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