Author of the ISA - review effects of his works

Atobe SG

Extract from the Malaysian The New Straits Times

The Sunday Interview: The ISA its all in the preamble
30 Jul 2006
SANTHA OORJITHAM

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As a young British legal draftsman, Reginald Hugh Hickling helped craft Malayas Federal Constitution. The new nations Commissioner of Law Revision distilled Emergency regulations into the Internal Security Act. And through the 1970s and the 1980s, he taught law students in Malaysia, Singapore and Britain. Today, on a visit to Kuala Lumpur on the eve of his 86th birthday, and as Malaysia prepares to enter its 50th year, Hickling reflects on how the countrys legal system has evolved.Some of his fears about the Internal Security Act have come true, but he tells SANTHA OORJITHAM, he would not have done things differently.

Q: You assisted then Attorney-General, Tom Brodie, in drafting the Federal Constitution. What did you have in mind?

A: The Reid Commission took most of their draft from the Indian Constitution a very good Constitution.

We made a few changes but basically followed the Reid Commissions draft and the Indian Constitution, except for Article 3 (declaring Islam to be the religion of the Federation).

Q: When you drafted the ISA in 1960, wasnt it principally to combat the communist insurgency?

A: We have had emergency legislation in force since 1948. In 1960, when Tun Abdul Razak Hussein wanted to wind up the Emergency, I prepared a draft of the Internal Security Bill which represented everything of the Emergency regulations.

Then I said to Tun Razak: "We cant declare the Emergency is over, and still detain people." He said to me: "Would you let these people go?"

There were at that time about 200 to 300 communist terrorists (in detention). I said: "No, but a time might come when a different minister might take a very different view." Which is what happened, of course.

Q: In 1987, the Supreme Court (Theresa Lim Chin Chin and Ors. versus Inspector-General of Police) took the view that "from the wording of the provision(s) of the Act (the ISA), there is nothing to show that it is restricted to communist activities". You said this interpretation was "more restrictive of freedom and indifferent to the Constitution".

A: It is all provided by the preamble, but the preamble has not been adequately considered.

Q: So the ISA was supposed to be used in an emergency only, and to be temporary?

A: It was designed to be more limited in its scope than it is at the moment. They have interpreted it rather widely (in that case).

Q: You also wrote in 1989: "I could not imagine then that the time would come when the power of detention, carefully and deliberately interlocked with Article 149 of the Constitution, would be used against political opponents, welfare workers and others dedicated to non-violent, peaceful activities." Looking back, would you have worded the ISA differently?

A: No. I dont think so, but if people wont pay attention to the wording, what can you do about it.

"Organised violence" is the key to this preamble, but a lot of people were being arrested who had nothing to do with organised violence at all.

Q: Do you regret drafting the ISA the way you did?

A: Well, I have to see things at any time from the point I am writing about, and I cant always see it in a subsequent setting.

Ive been very nervous about the abuse of powers, and I am anxious to hold on to the preamble to the ISA because it is only valid if the Constitution (Article 149) gives it force.

The real trouble in Malaysia is not the ISA, but the Printing Presses & Publications Act. That Act has been amended so the minister can take away a newspaper licence at any time, and you cant go for judicial review.

Q: When you drafted it, the ISA allowed for judicial review. Now the Home Minister has the only say, but a detainee can make representations to the Advisory Board, or he can apply to court for judicial review via certiorari or habeas corpus.

A: I would want judicial review at all times and its been ousted, as I said, for newspaper licences for a start.

Q: Is it time for a review of the ISA? What about Articles 149 and 150 of the Federal Constitution, which permit infringement of human rights during emergencies, but only where necessary?

A: With terrorism around in the world, I dont think its a good time.

Q: In 1987, you called for a review of the Constitution. Do you still think that is needed?

A: No. It is not a good time. You have worldwide terrorism, which acts as an inhibition against changing laws.

You really want to tighten laws up rather than to relax them.

lionnoisy SG

sg see no reason to review ISA for the time being.

but as Minister for Home Affairs said in paraliment that it is up
to MP to review

CRIMINAL LAW (TEMPORARY PROVISIONS) ACT,(CHAPTER 67)

Short title
1. (1) This Act may be cited as the Criminal Law (Temporary Provisions) Act.

(2) This Act shall continue in force for a period of 5 years from 21st October 2004.

2.This Act is only valid 5 years and paraliment have to revalidate
it if MP think fit the law is suitable for Sg.

