Pic courtesy of The Nut Graph
SORRY, DATUK, I HAVE MISUNDERSTOOD THE ISA!
By Art Harun | Monday, August 03, 2009
Finally, I am in agreement with an UMNO leader. On the issue of the Internal Security Act, no less. In a Malaysian Insider report titled "Mukhriz defends ISA, says it's misunderstood," Datuk Mukhriz Mahathir has apparently lamented that the public has failed to see the benefit of the ISA. He was quoted as saying:
“The people cannot really see the benefits from ISA but if we realise that we are able to send our children to school and shop safely then we can see that all of these are from a government policy to provide protection to the people.”
One of the people whom Datuk Mukhriz was unknowingly referring to was, I must say, myself. Over the weekend I was thinking about what Datuk Mukhriz has said. And today, Monday the 3rd of August 2009, I conclude that all this while I have been a stupid Malaysian. I have been wrong all this while. Yes. I have to confess. I have misunderstood the ISA. Datuk Mukhriz, I bow in all humility to your wisdom and I must say I am not worth it. I am sorry.
All this while, I thought that a citizen's liberty is guaranteed by our Federal Constitution. And as I understood it, the Federal Constitution says that a citizen's liberty cannot be taken away other than in accordance with the due process of the law. And of course the law says that a person cannot be sent to prison until he or she has been found guilty by the Court and sentenced to imprisonment. That was what I understood.
I understood this from a year learning the Malaysian Constitution. And from another year of learning Comparative Constitutional Law where I studied the Indian, English and American Constitutions. And another year learning Administrative law. Also from a year of learning the subject of politics.
As I understood it too, when the ISA was debated in the Parliament, Tunku Abdul Rahman, our first Prime Minister as well as our Father of Independence, said this:
“My cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent."
That was a promise, solemnly made to the Parliament. And the late Tunku was of course also the UMNO President at that time.
So, in my gullible and naive mind, I understood that the ISA would not be used to stifle opposition and silence lawful dissent. Furthermore, the then Home Minister, Tun Dr Ismail said:
"I am convinced that the Internal Security Act as practiced in Malaysia is not contrary to the fundamentals of democracy. Abuse of the Act can be prevented by vigilant public opinion via elections, a free Press and above all the Parliament."
I must admit therefore Datuk Mukhriz, that I was under the impression that the Malaysian public - and that includes me and other Malaysians - could criticise any abuse of the ISA by the Government. We could express our unhappiness in a free Press as well as the Parliament.
I was also under the impression that what Tun Dr Ismail had meant was that the public would have the freedom to express their displeasure over what they perceive as abuses of the ISA freely too. After all, what is the use of vigilance without the freedom to express the result of that vigilance?
Datuk Mukhriz, due to the above, I understood that the ISA would not be abused. I also understood that the ISA was to be used solely for the purpose of protecting the security of our nation. And if it was abused, I understood that I would have the right to protest against such abuse.
I also understood that the Court would have the power to check and balance out any abuse of the ISA by the government. This the Court could do by issuing a writ of habeas corpus in order to release a person who has been wrongfully detained under the ISA by the government. The Court could look into the exercise of the government's power under the ISA and decide whether such power has been correctly exercised or whether such power was exercised in good faith.
That was what I had understood all these while. And Datuk Mukhriz, sadly, I had been proven wrong. You are right. I have misunderstood the ISA all this while.
First of all, your father, Tun Mahathir Mohammad, had taken away the powers of the Court to look into the exercise of the power under the ISA and decide whether such power was exercised correctly or in good faith.
Your father changed the law and the Federal Constitution to render the Court lame and impotent. The Court could now only look into whether the government has filled in the right form before a detention is made. Or whether the Home Minister has used a comma and a full stop at the correct place in such a form. Your father has rendered the Court to be an instrument of checking only instead of an instrument of checks and balances. Your father had deemed it fit to render the Court as a proof reader. That is your father's idea of a democratic society.
So, I am sorry, I have misunderstood the ISA.
Then I found out that the ISA actually could also be used, and was in fact used, to detain immigration document forgers, counterfeiters, opposition leaders and the likes. As at the end of 2007, a staggering 10,711 persons have been arrested under the ISA and a total of 4,370 detention orders have been issued pursuant to the ISA. A total of 46 detainees continue to be detained at the Kamunting Detention Camp as at 5th December 2008.
I also learned that your father had orchestrated Operasi Lalang under which 106 persons were arrested and 40 were detained. I also learned that while anybody deemed as a threat to national security from the opposition parties must be arrested or detained under the ISA, such arrest or detention is not necessary if the threat to national security comes from a member of or leader from UMNO or the BN.
