Friday, December 14, 2007

HINDRAF 5: ISA Detentions Side-Step Justice System

What need was there to detain the HINDRAF five under the Internal Security Act?

The ISA is a draconian law. It has no place in the modern and mature society that Malaysia is. It has been condemned internationally and locally. The manner in which the ISA allows for subjective detention without trial is violative of the fundamental liberties of persons detained in a manner that cannot be justified in any circumstance.

The Government’s position is that the five are threats to national security and public order and that they are a menace to the public for having lied about the Government in accusing it of ethnic cleansing, for having organized illegal assemblies and for having had links with terrorist groups (‘5 Hindraf leaders a threat to national security’, NST, 14.12.2007).

These accusations reveal the possibility of the five having engaged in criminal activity. Three of the five have already been charged with sedition (though I wish to stress that I do not view the offence of sedition as being constitutional). Chapter VIA of the Penal Code was recently added to allow for the prosecution of persons involved in terrorist activity. Appropriate arguments could be mounted to oppose bail to ensure that pending the trial of the five, they would be prevented from fleeing the jurisdiction and, arguably, from repeating the offensive activity.

We cannot lose sight of the fact that no matter how heinous the activity complained of may appear, accusations remain mere accusations until and unless they are made out in a court of law. Every person is presumed innocent until proven guilty in a court of law.

The detentions are therefore clearly preemptive, allowing for a side-stepping of a criminal justice system that is aimed at ensuring that no person is denied his constitutionally guaranteed right to liberty save where it is denied through an exercise of judicial scrutiny replete with inbuilt safeguards aimed at ensuring that an innocent person is not mistakenly imprisoned.

The Government would have us believe that rather than preemptive, the detentions are preventive. The crucial question is on whose account. The Government can hardly be considered to be objective bearing in mind the cause HINDRAF espouses. We have heard much of the Government having taken grave exception to the positions HINDRAF has taken. In the very public fanfare surrounding the official reaction to HINDRAF, we have been made to understand that the Prime Minister is angry at the suggestion of ethnic cleansing. He is outraged at the lies that he feels HINDRAF has allegedly told of his Government ('Governmnent doing its best for Indians', NST, 02.12.2007; 'PM: They want to destroy the country', Malaysiakini, 13.12.2007). He is also, by virtue of being the Internal Security Minister, the authority responsible for the issuance of detention orders.

Anger is not sound basis for objective decision-making. It is further not a proper legal basis for the issuance of a detention order.

In the same vein, political expediency cannot be allowed to become a factor, more so where the detentions are a ‘face saving’ measure. And as much as the Government may deny this to be the case, the truth is that the Government is acting in its own cause. This is as compelling a reason as any to not invoke the subjective processes of the ISA.

The Prime Minister has publicly declared that the authorities have evidence of the alleged terrorist links HINDRAF is said to have ('Close watch on Hindraf', The Star, 08.12.2007). Minister Nazri has also publicly declared the existence of such links ('Link is with Tamil Tigers and India's Rss, says Nazri', The Star, 08.12.2007). If this is the case, then there is more reason for the five or any number of other persons involved to be appropriately charged and prosecuted.

The detention of the HINDRAF 5 may also have the retrogressive effect of, by reason of its ‘chilling’ effect, stifling genuine civil society efforts aimed at promoting discourse on the path this nation must take to ensure sustainable and inclusive development. This would include efforts by various interest groups aimed at addressing the underlying grievances that have caused citizens to peaceably assemble these past five weeks or so. It would be regrettable if these groups, in particular that part of the Indian community that, no matter the rhetoric and the politics of the situation, have felt represented in a way that they have not before were to take from the detentions a signal that the Government does not consider their situation and grievances as being of sufficient importance.

MIS

20 comments:

ycg said...

MIS, we all know "innocent until proven guilty". Some country applied "guilty until proven otherwise". but Malaysia is unique, truly Asia i would say. the government here adopts "(with eyes open wide) we need to prove?"

MALAYSIA BOLEH!!

Sharing said...

Why these Five be set?
======================
The wood been dried and stuck
with all water been sucked!