The 5 yr validity period force all MP knows this Act .

pikamaster SG

Originally posted by lionnoisy:
sg see no reason to review ISA for the time being.

but as Minister for Home Affairs said in paraliment that it is up
to MP to review

[b]CRIMINAL LAW (TEMPORARY PROVISIONS) ACT,(CHAPTER 67)

2.This Act is only valid 5 years and paraliment have to revalidate
it if MP think fit the law is suitable for Sg.

The 5 yr validity period force all MP knows this Act .[/b]

and you are trying to prove what? Hickling's naivete compared to the all-knowing MIW??

iveco SG

Worldwide terrorism only serves the Fascist interests. Hard-won civil liberties are being eroded by the day.

But Democracy is the best way to defeat terrorism, says UN. The real cause of terrorist activities is jealousy of the freedom the Westerners have.

Atobe SG

How different is Singapore's constitutional position from that of the Malaysian Constitution, when at independence Singapore was bestowed with an identical Constitutional piece from the Malaysian copy - which itself was drafted according to the Indian Constitution ?

The weaknesses in the abusive execution of the ISA in Malaysia seems to be followed too in Singapore.

REPORT ON HUMAN RIGHTS IN MALAYSIA

(Prepared by Prof Johan Saravanamuttu)

OVERVIEW

Human Rights Practice -- Regression rather than Progression

Malaysia's human rights practice, by way of national laws and legal instruments, has steadily slid downhill since independence in 1957. This is due to several major political developments since independence and particularly because of the actions of the government led by Dr. Mahathir Mohamad since 1981. The only positive actions on the part of the state in recent years has been the endorsement of several international human rights conventions and the setting up of a national commission on human rights. These developments are summarized below.

The actions on the part of the state in weakening human rights practice in the country can be stated as follows:

The steady erosion of constitutional provisions for human rights and fundamental liberties such as the right to life and liberty of the person, protection against slavery forced labor, equality before the law, freedom of movement, speech, expression, assembly and association, including the right to strike and take industrial action (Articles 5, 6, 8, 9, 10(1)(a) (b) (c), freedom of religion, right to education and property (Articles 11, 12, 13). The most cynical developments occurred in the Mahathir period when the principle of judicial review (Article 121) was virtually debunked after the sacking of the Lord President and two Supreme Court judges in 1988 (See box).

Elimination of the right to seek the writ of habeas corpus, whereby preventive detention cannot be challenged in court, since the 1988/89 amendments to the Internal Security Act (1960).

The increasing centralization of the powers of government in the hands of the executive branch and the steady debunking of the principle of the separation of powers of the legislature and judiciary as provided for in the 1957 Constitution. This was accomplished along with the steady removal of checks and balances in the system via various constitutional procedures and amendments aimed at reducing local state power, abolition of elected local governments and eroding of the symbolic as well as the legal role of the Rulers. (Lee, 1995)

Table 1 : Legal Restrictions on Human Liberties and Freedom

National laws and legal instruments pertaining to human rights are as follows:

National laws and national legal instruments: constitutional guarantees cited above and legal restrictions on them include the following: Banishment Act (1948 ), Immigration Acts (1959, 1963 ), Sedition Act (1948, 1971 ), Internal Security Act (1960, 1988, 1989 ), Public Order (Preservation) Ordinance (1958 ), Police Act (1967, 1988 ), Official Secrets Act (1972, 1986 ), Essential (Security Cases) Amendments Regulations (1975 ), Trade Unions Act (1959, 1980, 1989 ), Societies Act (1966, 1981 ) University and University Colleges Act (1971, 1975 ), Essential (Strikes and Industrial Actions) Regulations (1967, 1971, 1975 ), Amendments to Article 121 (1988 ) Thus, over the years, the existing provisions for human rights have been progressively whittled down by a battery of acts and amendments (See Table 1).

Ratification of international human rights instruments: Among the major international instruments for human rights, Malaysia has only ratified two major ones as follows: International Covenant for Civil and Political Rights - ICCPR (no) International Covenant for Economic, Social and Cultural Rights -ICESCR (no) Convention for the Elimination of All Forms of Discrimination Against Women - CEDAW (yes), Convention for the Elimination of All Forms of Racial Discrimination - CERD (no) Convention on the Rights of the Child - CHILD (yes), Convention against Torture and other Cruel Inhumane or Degrading Treatment or Punishment - CAT (no). This record compares rather poorly with other Southeast Asian states, which admittedly are all generally laggard in acceding to human rights covenants and conventions.
The setting up of a National Commission of Human Rights through an act passed by parliament, 1999: While the government has gone ahead with the setting of the human rights commission, this move has occurred amidst the demands of 34 NGOs for public consultation on the draft bill and assurance of the transparency, independence and the proper implementation of its mandate. (See pp. 29-31 below).

