human Rights, the Parliament of member states are allow to restrict political rights only so far as is compatible with the requirements of a democratic society.

With regard to Malaysia, when infringement of the right is alleged, the scope of the court’s inquiry is limited to the question whether the impugned law comes within the orbit of the permitted restriction. There would be no substantive challenge to these laws even if they were overly harsh or unreasonable.[6] Prima facie, this would seem to indicate that so long as parliament fulfilled all the procedural requirements in the passage of laws restricting free speech

The position in India and European Community is preferred, as it has allowed the judiciary to scrutinise the enabling provision of the constitution on the grounds of reasonableness and compatibility of a democratic society respectively.

2. Fundamental rights curtailed by legislation against subversion.

Powers against subversion under Article 149 Federal Constitution has curtailed the practical operation of fundamental rights. This provision also introduced the broad notions of national security into Malaysia. Legislations enacted under Article 149 may be inconsistent with liberty of the person (Article 5); freedom of movement (Article 9); freedom of speech, assembly and association (Article 10) and rights to property (Article 13) and yet remain constitutionally valid.

Article 149 of the 1957 Constitution (Merdeka Constitution) has a clause that such laws would automatically lapsed upon the expiration of one year from the date on which they came into operation. However the sunset provision was removed in the Constitution Amendment Act 1960 and the position now is such laws would continue to exist indefinitely, unless both Houses of Parliament passed resolutions annulling them.

One of the examples of such legislation is the Internal Security Act 1960. (ISA). ISA permits the Executive to detain suspects without the filing of formal charges. During the 1960s, ISA was intended to deal with the threat of communist. However, in the case of Theresa Lim Chin Chin v Inspector-General of Police [1988] 1 MLJ 293: The court ruled that ISA is valid and from the wording of the provision of the Act there is nothing to show that it is restricted to communist activities. It was held that Art 149 was not confined to the communist insurgency.

Since the terrorist attack on the World Trade Centre Twin Towers in New York City on September 11, 2001, United State of America (USA) has introduced the Patriot Act 2001. [7] This Act empowered the Attorney General to sign detention order to detain without trial. As both ISA and Patriot Act is the law on preventive detention, it will be interesting to make a comparison.

The following table summarised the difference between these two legislations.

Name	Malaysia Internal Security Act 1960	USA Patriot Act 2001
Purpose	To provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto.	To deter and punish terrorist acts in the United States and around the world, to enhance law enforcement investigatory tools, and for other purposes
Applicability	Applicable to all persons. (Both citizens and non-citizens)	Applicable to alien (Non-US citizens only).
Judicial Review	Judicial review is restricted. Section 8B and 8C severely limit the court’s ability to inquire into the legality of a detention except on questions of compliance with procedures.	Judicial review in terms of habeas corpus proceedings is provided by the Act.
Detention period	Section 73 allows the police to detain for 60 days any person who may act "in a manner prejudicial to the security of Malaysia." The Home Minister may authorize indefinite detention renewable every two years ad infinitum.	The Act allows 7 days detention after which he AG should initiate deportation proceedings, press charges or otherwise release the detainee. There is provision provided for the person to be detained for up to six months. The Court ruled that Attorney General is authorized to detain aliens as long as removal is reasonably foreseeable. [8]
Restricted conditions after released	Those released before the end of their detention period are subject to "imposed restricted conditions" for the remainder of their detention periods. These conditions limited their rights to freedom of speech, association, and travel outside the country	Either deportation or let free. No restricted conditions after released.
Report to Parliament	No equivalent provisions.	Every 6 months, the Attorney General shall submit a report to the Committee on the Judiciary of the House of Representatives and the Senate, with respect to the reporting period, the details of the detainees and the grounds for the detention.
Review	The Advisory Board shall review the detention every 2 years.	The Attorney General shall review the detention every 6 months
Sunset Provision	No equivalent provisions	The Act shall cease to have effect on Dec 31, 2005.

Table 1: Comparison analysis of Malaysia ISA and USA Patriot Act