The Internal Security Act 1960 (ISA) is a preventive detention law in force in Malaysia. Preventive detention was inherited by Malaysia as part of the colonial baggage that the British left behind. Malaysia is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights. Article 149 of the Malaysian Constitution under which a person may be detained is characterised by subjective language. Such terms as ‘substantial body’, ‘substantial number’, ‘cause to fear’, ‘excite disaffection’, ‘promote feelings of ill-will and hostility’, all embody wide areas of discretionary interpretation.
Preventive detention first became a feature of the then Malaya in 1948 primarily to combat the armed insurgency of the Malaysian Communist Party. The Emergency Regulations Ordinance 1948 was made, following the proclamation of an emergency, by the British High Commissioner Sir Edward Gent. It allowed the detention of persons for any period not exceeding one year. The Emergency Regulations Ordinance 1948 was primarily made to counter acts of violence and, conceivably, preventive detention was meant to be temporary in application. The emergency ended in 1960 and with it ended the powers contained in the Emergency Regulations Ordinance 1948 as it was repealed. The power of preventive detention was however not relinquished and in fact became an embedded feature of Malaysian law. In 1960 itself, the government passed the Internal Security Act under Article 149 of the Malaysian Constitution.
It permitted the detention, at the discretion of the Home Minister, without charge or trial of any person in respect of whom the Home Minister was satisfied that such detention was necessary to prevent him or her from acting in any manner prejudicial to national security or to the maintenance of essential services or to the economic life in Malaysia. The ISA is one of the most controversial Acts enacted under Article 149 of the Malaysian Constitution. Section 8(1) of the ISA provides that ‘(i)f the minister is satisfied that the detention of any person is necessary …’ then s/he may issue an order for his/her detention. The three grounds given in Section 8(1) upon which the order may be based is where a person has acted in any manner prejudicial to the:
a) Security of Malaysia or part thereof;
b) Maintenance of essential services; and,
c) Economic life.
The power to detain seems to be restricted by section 8(1) to a period not exceeding two years but the restriction is really illusionary because, by virtue of section 8(7), the duration of the detention order may be extended for a further period not exceeding two years and thereafter for further periods not exceeding two years at a time. The extension to the detention order may be made on the same ground as those on which the original order was based or on different grounds. In delivering the judgment of the Court, Steve L.K. Shim CJ (Sabah & Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir (2003) 6 AMR 497 at page 506, has accepted that under section 8 of the ISA the Minister has been conferred powers of preventive detention that ‘can be said to be draconian in nature’ but nevertheless valid under the Malaysian Constitution. In addition preventive detention is also now allowed by the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights.
Section 73(1) Internal Security Act 1960: “Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe that there are grounds which would justify his detention under section 8; and that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof.“
Sect 8. Power to order detention or restriction of persons. “(i) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or the economic life thereof, he may make an order (hereinafter referred to as a detention order) directing that that person be detained for any period not exceeding two years.“
A detenu can make representations against his/her detention if an order of detention has been made against the detenu by the Minister under section 8(1) of the ISA but under section 73 however, the detenu seems to have no such right. Generally, the attitude of the Malaysian courts in respect of detention under section 73 is that the courts have jurisdiction only in regard to any question on compliance with the procedural requirements of the ISA and they seldom grant any substantive rights to the detenu.
First 60 days
A person detained under the ISA during the first 60 days is held incommunicado, with no access to the outside world. Furthermore, lawyers and family members are not allowed access to the detainee during this initial period. If a two-year detention order is signed, the detainee is taken to the Kamunting Detention Centre to serve his or her two-year term, during which family members are allowed to visit. Otherwise, the detainee may be released.
Torture is reportedly a major part of an ISA detainee’s daily life. Former detainees have testified to being subjected to severe physical and psychological torture that include one or more of the following: physical assault, forced nudity, sleep deprivation, round-the-clock interrogation, death threats, threats of bodily harm to family members, including threats of rape and bodily harm to their children. Also, detainees are confined in individual and acutely small cells with no light and air, in what is believed to be secret holding cells. These interrogation techniques and acts of torture are designed to humiliate and frighten detainees into revealing their weaknesses and breaking down their defences.
Several opposition parties, including the Democratic Action Party (DAP) and Parti Keadilan Rakyat (PKR) have spoken out against the ISA. Many of them have leaders or prominent members who were held under the ISA, such as Lim Kit Siang, Karpal Singh and Lim Guan Eng of the DAP, and Anwar Ibrahim of the PKR. Previously in the 1960s, the law had been denounced by such opposition leaders as Tan Chee Khoon, who said:
This infernal and heinous instrument has been enacted by the Alliance Government at a time when the emergency was supposed to be over. Then it promptly proceeds to embody all the provisions of the Emergency Regulations which during the Emergency had to be re-enacted every year, but now it is written into the statute book ad infinitum…
However, several politicians from the Barisan Nasional coalition, including its largest component party, the United Malays National Organisation (UMNO or Umno), that has governed Malaysia since independence have also criticised the ISA. The fifth Prime Minister of Malaysia, Abdullah Ahmad Badawi, went on the record in 1988 to state “If we want to save Malaysia and Umno , Dr Mahathir must be removed. He uses draconian laws such as the Internal Security Act to silence his critics.” The year before, he had also stated “Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law.” In 2003 when he became Prime Minister, however, Abdullah called the ISA “a necessary law,” and argued “We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society.”
Prior to becoming Prime Minister, Mahathir had also adhered to a critical view of the ISA. In 1966, when Mahathir spoke out in support of the Internal Security (Amendment) Bill 1966 as a backbencher, he stated that “no one in his right senses like[s] the ISA. It is in fact a negation of all the principles of democracy.”
The United States government has criticised the Malaysian government for implementing the ISA several times, most recently in 2001, when President George W. Bush said “The Internal Security Act is a draconian law. No country should any longer have laws that allow for detention without trial.” In 2004, however, Bush reversed his stance and claimed “We cannot simply classify Malaysia’s Internal Security Act as a draconian law.”, likely due to the events of September 11, 2001, and Bush’s own subsequent creation of the PATRIOT Act.