On the positive side of developments, there has been important progress made on human rights practice by the non-state sector of Malaysia. A significant event was the coming together of some 50 NGOs in 1993, representing human rights organizations, trade unions, consumer associations, women's groups, environmental organizations, academic bodies and organizations of people with disabilities, to endorse a Malaysian Human Rights Charter (See Appendix 2). Below are some of the most important milestones relating to the progress of human rights practice based on initiatives in the non-state sector:

ALIRAN, a "reform movement dedicated to justice, freedom and solidarity" is formed in Penang in 1977.

Malaysian Bar Council establishes a Human Rights Committee, 1970s.

Democratic Action Party Convention on Human Rights is opened by Malaysia's first Prime Minister, Tunku Abdul Rahman, 1985.

SUARAM, first national-level human rights organization is formed in 1989.

HAKAM, Malaysian national human rights organization is formed in 1991.

Adoption of "The Malaysian Human Rights Charter" by some 50 NGOS in 1993.

BUDI, the first national-level election watch organization is formed in 1999.

HAKAM, SUARAM and ERA Consumer and Working Group for an ASEAN Human
Rights Mechanism, sponsors a Forum on the National Human Rights Commission, 3-4 July 1999.

We may conclude this overview by referring to SUARAM's 1999 report on human rights practice in Malaysia: According to the human rights organization, to date, Malaysia has yet to ratify arguably the three most significant human rights instruments on civil and political rights pertaining to civil and political rights (ICCPR), economic, social and cultural rights (ICESCR), racial discrimination (CERD) and torture, cruel and inhuman treatment (CAT).

The government has instead lamely advanced the so-called "Asian values" position on human rights by arguing that it considers many of the current declarations, covenants and convention on human rights to be of Western origin.

continued below

Atobe SG

continued from above:

On the positive side the Malaysian government is currently party to six instruments, five of which it has ratified, some with reservations as follows:

Supplementary Convention on the Abolition of Slavery, the Slave Trade and Institutions and Practices Similar to Slavery. Adopted in Geneva on September 7, 1956, ratified on November 18, 1957.
Convention on the Prevention and Punishment of the Crime of Genocide. Adopted by the General Assembly of the United Nations on December 9, 1948, ratified on December 20, 1994.
Convention on the Elimination of all Forms of Discrimination against Women (with reservations). Adopted by the General Assembly of the United Nations on December 18, 1979, ratified on July 5, 1995.
Convention on the Rights of the Child (with several reservations, in particular to Article 13 which provides the right to freedom of expression). Adopted by the General Assembly of the United Nations on November 20, 1989, ratified on February 17, 1995.
Convention on the Nationality of Married Women (with reservations). Adopted at New York on February 1957, ratified on February 1959.
(Rachagan and Tikamdas, 1999 and Report of UN Special Rapporteur, 199 Cool .

Malaysia's reservations with respect to CEDAW revolved around the practice of Syariah law as practiced in the country, for example with respect to the division of inherited property and the appointment of clerics as Syariah court judges. It withdrew some earlier objection on January 28, 1998. Reservations on CHILD pertain to conformity with national laws and policies of the government.

Ratification of these conventions marks an explicit acceptance by Malaysia that it does share with the global community common standards and values on human rights regardless of cultural and geographical origins. Furthermore, following upon the 1993 Vienna Conference on Human Rights, Malaysia advanced the principle of the indivisibility and interdependence of all human rights thereby also purportedly supported the Vienna declaration that:

"All human rights are universal, indivisible and interdependent and interrelated. The international community must treat human rights globally in a fair and equal manner, on the same footing, and with the same emphasis."

On the negative side, the Malaysian government has shown little evidence of honoring this principle of indivisibility. It continues the use emergency laws in non-emergency conditions, the practice of detention without trial, perpetrating deaths and abuses in custody, condoning police violence and abuse; it implements the death penalty, continues to violate the basic freedoms of expression, association and peaceful assembly, condoning an unfair and unfree electoral process, and government policies and actions continue to reinforce an extreme form of dominance of the executive over the legislature and the judiciary.

The following are the purported views from two earlier Malaysian Prime Ministers:

Views of Two Former Prime Ministers on the ISA

"The ISA introduced in 1960 was designed and meant to be used solely against the communists...My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent",
Tunku Abdul Rahman, First Prime Minister.

