When news of the USA PATRIOT Act hit Malaysian shores, the government proudly claimed to the local press that the Malaysian Internal Security Act (ISA) had become an international blueprint for countering terrorism, from the United States to the Philippines. In truth, the ISA––enacted in August 1960 to replace a colonial legislation, the Emergency Regulation of 1948––remains today in substance as it has for the past four decades: an administrative measure that allows for indefinite detention without trial.
Days before Malaysian Prime Minister Mahathir Mohammad met President Bush in May this year, an English-language daily, the Star, dedicated its entire front page to its lead story, “US Endorses ISA,” referring to a meeting between Rais Yatim, the current de facto justice minister, and U.S. Attorney General John Ashcroft. Rais was reported as saying:
I believe that after the meeting there will be no more basis to criticize each other’s systems, specifically the ISA, because if they do that, then the Patriot Act, which is quite similar in nature to the ISA, could come into a position of jeopardy itself. Ashcroft seemed to understand the existence, need and the future of the ISA in as much as we understand the Patriot Act.
Back in Washington, a White House that once distanced itself from the Mahathir regime because of its dismal human rights record now showered praise upon the prime minister for his role in the detention of alleged Muslim “extremists.” The United States is not alone in reversing its previous condemnation of the use of the ISA; Australia and the United Kingdom have also vocally and enthusiastically supported the Mahathir regime over the past year.
Originally drafted to quell communist insurgents in the 1960s, the ISA has since been used to detain alleged “menaces” to the newly independent Malaysia. Initially, these “menaces” were the communists and leftists; later, radical students and labor activists were nabbed in its web. Some have served time for more than a decade without trial. In the last fifteen years, the term “national security threat” has evolved to include social activists, opposition leaders, alleged Islamic deviants, and even currency and passport counterfeiters.
Conservative estimates from the Malaysian human rights NGO Suaram put the total number of persons detained under the act since 1960 at 10,000. Justice Minister Rais put the figure at more than 20,000 people in his 1995 book, Freedom under Executive Power in Malaysia. On October 27, 1987, in Operation Clear-Weeds, the largest sweep since the early 1970s, 106 people were detained under the ISA. Most were opposition leaders, academics, and social activists. Citizens’ indignation at such arbitrariness caused the emergence of two prominent human rights organizations in 1989, Suaram and Hakam (the National Human Rights Society).
The sacking and subsequent ISA arrest of the former deputy prime minister, Anwar Ibrahim, and twenty-nine of his associates in 1998 catalyzed a multi-sector, multiparty movement for political reform. For the human rights movement, it was the opportune launching pad for a popular campaign to repeal the ISA. And popular it was. In 1998–99 tens of thousands of people attended public meetings on the ISA and issues of civil liberties held around the country.
Prior to the 1999 general elections, several political parties, organizations, and individuals aligned with the ruling coalition joined 2,000 mostly Chinese-based associations, clans, and guilds in signing the Malaysian Election Appeal. Among the many demands was the repeal or at least the review of the ISA. When ten opposition and pro-reform activists were arrested under the ISA in the months of April and May 2001, there was once again mass support for release of the prisoners and for the abolition of the ISA.
Yet, in the aftermath of September 11, public and political support for the repeal of the ISA has waned, overshadowed by a global fixation with Islamic “terrorism.” There are now some seventy people detained without trial or charge under the ISA—alleged members of shadowy Islamic groups with interchangeable names and linkages, like the Malaysian Mujahideen group, Jemaah Islamiah, and even al-Qaeda, depending on which politician speaks on what day––on sweeping claims that they are extremists or “militant” Islamists bent on destroying Malaysia and rebuilding the remains into an Islamic state. Since the Bali bombing, another five men have been detained. The Mahathir government has seized every opportunity to declare national security paramount and the ISA an indispensable weapon against terrorism.
All this has made the work of human rights advocates increasingly difficult, especially in the face of the government’s massive propaganda machine that exploits the public’s worst fears. Even then-chairman of the National Human Rights Commission, former Deputy Prime Minister Tan Sri Musa Hitam, was quoted a month after September 11 calling for democracy and human rights to take a back seat and to allow the government to deal with the threat of possible terrorist activities in the country. The path has been opened for blanket laws masked as safeguards for public safety and the utilization of a discourse that generates fear.
There are democracy and rights advocates who continue to seek the repeal of the ISA but who at the same time call for a substitute “antiterrorism” legislation. Lim Kit Siang, chairman of the Democratic Action Party, former ISA detainee, and one of the more astute rights advocates in the country, released a statement in June calling for a multiparty–NGO consultation to discuss the possibility of enacting an antiterrorism law. Thankfully, this has been shelved, at least for the moment. Rumblings of the debate remain among the Malaysian NGOs, however, including some from the Abolish ISA Movement. These arguments range from amending the ISA in accordance with international human rights standards to campaigning for judicial safeguards (as opposed to an outright repeal of the act).
Whereas in the past an ISA arrest could galvanize a number of organizations into action, now there seems to be an overwhelming need to distinguish between “political” detainees and “Islamic” detainees. Pro-reform activists currently incarcerated in an ISA detention camp have asked that their campaign be distinguished from that of the alleged Islamic extremists arrested. International human rights groups have also been relatively hesitant to categorize the alleged Islamic militants as political prisoners. For example, during Mahathir’s visit to the United States this past May, Amnesty International USA released a statement calling on President Bush to pursue the release of six pro-reform detainees, but made no mention of the alleged Islamic extremists.