A spark in the sky
will set the wood to fire!

They thought these Five
will cause the fire
but they forget the tighter it takes
the tighter a bundle for fire to catch!

The wood is too dry not to catch fire
one spark held cannot avoid other spark in the air!

To catch the Five
have catch the rest
their hearts and eyes not to guess
but to put off hands on Act of I.S.

Pakistan they want to follow the test??

Michael Sun said...

Dear Malik Imtiaz

Power corrupts and absolute power corrupts absolutely. This is best examplified by the extending just one year of the retirement age of the Election Commission chairman.

We need to pray for God to continue to bless us inspite of our inequities. Let the good Lord punish them.

Anonymous said...

The ISA is back !
Why not charge the Mufti of Sabah for issuing a fatwa that other religions' effigy,statutes are HARAM ? this fatwa is UNCONSTIUTIONAL ! ... and worse still, he can tell the State Government to act ulta virus the FEDERAL CONSTITUTION, which guaranteed the right to FREEDOM OF RELIGION !
THE ISA HAS BEEN MISUSED AND ABUSED UMPTEEN TIMES , FOR THE SOLE PURPOSE OF SAFE-GUARDING THE POWER OF THE RULING GOVERNMENT, UNDER THE GUISE OF NATIONAL AND PUBLIC SECURITY !
For the PM to be also holding the post of INTERNAL SECURITY MINISTER is WRONG,UNETHICAL AND UNINDEPENDANT !No one has a ghost of a chance against a situation like this ! The PM don't like you, he issues an ISA detention order against you, to shut you up !
Anti ISA

Anonymous said...

ISA is not a creation of the Malaysian government.

We are just stuck with this legacy from the evil British.

We should blame the British for this and send a petition to the Queen.

xxx

Anonymous said...

At the risk of being 'pooh pooh'ed by the anti-establishment crowd, i would risk arguing that some form of preventive detention laws are necessary in a multiethnic multireligious society like ours. One only has to look at India to see how easy it is to fan inter-ethnic or inter-religious riots and violence. All it needs is one or two fanatics to appeal to primal fears of the populace.

However, without a doubt, there must be some objective check and balance on the application of the law, perhaps a variation of the Diplock courts of Norther Ireland. This is to ensure that the law is utilized for truly security reasons rather than political expediency of the government of the day.

So whilst it is easy to argue that the PM has exercised the use of the ISA for political expediency, it cannot be denied that the arrests (and the timing thereof) would to a large extent 'appease' the resentment of the Muslim Malay population and prevent any untoward demonstration in the vicinity of Kg Baru on Saturday (as the various SMS's and e-mails flying around suggest).

Mr. Smith said...

This country is going to the dogs and the dogs are everywhere now - in the Cabinet, in parliament, in the Election Commission, in the Police Force,in the electronic and print media, in the Judiciary and in the Civil Service.
The rot is complete.
The people have become servants and the government and its dogs, the masters.
We can only show our protest by voting Opposition in a heavily flawed and lop-sided electoral system.
They are going to destroy this country.

multidimid said...

It was an easy way out for the Government & especially for the AG who was running around chasing for concrete evidence. No Charges, Prosecution, Trial, Bail or Arguments. The PM just signed the detention order and branded them as “traitors” and off they ere sent packing to Kamunting, Taiping ISA Detention Camp. Zainuddin has the audacity to declare it was what the people wanted and not the easy way out.
The Government must organize the present reality according to its strength and not to the perceived fears of “national security” – just a belief and not a truth at all

Any misunderstandings, crimes, and atrocities, real as they are, are seldom committed by Hindraf out of any intent to be evil, but because of severe misinterpretations about the nature of good, and the means that can be taken towards the actualization of it struggles and goals
For more details on
OPPOSITION & NGOs Condemn ISA ARRESTS; They must be charged and tried in open court; DAP to file writ of habeas corpus; US demands due process for the detainees; and other cements
Go H E R E

Tommy Peters said...

... it cannot be denied that the arrests (and the timing thereof) would to a large extent 'appease' the resentment of the Muslim Malay... anonymous ..

