Rabu, 13 Ogos 2008

Majlis Peguam anti ISA

The Internal Security Act 1960: A throwback to the era of tyranny PDF Print E-mail
Contributed by Sunil Lopez a/l Ceasar Lopez
Thursday, 14 February 2008 08:59pm

ISASettling disputes among individuals and ascertaining the guilt of a member of society who is charged with committing an offence by a tribunal of law has been the hallmark of a civilised and democratic society for some time now.

In feudal times and before, the power to decide on a dispute and to mete out punishment lay absolutely in the hands of one person or with a privileged few. It was a power that was used, often I suspect, without question and arbitrarily.

The majority of legal systems which exist in this day and age are not without flaws but as the essential feature of most of these systems are public trials presided over by persons charged with upholding the rule of law and dispensation of justice, it must, in my view, be accepted that anything else would be a poor substitute.

John Emerich Edward Dalberg Acton, otherwise known as Lord Acton, once wrote in a letter to Bishop Mandell Creighton in 1887 that “Power tends to corrupt, and absolute power corrupts absolutely.”

The validity of that statement is beyond reproach and I would think that no right thinking member of society would dare disagree, at least not in broad daylight.

It therefore seems inconceivable to me that even in these ‘enlightened times’, there exists a patch of the past, a throwback, if you will, to the bygone era of tyrannical monarchs where the word of one is sufficient to affix guilt to a human being. Inconceivable it may be but the continued existence of legislation like the Internal Security Act 1960 (I.S.A.) is such a ‘patch’ and an unjust one at that.

The I.S.A. conveys into the hands of one person, the power to detain without trial and also it appears, without question. The existence of such power would perhaps be excusable if that one person had the biblical qualities of Nabi Sulaiman or King Solomon as he is otherwise known, but alas we don’t run into many kings of that nature these days.

Some may reason that preventive detention is a necessary evil, especially in these dark times of terrorism but the upshot is that the liberty of individuals takes a backseat, the years of legal evolution grind to a halt and the trek towards authoritarianism begins anew.

The I.S.A. is a common dirty word [sic] among Malaysians who even consider voicing their dissent against government policies and decisions. It is an abbreviation which strikes fear and stifles the development of a just and equitable society.

Tunku Abdul Rahman, when faced with criticism for the enactment of the I.S.A. said that it will "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 I.S.A would never be used to stifle legitimate opposition and silence lawful dissent.”

Even at its inception, it was recognised that the I.S.A. could be abused and that it is a powerful tool in the hands of the government of the day.

Today, the spectre of the unchallenged use of the I.S.A continues to haunt the citizens of this nation.

The time is long overdue for the abolishment of this draconian and archaic legislation.

It is with that in mind that a motion calling for the abolishment of the I.S.A. has been submitted for consideration at the Kuala Lumpur Bar’s 16th Annual General Meeting on February 21, 2008.


MOTION TO ABOLISH THE INTERNAL SECURITY ACT 1960

RECOGNISING that the detention of persons without trial as provided for by the Internal Security Act 1960, violates principles of the Rule of Law and Human Rights.;

CONDEMNING the Internal Security Act 1960 as legislation that is draconian and archaic and prone to abuse;

REAFFIRMING the Malaysian Bar’s Motion dated 27 November 1987, calling for the abolishment of the Internal Security Act 1960.

CONDEMNING the recent detention without trial on 13 December 2007 of 4 members of the Malaysian Bar, in particular, 2 members of the Kuala Lumpur Bar, namely Uthayakumar Ponnusamy and Manoharan Malayalam under the Internal Security Act 1960.

IT IS HEREBY RESOLVED

1. That the Kuala Lumpur Bar calls on the Government of Malaysia to immediately repeal the Internal Security Act 1960 and to adopt the recommendations of the Human Rights Commission of Malaysia (SUHAKAM) contained in their Review of the Internal Security Act 1960 report of 2003; and

2. That the Kuala Lumpur Bar calls for all the current detainees under the Internal Security Act, to, be released immediately and where appropriate, be charged in an open and public trial.

Dated : 13th day of February, 2008

Proposer : Sunil Lopez
Seconders : Lim Fang Say
Amer Hamzah Arshad

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Comments (7)Add Comment
Timely motion on abolishing the ISA
written by Dipendra A/L Harshad Rai, 15 February, 2008 at 12:42 am

The motion is indeed timely and I congratulate Sunil, Robin Lim and Amer for putting this up. Despite the fact that a motion has been passed some 20 years ago, it does not mean that we (this would include 2 generations of new lawyers)cannot revisit and pass another motion to record the sentiments of the lawyers.

