After the Federal Court decision of Sept. 6 that the police
detention of the Reformasi four, Mohd Ezam, Tian Chua,
Saari Sungib and Hishamuddin Rais under the Internal Security Act (ISA)
was mala fide and unlawful, some entertained hopes that the Deputy Prime
Minister and Home Minister, Datuk Seri Abdullah Ahmad Badawi, would release the
four on his return from overseas as this would be the
right, proper and honourable thing to do.
This is because whether from law, fact or morality, the Minister’s detention of the four under the ISA under section 8 cannot stand when the earlier police detention under section 73 had been quashed as mala fide and unlawful – as there is only one preventive detention and the second detention order by the Minister was based on the first detention by the police and when the initial police detention had been declared mala fide and unlawful, the Minister’s subsequent detention order must fall and fail.
But such tenuous hopes that the Reformasi four might be released by Abdullah following the Federal Court judgment have been dashed by Mahathir’s hardline reaffirmation of ISA in his 2003 Budget speech, going to the extent of describing the draconian ISA as the “saviour” of the nation.
Why should the Finance Minister trespass on the jurisdiction of the Home
Minister when presenting the 2003 Budget by laying down the law that there would
be no compromise in the use of the ISA – even unlawful and illegal ISA
detentions – making the 2003 Budget speech the most political of all budget
speeches in the nation’s history?
If anyone should be defending the ISA in Parliament, it
should be Abdullah as Home Minister and not Mahathir as Finance Minister!
In fact, from Mahathir’s
hardline position on the ISA in his budget speech, it seems quite clear that if
the Federal Court had ordered the release of the Reformasi four to weeks ago by
quashing the Minister’s detention orders, the
four would all have been re-arrested as innocently admitted by the
Deputy Home Minister, Datuk Zainal Abidin Zin when receiving a protest
memorandum from the ISA detainees’ families at the Parliament lobby last week.
The immediate and loyal reiteration
of Mahathir’s “no nonsense” stand on
the ISA by the Minister in the Prime Minister’s Department, Datuk Dr.
Rais Yatim the very next day is reflective of a new hardline position on the
detention-without-trial legislation in the higher reaches of the government,
which is most regrettable as well as deplorable, in view of Rais’ condemnation
of the ISA in his book “Freedom Under Executive Power”, where he wrote:
“That there are clear violations of human rights by invoking the ISA and other draconian legislation is an understatement. The misery that these executive laws have brought upon individuals have left a clear message: there is a state of confusion in the real, accepted meaning of the phrase ‘prejudicial to the security of Malaysia.’ The meaning of this phrase which is thematic in the ISA as well as under Articles 149 and 150 of the Constitution is systematically left to the discretion of the executive. It is a one-sided meaning to the exclusion of all others and one with which the courts have willingly complied. The courts in so doing have, by their own act of interpretation, divested themselves of the jurisdiction to question the subjective findings of the executive. And for so long as this situation prevails the rule of law is necessarily marginalised in the preservation of fundamental human rights in Malaysia.” (p. 289)
Enumerating the ISA abuses and examples where persons were detained, “clearly linked to their political beliefs, and not to the prospective harm the relevant persons would have brought upon the security of the country”, Rais continued:
“The ISA has emerged as the most powerful executive instrument in effecting arrest and detention without any judicial control whatsoever. Perhaps this is why the ISA has been described as ‘white terror’. The incidents of Operation Lalang and numerous others support this view. There are no legislative committees to oversee the implementation of the ISA. There are no statutory provisions that require periodic reports connected with preventive detention to be tabled in Parliament. All acts and things done under detention laws are only subject to the Minister’s ultimate discretion. In a sense, powers exercised by the police and the Minister under the ISA are completely unilateral and are subject to no other authority. It is common practice that the Minister of Home Affairs signs detention papers purely basing his findings on the briefs supplied by the police. There have been instances in the past when detention orders were signed by the Minister or his deputy just within hours before the expiration of the respective detention period. In its practical sense and in such a case, the Minister cannot be said to have used his subjective faculties to satisfy himself that the detention ought to have been made because he has not read the police reports in their entirety. It could therefore be said that when a man is sent to a detention camp the Minister is making a political decision about the rights and liberties of the subject solely upon the recommendation of the police.” (p.290/291)
It is to the eternal shame of Rais that at a time when the judiciary he had castigated is taking tentative steps to exercise judicial review of executive decisions in ISA detentions, Rais should have crossed to the other side of the fence to be both the foremost apologist and defender of untrammeled Ministerial discretions in ISA detentions, including for political reasons completely unrelated to national security.
Political parties, human rights NGOs and the civil society concerned about fundamental liberties should take stock of the new hardline position on the ISA laid down by Mahathir in his 2003 budget speech, which seems to indicate that in his last year in office as the fourth Prime Minister of Malaysia, the likelihood of a crackdown on democratic freedoms and human rights is significantly more probable than an easing off of the whole paraphernalia of draconian, repressive and undemocratic laws against legitimate, patriotic and peaceful dissent.