I'm with you on this

Anonymous said...

It takes two to tango. Hindraf sidestepped the law and the rights of the Malays , so they will have to be stepped on with ISA.

Eloi said...

Dear MIS

As an indian and a citizen of M'sia, the detention has hurt me and my kind severely. However, seeing the outpouring from other races only proves a point. We are all united in our struggles. Let's put aside our differences and UNITE for a common cause. ISA is just a tactical position adopted by the ruling party. We indians have survived being marginalised for so long, I guess the 5 under ISA won't mind enduring a little more, but,we on the outside; who/where/what/how/when are we (all malaysians) going to stand up and lead our course in history. Everyone, like me are waiting for the next move. As time flies, the ruling party gathers its forces and prepares for its next action. We are like sitting ducks, waiting for them to make a move when we were the ones who asked for a free and fair election in the first place. Looks to me like this is/will not happen. All faculties have been utilised to usurp the very process of free and fair elections. Are we going to sit and wait for something that we obviously know the outcome? All their efforts are for another 1 more term but nothing more. Are they planning to squeeze the very last bit of integrity from the government and drown us into chaos after? This is certainly a greater risk. We have to claim back our beloved country from these oppressors. How does it feel to be raped continuously with sense of hope for any release. A slow death, we will eventually encounter.
May the almighty bless our country.

suaramalaysia said...

Malik,

Have you ever watched the old Cowboy Westerns where a mob of enraged self-righteous people "seek to carry out justice" and conduct a "trial" before they proceed to a public-square lynching?

Change the time and place and a couple of names plus the props and put Hindraf in the plot as the chief evil dark hoodlums. And the mob that puts the rope around their neck needs no further introduction.... the Barisan Judge and executioner will make sure "justice" is "seen" by all and that the real evidence will dangle at the end of a rope.

It is a dangerous sign to monitor the current scenario and plot unfolding in the land of mainstream government controlled media। None of these media organizations gave Hindraf or its leaders an equal or fair opportunity to present its views or to respond to the overwhelming tirade of allegations leveled against them.

Instead, there has been a calculated, slanted and selective barrage of insinuations as well as maximum coverage on
unsubstantiated allegations. Djs thought to have joined the march were fired from radio stations, a company with the same name lost its business license and the intensity of this momentum is liken to a massive vigilante.

And now as the world witnesses this malicious and dastardly act of imprisoning Malaysian Indians lawyers without trial, I believe that it will only strengthen the community’s conviction to stand firm until justice is unshackled. There are some pertinent issues that one needs to evaluate in this spectacle:

Firstly, the claim that ethnic cleansing of Indians had been systematically carried one is not a fictitious one. Neither the Police nor the Attorney General nor the other parties concerned have disproved it. These claims are yet to be determined as true or false in a court of law. And so justice has again been hijacked.

Hindraf in its reports reveal that they posses valid documented evidence for their claims and that those claims are authenticated by Police reports.

Its memorandum was reproduced on its "Police Watch" website gives a comprehensive list and volume of times and dates that these incidents were to have taken place. It is one thing to be shocked over such revelation; it is altogether another story and plot to shoot the messenger for disclosing it.

Secondly, Hindraf leaders were demonized by a calculated campaign skillfully orchestrated and executed by the government, the Police force, the government controlled-media and a host of extras in supporting starring roles played by prominent parties and agents.

Hindraf's response to these continued fabrications, such as the claim that it had links with terrorist groups and were a threat to national security were omitted and restricted.

Thirdly, Hindraf leaders were obstructed from carrying out their legal duties as lawyers and were arrested and jailed when they sought to see those who were detained after the Shah Alam temple demolition.


Malaysians need to stand united against such human rights violations and detentions without trial. When one chooses to remains silent when a minority is being crushed, it may reap silence when if falls on them. Now is the time to make the choice to use your voice.

Bigjoe said...

You continue to argue the judicial view well but the assumption here is that its about justice. Granted its your role to make sure the details are noted.

But why do the likes of someone like you obviously aware, insist of avoiding the harsh reality that this is about political convenience and raw power?

