The BN's ISA dilemma

thenutgraph.com

HOME Minister Datuk Seri Hishammuddin Hussein announced in August 2009 that amendments to the Internal Security Act (ISA) would be tabled during the following October Parliament sitting. This was just after the massive anti-ISA protest in Kuala Lumpur. That amendment, however, never materialised.

Hishammuddin then said in December 2009 that the ISA amendments would be tabled during the current March-April 2010 Parliament sitting. But on 19 March, Hishammuddin again postponed the parliamentary amendment.

The Barisan Nasional (BN) government's overtures to review the ISA began as soon as Datuk Seri Najib Razak assumed the premiership in April 2009. Immediately upon being sworn in, Najib released 13 ISA detainees, including two Hindraf political prisoners arrested in December 2007 and several Jemaah Islamiyah members. Najib promised that he would not wield the ISA, which allows for indefinite detention without trial, arbitrarily. A month later, his administration released another batch of ISA detainees, including the remaining Hindraf prisoners of conscience.

According to former detainee, academic and activist Dr Kua Kia Soong, this is not the first time the BN has suggested reviewing the ISA. But if it does table the amendments in Parliament, it will be the closest the BN has ever come to living up to its promise.

Realistically, though, what specific amendments can Malaysians expect the BN to make? What amendments do BN Members of Parliament (MPs) themselves want? And will these amendments make the Act less susceptible to abuse?

Defining amendment

Simpang Renggam Member of Parliament (MP) Liang Teck Meng tells The Nut Graph that his party, Gerakan, has consistently voiced its opposition to the ISA even within the BN.

"Our Youth wing calls for the ISA to be abolished completely, while the main body calls for five areas to be amended," he says in a telephone interview.

The five areas are:

Limiting the home minister's powers in ordering detentions.

Preventing the ISA from being used to stifle legitimate political dissent.

Shortening the detention period — this is now 60 days and is indefinitely renewable in two-year blocks.

Ensuring the detainees' welfare.

Reintroducing judicial review to throw out unconstitutional ISA detentions.

"Only if these five areas can be reviewed to incorporate effective checks and balances would I consider the parliamentary amendment a success," says Liang. Anything less, he says, would be an improvement on the existing law but still a failure on the whole.

Being realistic?

Umno's Rembau MP Khairy Jamaluddin, however, says, "We have to be realistic in what we hope for.

"Gerakan's concerns also matter to me, and I personally wish we were ready for more sweeping amendments, but I'm not sure if all of these concerns can be addressed," he tells The Nut Graph in a telephone interview.

Therefore, Khairy says, "Any improvement would be welcome at the moment."

Raja Petra (Pic by JohnleeMK / Wiki commons) Khairy's, and to some extent Liang's, reticence points towards the BN's dilemma regarding the ISA. On one hand, the ruling coalition knows that public opinion is increasingly stacked against it on issues such as the ISA. Even BN cabinet members cried foul when the ISA was used in September 2008 against political blogger Raja Petra Kamaruddin, the DAP's Teresa Kok, and Sin Chew Daily journalist Tan Hoon Cheng.

On the other hand, it is apparent that the BN finds it painful to even review the ISA, let alone abolish it. The MCA's Labis MP Chua Tee Yong articulates a possible reason why, from the BN's perspective: "We have many different races in Malaysia, and restricting the use of ISA on terrorists only is too confining for me."

He adds that a "balancing act" is required with any ISA amendment. "For example, passport forgery is a threat to national security. But passport forgers are not terrorists, and so we still need a mechanism that allows us to address these sorts of threats," he tells The Nut Graph in a phone interview.

"We also don't want the day to come when whoever takes over power decides to use the ISA to just arrest everybody. That's why we need checks and balances," he concludes.

Checks and balances

Chua suggests a two-tier response to hold accountable the use of the ISA.

Set up a committee, which includes the home minister, that deliberates before any arrests are made. According to Chua, this is essential because detention without trial is "serious".

After arrest, ensure that judicial review is available in order for the decision to be challenged if it was unconstitutional.

Chua (Source: parlimen.gov.my) "The problem right now is that the implementation of the law is too haphazard, until we get people saying things like, 'This individual was arrested for their own safety.' That's ludicrous," Chua says.

Right now, it is unclear what the exact amendments to the ISA will be. In June 2009, Hishammuddin said the review would include shortening the initial 60-day detention period, appointing independent investigating officers, and reviewing definitions of "threats to national security". Judicial review, a key constitutional check-and-balance mechanism, went unmentioned.

So, in theory, even if Hishammuddin's suggested amendments were passed, the home minister would still have wide and arbitrary powers to order ISA arrests. What guarantee would Malaysians have, then, that the government will not continue to use the ISA arbitrarily to silence legitimate dissent, as it has repeatedly done in the past?

"The only guarantee would be to have a good person as the home minister," Khairy quips. Relying on a benign minister, unfortunately, hardly qualifies as a democratic check-and-balance mechanism. And, if previous ministerial appointments are anything to go by, it's a rather risky measure to take to ensure the state cannot just lock people up indefinitely.