As for whether the BC should be taking the lead, I am sure they are. But to me, I cannot see why state bars cannot pass similar resolutions. It would be a tremendous achievement is all the state bars in their respective AGM's pass a similar motion to that of the KL Bar's and this would culminate in the passing of the BC's own motion on this matter.

Its also time that we stopped leaving everything nterest or to the BC to act upon (national interest or otherwise). It seems an easier thing to do but if we want to set an example and indeed if we believe that we all have a role to play in ensuring that the rule of law is continuously upheld, then its time to think out of the box once in a while.

Many thanks
Dipendra A/L Harshad Rai

Let us pass this motion
written by Edmund Bon, 15 February, 2008 at 10:23 am

Concise and succinct, I think it captures precisely the sentiments of members. There should be a healthy debate at the AGM on the motion, and as many members should turn up for it.

Edmund Bon

No Detention Without Trial !
written by Richard Wee Thiam Seng, 15 February, 2008 at 11:44 am

The article exemplifies the feelings of some lawyers about the recent arrests of lawyers under ISA.

There are provisions in Penal Code which the Prosecution can use to charge Uthaya and co, and ISA is definitely not the appropriate provision.

At a time where we are thinking of building a 2nd bridge in Penang; recently send some chap to space for a few days and even had the audacity to criticise USA for detaining alleged terrorists at Guantanamo Bay without trial, yet we are still arresting people under ISA here.

Richard Wee Thiam Seng

Members act when Bar Council procrastinates.....
written by Charles Hector, 15 February, 2008 at 11:45 am

Good job Sunil - you really should write more.

By the way on the motion, I believe the SUHAKAM does not take the position to repeal the ISA and end DETENTION WITHOUT TRIAL.

Therefore adopting and/or supporting the SUHAKAM's recommendations is an abdication of the Bar's position for total repeal and to end all Detention Without Trial.

Of course, it is good if the government follow the SUHAKAM recommendations which will be a step forward in improving matters and conditions BUT we cannot and should not be seen as supporting these recommendations for our call is clear and simple - REPEAL. (Not reduce the number of days one can be detained, etc...or improve the detention cell condition...)

Consider amending your motion...

Look forward to reading more stuff from you.

In solidarity,

Charles Hector

*** Why don't the KLBC, State Bar Committees and the Bar Council at least put up a BANNER/ADVERT calling for the release and for the Repeal of the ISA, etc.... (It is so simple....)

Charles Hector

SUHAKAM's recommendations
written by Edmund Bon, 15 February, 2008 at 02:45 pm

Dear Hector

One needs to be fair, and to read SUHAKAM’s report (2003) carefully. It has I think in good faith taken a very nuanced approach in an attempt to have the Government accept its recommendations. This is however different from saying that SUHAKAM has compromised the human rights position.

If one looks at SUHAKAM's recommendations, it clearly recommends a two-pronged approach:

(1) The ultimate goal is that the ISA be repealed, and in its place, a new comprehensive security legislation which clearly defines offences relating to national security. Under this legislation, more safeguards will be introduced (e.g. 7-day periods of detention, High Court supervision, rights of detainee similarly accorded by ordinary criminal process etc) although the period of detention pending investigations will be up to a maximum of 29 days. The legislation will also have a sunset clause of 1 year, and Parliament needs to renew the legislation annually should it be required.

(2) To enact this new legislation will take time, and in the interim various amendments to the ISA will have to be made (e.g. judicial review to be allowed, 2-year period under section 8 be reduced to 3 months, 60-day period under section 73 be reduced to 14 days etc). Additionally, the ISA will be subject to a sunset clause of 1 year.

Given the above which I believe was to make the move to repeal the ISA politically palatable to the Government, I do not see much to commend in amending the motion.

Edmund Bon

There can be no compromise
written by Charles Hector, 16 February, 2008 at 09:58 pm

"...to make the move to repeal the ISA politically palatable to the Government..." - I do not think that we can support any such recommendations by SUHAKAM.

On the point of Detention Without Trial - there can be no compromise on our part. We are against it....period. We want it repealed.

It is wrong to even suggest that we are agreeable to a "better ISA" which provides for a shorter period of detention, etc.. Detention Without Trial is wrong and REPEAL NOW is our call.

This is fundamental. This is a matter of principle...

SUHAKAM made those recommendations - if we do not want to CONDEMN or OPPOSE that recommendation - then JUST BE SILENT - but do not go out there and say that you SUPPORT those SUHAKAM recommendations.

In solidarity,

Charles Hector

Please read the SUHAKAM ISA report
written by Edmund Bon, 18 February, 2008 at 06:03 pm

Dear Hector

It would be most helpful if you read the SUHAKAM report carefully again. Your comments to my mind appear to misrepresent the Commission's report.

Edmund Bon


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