Friday, April 17, 2009

Adapting To The Times


Adapting To The Times

Proponents of the Internal Security Act justify their viewpoint by reference to the need for law to enable the authorities to deal with threats to national security. In principle, there is nothing objectionable with that position. As I explain below, the Federal Constitution allows for the enacting of laws to that end.

The shape these laws take, however, depends on the nature of the threat that is sort to be addressed and the measures needed for that purpose. These features inform any discussion concerning the relevance, if at all, of laws that allow for detention without trial under our constitutional framework.

There is no general power in Parliament to validly enact laws that contravene the fundamental liberties guaranteed under the Constitution. That is why the Criminal Procedure Code has crystallized in the form it has, obliging the police to produce an arrested person before a magistrate within twenty-four hours of arrest. If the police want to keep that person in custody without charging him or her for a further period of time to allow for further investigation, they have to convince a magistrate of the need for this extension.

Where the offence being investigated is punishable by death or with imprisonment of more than fourteen years, the magistrate can order a further detention of up to seven days with it being open to the police to seek a further seven days thereafter. Where the offence is punishable with imprisonment of less than fourteen years, the maximum period of further detention is seven days, in stages of four and three days respectively.

The rationale is that the individual being investigated should be charged as soon as possible or be let go, the thinking being that if after that many days as is permitted the police have got no basis to charge, then continued detention is not justifiable. The individual can be rearrested subsequently if more evidence surfaces and then charged, but unless and until that occurs, he is entitled to liberty. If charged, the accused then has the benefit of all the safeguards of the criminal justice system the most important of which is a trial.

That is what the guarantee against the denial of life and liberty “save in accordance with law” means.

There is however a constitutionally entrenched exception to this general rule. Parliament can enact laws that circumvent the guarantees of liberty and associated guarantees to deal with the threat of action by a substantial body of persons that aims to destabilize the nation or undermine democracy.

The ISA was enacted using this exceptional power. The “substantial body of persons” concerned was the communist insurgent army whose actions had led to concerns about the security of the nation and its way of life. That is what made its enacting valid; it was a necessary means to disenfranchising the insurgents and preventing them from regrouping. The criminal justice system might have impeded efforts to deal with the insurgents effectively.

We tend to overlook the obvious truth that solutions must be crafted to suit the problems they are intended to solve. The ISA was designed to a particular end. It was never intended to define the upper limits of executive action where national security was concerned. It was never meant to be the yardstick.

There is no difficulty with invoking the criminal justice system to deal with individuals who are not affiliated to a larger body of persons, be they terrorists or the organizers of demonstrations or socio-political bloggers, no matter how convenient preventive detention may be.

This is not a matter of preference; it is the law.

If a crime has been committed, let the accused be tried. If no crime has been committed, then there is no basis for circumventing constitutional freedoms unless the nation itself is threatened.

For those who fear the uncertain, an anti-terror legislation will allow us to deal with actual national security concerns effectively. This law could be of a hybrid nature, applying general principles of criminal law for those acts of terrorism that do not fall within the constitutional exception but at the same time allowing for exceptional steps to be taken where the terrorism concerned does. The aim of these exceptional steps should be to deal with a clear and present danger and not to substitute criminal due process with executive whimsy. Detention periods should as such be of very limited duration, if a crime has been committed there should be a trial, and be made subject to strict judicial scrutiny. This would encourage less sloppy policing and lead to greater security.

Do we really need the ISA? With the range of more effective options available to us in this day and age, I do not think so.

(Malay Mail; 17th April 2007)

MIS

11 comments:

Tiger said...

MIS, 3 articles in a row on ISA as the subject.
At least we have clear and logical reasons on why this law should GO.
Would like to hear your personal thoughts and interpretations of other fascist (at least to me) laws such as Printing/Presses, Sedition Act etc.
I can see the original motive in passing these laws, but unfortunately the enforcement is not equal nor fair across the board. For instance, Utusan Malaysia is allowed to go off scot-free despite a totally seditious headline.

LAT said...

Is the presence or action or speech of YB Terresa Kok, Sin Chew reporter Tan, Blogger Raja Petra and Mr. Karpal Singh ( all of them are RAKYAT ) caused a very serious threat & terror to our country that they must be placed in the Kamunting prison in order to safeguard the life of the Rakyat walking on the street ? The answer is very clear and unambiguous i.e NOT that we know of thus far.

The fact speaks for itself when these innocent detainees were released and walking on the street receiving overwhelming welcome & support by ALL the Right-Thinking Rakyat, REJOICING with TEARS OF JOY !

In fact the action by the relevant home minister in arresting these innocent detainees under ISA( Ikut Sukahati Albar)had threaten ALL the Right-thinking RAKYATS in this Bolehland !

Whose action is MORE threatening & terrorising ? The abovesaid INNOCENT DETAINEES or the
relevant HOME MINISTER ?

Sarah Elizabeth said...

Reminds me of America's laws regarding terrorism... Our government is allowed to imprison a "suspect" of terror without any of the formal proceedings usually followed, such as questioning, obtaining a search warrant, finding evidence to suggest terrorism, etc... Many times innocent Muslim Americans were targeted for simply having a similar name to a terrorist, and were tortured and held captive for months before being set free...

Whether ISA or America's Anti-terrorism efforts, these laws are always abused... I think they should be abolished.

Parpu Kari said...

SUKA HATI LA BRO!

Please read here on what happened in Perak! Sila baca di sini mengenai situasi di Perak!

http://parpukari.blogspot.com/2009/04/perak-truth.html

Pratamad said...

Thanks for educating and informing the public on the bounds of the Constitution as far as enacting laws is concerned. The rakyat should be well informed so that they know when the government goes over the limits.

Any new law to tackle terrorism must be as specific as possible, otherwise opposition politicians and political activists will soon be labelled terrorist and conveniently locked up.

Tiger - in the case of Utusan and other similar cases, it is a problem of government machineries being abused to become an extension of the BN. It will take a government change to rid of those heads (AG, IGP, etc) who have failed to discharge their duty to the nation.

Anonymous said...

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DIASPORA said...

CONGRATULATIONS FOR BRINGING GLORY TO MALAYSIA. I DID NOT HOW ELSE TO CONTACT YOU.

ChengHo said...

Are u coming for NPC Public forum in Ipoh tonight?

Malik Imtiaz Sarwar said...

Thanks, Diaspora. I will write something about the award soon.

Cheng Ho, I was only asked yesterday afternoon (23rd April). I had already committed elsewhere.

MIS

Nanda said...

Congratulations on the Bindsman Law and Campaigning Award, sir.

Looking forward for you write up.

Best regards

Nanda

Malaika said...

Brother Malik,

I wish to share this with Brother Anonymous (22 April, 7.59pm) from "The Path of Muhammad" by the 16th century Sufi scholar, Imam Birgivi:

We cannot undertake the struggle to oppose the faithless and the sinners, while thinking that we are the saved and they are the damned. You should know that Allah Most High is aware of the wrongdoings you are hiding from others while busy reprimanding them for their sins. You must consider that in the end you may be worse than the ones you oppose and fear for yourself rather than the effects of the acts of the people you blame.

Do not feel superior and claim that you are pure. Allah is the one who truly knows those who forbid themselves from doing wrong for the love of Allah. (Najm 32)

Peace to all.