Activists working in Malaysia who promote such distinctions between Islamic militants and other political prisoners would do well to remember the facts at hand. The existing laws in the Malaysian criminal justice system are more than sufficient to counter or punish any actual acts of terrorism. To this day, the government has shown no evidence of the detainees’ terrorist activities to the Malaysian public––neither in the courts nor in the form of a white paper to the parliament. None of the alleged Islamic extremists has been charged in court.
To derail the propaganda machinery of the state, human rights groups must first debunk the myth that Islamic terrorism exists. They must assert with greater vigor the fundamental rights of alleged Islamic extremists who remain incarcerated under the ISA. They must also publicly defend all individuals. The ISA does not discriminate with regard to religion, political beliefs, class, or gender––and neither should human rights activism.
Calls from certain quarters of the NGO community to bind the act to international human rights standards and judicial safeguards are misplaced: preventive detention is almost always accompanied by torture and unfair trials—the most deliberate of human rights abuses. Throughout Asia governments are using so-called antiterrorism and national security laws to curb political dissent and self-determination movements and are in flagrant violation of international human rights norms. The human rights community must help the public understand that preventive detention of any kind, even with safeguards like judicial review, invite abuse in one way or another by the powers-that-be. The proof lies in the Malaysian government’s record of exploitation of the ISA for the past four decades. Any substitute legislation will undoubtedly follow the same path.
Two years after the enactment of the ISA R. H. Hickling, its original drafter, reflected:
I must hope that the practice of imprisonment without trial, charge or conviction admitted by the Act 1960 will not be regarded as a permanent feature of the legal and political landscape of Malaya or for that matter of Asia generally.
This hope will dim even further if human rights groups fail to expose the official discourse on terrorism in Malaysia as fraudulent. If the human rights communities in Malaysia and around the world do not speak up in a concerted voice against preventive detention now, the costs will be great; the real terrorism of authoritarianism will be finally normalized.
Since the writing of this essay, there have been a number of developments relating to ISA detentions. The highest court in Malaysia—the Federal Court—ruled in September that the ISA detention of five pro-reform activists arrested on April 10, 2001, was illegal and mala fide. In October the court told the Malaysian parliament that its accusation of bank robbery against the Kumpulan Mujahideen Malaysia was false. In November the Shah Alam High Court ruled the detention of Nasharuddin Nasir, an alleged member of Jemaah Islamiah, illegal and ordered his immediate release. Upon being freed, Nasharuddin was immediately rearrested with a fresh detention order from the home minister. Since then Prime Minister Mahathir has stated that the ISA will be amended to stop the courts from challenging the police and the government.
A Post-Bali Turnaround on Rights
Karim Raslan Responds
When something (or somebody) you know and love is brutalized, you cannot help but feel aggrieved and angry. The bombing on Kuta beach and the murder of more than 180 people feel to me like a terrible personal assault.
The Bali bombers set out to destroy the island’s economic livelihood, wreck its precious racial and religious balance, and shatter Indonesia’s hopes for a restoration of order and stability. The sheer destructiveness of the crime makes me question the humanity of those involved. What agenda can these murderers hope to realize? They are the merchants of death, horror, and evil. Islam, the Holy Quran, and the Prophet Muhammad have been grossly abused by their act.
It is hard for any of us to control our emotional responses in the immediate aftermath of such a ghastly tragedy. The principles enshrined in the UN Declaration of Human Rights have always underpinned a great deal of what I write. Yet this murderous attack has forced me to reassess my commitment to civil and political liberties as sources of social harmony and stability.
Coming from Malaysia, where the government has scant regard for human rights and civil liberties, I have always prodded the authorities toward an increased understanding of the role of personal freedoms in both human development and nation building. As such, I have repeatedly criticized the government for its use of the Internal Security Act.
In the aftermath of the Bali attack, I am rethinking where I should be drawing the line in the perennial debate over the tension between civil and political liberties and national security. While the two concerns are not mutually exclusive nor, indeed, necessarily in opposition, I am torn by an emotional—maybe even a primal—need to establish a safety zone around myself. I now feel less sure about my willingness to live with the uncertainties of democracy and unfettered freedoms. This is a terrible admission, but I should be honest about my concerns since I suspect there are many people who would agree with me.
In this respect I am not alone. As Elizabeth Wong notes, even some of Malaysia’s most passionate advocates of human rights find themselves deeply troubled—although most have continued to support publicly human rights protections. I think Wong is taking it too far to say that there should be no tightening of restrictions; we need to have some protections against terrorism. Imtiaz Sarwar, a leading constitutional lawyer and human rights activist, argues passionately that “measures can and should be taken,” even as he warns against draconian laws.
A civil society depends on the honest and willing participation of all its members. But how are we to work with people who refuse to agree with an ethos of tolerance and peacefulness? How can we continue to espouse without qualification civil liberties and the due process of the law when there are people for whom such guarantees are anathema? How can we proceed with such a venture when there are forces who would destroy rather than build, murder rather than nurture? I wish I could be as certain as Wong, but I am not.
This response is based on an article that appeared in the Business Times Singapore (October 16, 2002).