The Security Offences (Special Measures) Bill 2012 to replace ISA 1960

The Internal Security Act 1960 (ISA) is a preventive detention law in force in Malaysia. The legislation was enacted after Malaysia gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances.

Preventive detention was first implemented in Malaya by the British in 1948 to combat the armed insurgency of the Malayan Communist Party during the Malayan Emergency. The Emergency Regulations Ordinance 1948 was enacted by the British High Commissioner Sir Edward Gent.

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."

Section 8 ISA: 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."

Section 8(1) theoretically restricts detention to a period not exceeding two years but this limit is readily circumvented because under Section 8(7), the duration of the detention order may be extended indefinitely in increments of up to two years The extension of the detention order may be made on the same grounds 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, ruled that the powers extended to the Home Minister are 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.

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.

Article 151 of the Malaysian Constitution gives to any person detained without trial (under the special powers against subversion) certain administrative rights. By the terms of Article 151 the authority, on whose order a person is detained, shall, as soon as may be, inform the detainee of the grounds of detention and the allegations of fact on which the order is based. The detainee shall also be given an opportunity within three months, of making representations against the order to an Advisory Board . The Advisory Board as the name implies is not a court. Its determinations are also mere recommendations that the government is under no obligation to accept. It may also be handicapped in its deliberations by the discretionary power of the government to withhold facts, the disclosure of which would, in the executive’s opinion be against national interest.

Any person may be detained by the police for up to 60 days without trial for an act which allegedly threatens the security of the country or any part thereof. After 60 days, one may be further detained for a period of two years each, to be approved by the Minister of Home Affairs, thus permitting indefinite detention without trial. In 1989, the powers of the Minister under the legislation was made immune to judicial review by virtue of amendments to the Act, only allowing the courts to examine and review technical matters pertaining to the ISA arrest.

Yesterday, Prime Minister Datuk Seri Najib Abdul Razak had tabled the second reading of the Security Offences (Special Measures) Bill 2012 which will replace the 52-year-old Internal Security Act 1960 (ISA) in the Dewan Rakyat.

The new bill will replace the unpopular ISA and at the same time recognise the grave risks to internal security and public order from threats like terrorism, sabotage and espionage.

However the new bill will still hold the three principles which will be retained in any evolution of the new legal framework dealing with seditious acts or words :

- can create hatred, contempt or disaffection towards the Yang di-Pertuan Agong or any of the rulers;

- can promote feelings of ill-will and hostility between the different races in the country;

- question any matter, right, status, position, privilege, sovereignty or prerogative established or protected by the provisions of Part III of the Federal Constitution or Articles 151, 153 and 181 of the Federal Constitution.

Any peace loving Malaysians will love the ISA or the new bill which will later replace ISA because we have nothing against the government.

Only people who have mala fide towards the government will feel threatened by the bill which is to safe-guard the security of the majority.