"The ISA is a measure aimed at preventing the resurgence of the earlier communist threat to the nation... During my term of office as Prime Minister, I made every effort to ensure that pledges of my predecessors, that powers under the ISA would not be misused to curb lawful political opposition and democratic citizen activity, were respected."
Tun Hussein Onn, Third Prime Minister.

These statements were made in affidavits at the habeas corpus hearing of Dr. Chandra Muzaffar, in 1987.

From the same opening referenced article, the following is a commentary concerning Detention without trial as allowed by the Internal Security Act :

Detention without Trial under the Internal Security Act

The ISA was enacted under Article 149 of the Malaysian Constitution, which allows for a law so enacted to be legal even if it contravenes various other constitutional provisions, which guarantee liberty of the subject under Article 5. Under Section 73 of the ISA, the police may detain anyone for interrogation for 60 days on the suspicion that "he or she acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof."

It has become part of activist folklore that the 60 days could be the worst days on one's life. Treatment could vary from actual physical torture to psychological humiliation and the denial of reading materials. At the end of the 60 days, further detention of extendable two-year terms have to be authorized by the Minister of Home Affairs, as provide for in Section 8 of the Act. The charges against the detainee are then specified in a Detention Order (DO). Even if detainee takes no legal recourse, he or she comes up for review every six months by an Advisory Board to the Home Minster.

In practice the work of the Board has become farcical and the experience of ex-detainees shows a reversing of the legal process whereby a political decision usually determines a release, which is then rubber stamped by the Board. The Board may also recommend unconditional or conditional releases. Conditional releases can come in the form of a Restricted Order (RO) which severely restricts freedom of movement, including reporting one's activities and movements to the police on a monthly basis.

The ISA has been amended 18 times, giving it more bite each time. In theory, ISA detention orders could be challenged in court through habeas corpus proceedings and several such cases have been heard but such action has virtually become an exercise in futility after the 1988 and 1989 amendments which make it incumbent on judges to accept the absolute discretion of the Home Minister in determining who is a security threat.

ARENA, 1992: 21-22.

Atobe SG

The following is an extract from an on-line access to the Singapore Constitution

Singapore - Constitution
Part XII Special Powers Against Subversion and Emergency Powers

Article 149 Legislation Against Subversion

(1) If an Act recites that action has been taken or threatened by any substantial body of persons, whether inside or outside Singapore

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property;

(b) to excite disaffection against the President or the Government;

(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence;

(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or

(e) which is prejudicial to the security of Singapore, any provision of that law designed to stop or prevent that action or any amendment to that law or any provision in any law enacted under clause (3) is valid notwithstanding that it is inconsistent with Article 9, 11, 12, 13 or 14, or would, apart from this article, be outside the legislative power of Parliament.

(2) A law containing such a recital as is mentioned in clause (1) shall, if not sooner repealed, cease to have effect if a resolution is passed by Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this article.

(3) If, in respect of any proceedings whether instituted before or after the commencement of this clause, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 22c shall invalidate any law enacted pursuant to this clause.

From the original condition of organised acts of violence, the cause for ISA to be applied has been broadened to include - (a) the excitement of disaffection the President or the Government, (b) or any alternative acts within the law or otherwise - which current laws prevent - even if such current laws contradict existing provisions in the Constitution.

TooFree SG

Q: Is it time for a review of the ISA? What about Articles 149 and 150 of the Federal Constitution, which permit infringement of human rights during emergencies, but only where necessary?

A: With terrorism around in the world, I dont think its a good time.

Q: In 1987, you called for a review of the Constitution. Do you still think that is needed?

A: No. It is not a good time. You have worldwide terrorism, which acts as an inhibition against changing laws.

You really want to tighten laws up rather than to relax them.

Though "organised violence" is the essence of the preamble. But Mr Reginald Hugh Hickling clearly did not take into account or having show predictment that the rise of terrorism in the 21st century is a nation threat when the ISA was drafted at that time.

However, he did advise against reviewing the ISA at the later time when terrorism has risen prominence as seen in the interview dialogue quoted above.

Neutral

Atobe SG

"Tighten laws up" does not necessarily mean more laws to be brought up, so as to widen the scope of the ISA applications.

The "Laws being tightened up" could also mean that the laws should be made more specific, so as to face the current 21st Century threats of Global Terrorism.

This explanation would have addressed Mr Hickling's reaction of the ISA being used against civilized political opponents in a democracy.