Whether repeal or amend – whatever – the incontrovertible fact is that something has to be done to ISA to ensure that its draconian powers are not abused, and human/civil/constitutional rights of citizens trampled!

One has to look firstly the historical and constitutional background and context of ISA and secondly the track record of its application till to date.

Regarding the First aspect: The Constitution guarantees us rights like personal liberty, right to legal counsel, freedom of movement, freedom of speech and assembly under articles 5, 9 & 10 respectively.

However these fundamental constitutionally guaranteed freedoms are all abridged, curtailed and abrogated by article 149. Basically Article 149 says and was intended by framers of constitution to say that whilst freedoms are important – and hence guaranteed – they must, weighing pros and cons, give way to overarching greater importance of national security and the elimination of subversion. The Internal Security Act just like the other draconian legislations with the tag “essential’ – ie Emergency (Essential Powers) Ordinance, Essential (security cases) Regulations etc are all derived from the constitutional authority of article 149 of the Federal Constitution.

The main draconian features of these legislations is that the Executive/Government (represented by the Home Minister) and the security apparatus of police have all the powers – the latter to investigate, give findings within 60 days of detention to the Minister who then makes the final detention order for detainee to go to Kamunting, and there to stay for a year, renewable unless earlier release due to Advisory Board’s recommendation pursuant to their ½ yearly review. The worst part is that it is settled law that unless there are procedural defects on ISA detention our courts will not review the Minister’s decision and it is left to his “good judgment” having regard to findings of police and other evidences that he does not have to disclose – all in the name of national security to the individual insecurity and peril!

This parent article 149 from which was emanated the ISA was promulgated when the country was in the state of emergency from 1948-1957. Post independence, except for short period of 1960-1964 during Indonesian Konfrontasi and aftermath of May 13, the country has been peaceful. The original threat of Communist subversion that justified the article 149 and ISA is no more when Chin Peng & Gang signed Bangkok Accord on 24/12/1989 and laid down arms. [In fact Chin Peng had turned pussycat and been trying hard to apply for return and MyKad without avail!]

So where’s the subversion? In the aftermath of Sept 11, KMM or Jemaah Islamiyah (JI) cells? Neither KMM nor JII has bombed any parts here, more interested to use here as launching pad to bomb Bali or elsewhere. Anyway we still have the other draconian legislations with the “tag” ‘essential that can put them away or the Restricted Residence Ordinance that our highly efficient SB had used in the 1970s & 80s to “buang negeri” all the Triads….If one ones to retain ISA to contain terrorism, fine, amend the ISA to curb excessive discretionary powers of authorities and define clearly the intent and draconian powers of ISA is to specifically counter terrorism like the US’s Patriot Act or UK’s Terrorism Act, and then define exhaustively what constitutes terrorism and what does not.

The second issue to be addressed is the track record of the ISA. It is dismal. A few illustrations here will be apt.

Against backdrop of Dr Mahathir and Razaleigh tussel for UMNO presidency the Mahathir Adiministration unleashed “Operation Lalang” by using the ISA to arrest and detain without trial 106 including Opposition Leader (Kit, Karpal etc) civil servants advocates and critics religious leaders……How many of these were threats to the nation? They were not even proven threats to the position of the incumbent. It’s more like a milieu of fear to frighten political opponent.

ISA’s net changed from subversion or national security to something else – some kind of convenient and expedient catch all legislation to remove any inconvenient pest of fly to the powers that be.

It soon extended from subversion to even sexual immorality or sodomy as when both Anwar and his associate Dr Munawar Aness both incarcerated awhile in 1988 under ISA.

Then from persons of sexual immorality, it went further to cast its net wider on persons accused of religious deviance – Yeshua Jamaluddin, detained ostensibly in 1988 for being a Malay Christian Convert.

After that even better – in 2008 Home Minister detained Sin Chew Daily’s reporter (Tan Hoon Cheng) for her own safety as the police believed her life was “under threat”. Teresa Kok and RPK remained in detention a little longer and then released.

Surely these cases do not make a good argument justify the Courts hiding behind the Minister’s decision and not subjecting his exercise of discretion and judgment to judicial review.

Even the present Minister of Home Affairs was caught off guard when he commented to reporters of his regrets regarding the actions of his predecessor’s judgment with regard the ‘Allah’ issue and the ban of its use.

So can we leave the fate of a detainee deprived off legal counsel to the ‘good judgment’ of the Minister in charge or the ‘professionalism’ of investigators and security apparatus after the Teoh Beng Hock’s mysterious demise in MACC’s precincts or allegations of torture by Tharmendran accused of stealing jet engines which allegations appear convincing in that he now has one witness and earlier preferred to go back to remand in Sungai buloh than to risk being abducted?

Cumulatively, if you look at the history of the original intent of ISA in my preceding posting and then its track record in this one, what is there to defend in respect of the perpetuation of ISA in its present draconian form with its application discredited and ridiculed?

Unless one wants to retain but amend ISA to remove abuses of power above outlined.

Ramasamy concluded, “The only way to remove the ISA is to remove the BN from power”. This assumes if Pakatan Rakyat (PR) wins power it will repeal the ISA.

However has PR in any of its manifestos made explicit its commitment to the rakyat to repeal the ISA in this respect?