I have also learned that the ISA could be used to detain anybody for no reason whatsoever. Teresa Kok, for instance, was arrested under the ISA for apparently protesting to a mosque for reciting the azan too loudly. She was arrested although she said she did not do so. Even the mosque committee said she did not do it. But she was arrested under the ISA and was detained for about a week anyway. Then she was released without any further action.
Then Raja Petra Kamaruddin was also arrested and later, detained under the ISA for insulting Islam and for writing an article deemed seditious. He was so arrested and detained even though the police admitted that his article was not investigated upon to ascertain the truth of the contents or otherwise. That was a new lesson for me.
Luckily a brave Judge, in Justice Datuk Syed Helmy of the Shah Alam High Court, freed him.
Around the same time, I also learned that the ISA could also be used to arrest people in order to protect their personal safety. Remember a journalist by the name of Tan Hoon Cheng?
Your father also had detained a Malay man whose name was Hilmi Noor for some odd and strange reason. He was said to have converted to Christianity and by doing so he was accused of "disrupting the Malay culture by being a Christian.” Datuk, that was also a new lesson for me about the ISA.
On top of all that, I had always understood that the ISA's purpose was to arrest and detain people from carrying out whatever plans they have which threaten national security. It is preventive in nature and not punitive. But later, I learned that detainees could be tortured while under detention under the ISA.
A learned High Court Judge, Justice Datuk Hishamuddin Mohd Yunus (now a Court of Appeal Judge, finally, after years and years of service and being stepped over many many times by his juniors), in a case known as Abdul Malek Hussin v Borhan Hj Daud & Others 1 CLJ 264, found as follows:
"On this issue, upon a careful evaluation of the entire evidence before me, it is my finding of facts that the plaintiff has succeeded in proving to the court on a balance of probabilities that he had been assaulted in the manner he alleges and by the individuals that he has named or identified. The plaintiff alleges that he was first assaulted by the first Defendant after the arresting team moved him from his home. He was arrested in front of his home after which a search of his home was done and various documents and a personal computer removed. He describes the assault in his evidence. He says he was slapped three times by the first Defendant after he was unable to take the first Defendant to the location of his (the plaintiff's) car. The plaintiff also said that he was blindfolded, and his head was forcibly covered with a T-shirt and forced to bend forward down between his legs in the car as he was taken to the IPK, Kuala Lumpur. The first Defendant denies these allegations. He only admits that he instructed L/Cpl Johari to place "cermin mata gelap" on the plaintiff, and that the purpose being "adalah bertujuan untuk menutup penglihatan plaintiff bagi mengelirukan plaintiff". The plaintiff then describes the circumstances of the second assault. In summary, he describes how in an air-conditioned room on the first floor of the IPK he was stripped naked, blindfolded, verbally abused and then physically assaulted. He was hit several times on the face and head. Most of the blows and kicks were directed at his body and legs. His legs were hit with a hard object. He fell over several times as a result of the blows. At one instance when his blindfold slipped, he identified one of the assailants as the second Defendant in person - Tan Sri Rahim Noor. The plaintiff also said that after the episode of physical assault, some urine-smelling like liquid was poured into his mouth while his mouth was forced open. Throughout the ordeal he was forced to remain naked. His penis was hit and an object pushed against his anus. He was made to stand in front of an air-conditioner and drenched with water - this treatment was done for almost an hour. The ordeal finally ended at about 4am. According to the plaintiff when the blindfold was removed he saw the first Defendant and other Special Branch officers in plainclothes. The first Defendant warned him not to make a police report regarding what had happened. The plaintiff also asked for medical treatment from the detaining officer but access to a doctor was only provided three days later on 29 September 1998... In my judgment, based on the evidence before the court, on a balance of probabilities, the plaintiff's case is more credible and ought to be accepted."
It is clear as daylight dear Datuk, I have misunderstood the ISA. I am sorry.
Last weekend, between 20,000 to 30,000 people came out to show their unhappiness over the ISA. They had wanted to demand the ISA to be abolished by presenting a memorandum to our King. Yet, they were met with water cannons, tear gas, batons and riot police with full gear, ever ready to shout and scream, even to beat them up and arrest them. Even 16 and 13 year olds were arrested and detained.
I thought Tun Dr Ismail already said that the public may be vigilant about the ISA and may express their opinion peacefully.
Again, I have misunderstood the ISA. And I am sorry.
[First posted 5 August 2009]