Malik Imtiaz Sarwar said...

Big Joe,

I agree with you, politics and power rule the day. You and I know that. The fact that that is the case does not make it right though, especially if the power games impact on every day malaysians like you and me.

I agree that going on about justice can be frustrating. Like a broken record, some might say. But then, sometimes it takes saying something over and over again for it to be heard and understood. And, of course, there are those who do not know the law, understand what justice can do for them.

Cheers,
MIS

Anonymous said...

Hindraf was able to attract 30,000 supporters to the Indians' cause. That achievement must be scary to the government. Indians were said to be BN supporters, and helped tilted the balance whenever they could. So, MIC was very supportive that Hindraf leaders be ISAed, to preserve its position in BN.

Hindraf was merely adapting the technique of UMNO in trying to organize support from its followers. In fact, it is not yet a political party, and its objective was to call attention to their sufferings, and hoped that the bully would spare them some pains. Indeed, UMNO is in control of all the seats it needed, and there is no need to be more racist that it has been, to return to power.

It cannot be true that the PM does not know that the Indians are marginalised. Yes, he was weak to make any changes to government policies, or even to minimise the deviation of the implementation of NEP. But his predecessors was harping on the charge that he was not doing enough for Malays. One wonder whether it was his 1/8 Hainanese blood that made him subsevient to Malays. But his predecessor was half Indian and he was able to make the tulin Malays Kow Tow to him. Yes, Others not so tulin Malays, like those running Turkist and Arab blood in the body are behaving as Malay as needed for the special position.

PM AAB should now think hard that when he is still the figure-head, he should use whatever influence he has, especially on those that had no clue that he is powerless, (other than the right to ISA people), to change the political structure away from race-based organization. When the race-based party is winning elections all the time, only the deaf and blind would believe that it shares power with others. The best it has done was to dish out some crumbs it had no time to chew to the running dogs who are the gatekeepers for UMNO.

To ISA the leaders of those who cried in pain is cruel.

Crankshaft said...

It is difficult to express outrage at this usage of ISA without getting emotional.

The fact that the government is cowardly enough to hide behind such a draconian act is sufficient to show us what a mistake we have made by allowing them to attain this level of power.

It didn't come suddenly. BN gradually grew its roots and now, they're next to impossible to dislodge.

What hypocrisy to criticise the Americans for Guantanamo Bay when there is a small-scale version of it on our own shores??

C. said...

Found these excerpts from the Aliran’s webpage. http://www.aliran.com/oldsite/hr/js1.html

I felt strongly that it should be made clear for all to see the gross injustice being practised by the ruling party and our current PM.

Views of Two Former Prime Ministers on the ISA

“The ISA introduced in 1960 was designed and meant to be used solely against the communists…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”,
Tunku Abdul Rahman, First Prime Minister.

“The ISA is a measure aimed at preventing the resurgence of the earlier communist threat to the nation… During my term of office as Prime Minister, I made every effort to ensure that pledges of my predecessors, that powers under the ISA would not be misused to curb lawful political opposition and democratic citizen activity, were respected.”
Tun Hussein Onn, Third Prime Minister.

These statements were made in affidavits at the habeas corpus hearing of Dr. Chandra Muzaffar, in 1987.

I Suck Ass (ISA) said...

ISA rocks! It shows that Malaysia can at least compete with the US in one field!! Come on Bush, see what you got!

Malaysia Boooooooooo......(lost voice)

The Civillian said...

Khabar angin berkesiuran, ketegangan makin meregang, sebagai pengarang dan seniman ini amat membimbangkan. Jangan jatuh dalam perangkap bodoh. Ada ekstrimis dalam Islam, juga ada ekstrimis dalam Hindu. Jangan tergelincir, damai-damai sahajalah.
OLEH FAISAL TEHRANI

I wish Malaysia would be peaceful again as it always was before.

Anonymous said...

While the ISA would seem draconion and the issues controversial at best, its just that matters a beginning to be out of hand. So extraordinary circumstances require extraordinary measures. This is wisdom and justice too for the many.