Malaysia Abolishes the ISA and Eyes on Singapore


With the 10th anniversary of 9/11 and the death of Osama bin Laden as the (spurious) symbolic end of Al Qaeda-inspired terrorism, and naturally with the Malaysian elections coming soon, PM Najib has decided to abolish the ISA. However, he is going to introduce new laws to replace the ISA. So Malaysia has thrown the ISA out, while keeping its key functions, presumably preventive detention being one of them.

What is the ISA really?

There is a lot of political baggage behind it rightly or wrongly by bleeding heart activists and opportunistic politicians particularly since the infamous 1987 Marxist Conspiracy. The ISA is a law, like any law, that can be abused, simple as that. Defamation laws are necessary in modern societies. But they can be abused. Public entertainment licences are useful to regulate performances. But they can be abused. Similarly, the ISA is a useful security tool to deal with real enemies of the state in terrorism, espionage or sabotage, but it can be abused.

There are lots of misconception that detention under the ISA is indefinite or there is “detention without trial”. The devil is in the details. In fact, detention is up to a maximum of 2 years, although the sentence can be renewed. There is a trial, not by open court but by an advisory board, or in fact, a tribunal since ISA cases are heard by a Supreme Court judge and 2 prominent citizens. Evidence is presented and those arrested have lawyers to defend them. Some of the JI members detained had criminal lawyer Subhas Anandan to defend them. The advisory board can choose to release those arrested and can make such recommendations to the President. Hence, the executive can call for the arrest of individuals but the tribunal and the president can overturn it. Nevertheless, to our public knowledge, no arrests by the ISD have been overruled by the advisory board.

Should Singapore follow Malaysia’s lead on in abolishing the ISA? The important issue is not whether the ISA is discarded or not. The important issue is whether there are special laws to secure Singapore, special laws to arrest those who plan to carry out terrorist attacks but fortunately have not carried it out yet.  The ISA’s main power not covered in the penal code is to arrest individuals before they commit a crime.

Thought crime as far as the cynics go. And that is a philosophical question. Is planning of a crime itself a crime as no crime has been carried out? At which point in the planning a crime has been committed, to permit preventive detention? Preventive detention under limited scenarios is arguably better than punitive detention since there are no victims. In crimes against the state e.g. terrorism, we should not wait for a bomb to explode and then arrest the terrorists. They should be arrested before they allow the bomb to explode.

The government is left with many options on what to do with the ISA after Malaysia’s bold and politically astute move, besides not doing anything now. One of them would be to reform the ISA, and retain the spirit of the law to protect people and property. The other option is Malaysia’s one. Be politically savvy and make the public contented by repealing the ISA, and with low fanfare introduce new specialised but equally tough laws to deal with terrorism, foreign sabotage and espionage. Old wine in new bottle, more or less.

There should be tough laws with preventive detention, closed door trials etc that are palatable to the public. The balance is hard to achieve but the path to it is reforming, not removing, the ISA.

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4 responses

  1. IMO, the issue is not so much as the law itself. After all ISA was actually introduced by the British to deal with the communist threat. I like to believe that the British used it under very very stringent control against abuse.

    The problem in Singapore was and is the potential for abuse. The fact is the legacy of its use by the PAP govt, esp. under LKY’s PMship has been one of unjustified and disgraceful abuse of its power against non-communist political opponents.

    The many ISA ex-ISA detainees some dead but many still with us, some in exile is proof of the abuse.

    That fault is therefore not the law itself but in the ones with the powers to abuse it against innocent people and for situations it has never been intended to be used against.

    The solution lies in revising the ISA to pare it down to being strictly confined to its intended purpose, ie, against terrorism, in present day context and NOTHING ELSE.

    There is also the parallel law of TEMP CRIMINAL DETENTION who must also be similarly changed to prevent abuse by govt. This law should be removed. Those days of rampant gangsterism for which the law is intended have long been over. In present day Singapore NO ONE should be held indefinitely for an alleged crime or criminal offence. The police must have the skill and capability to justify any continued detention of a suspect repeatedly before judges while investigation is being conducted.

    Similarly, the ISA’s use must be closely supervised by the judiciary. In relation to this, the current practice of the appointment of judges by the PM must be changed to ENSURE and REVERT to the original complete independence of the judiciary from any influences by the executive (the govt).

    September 16, 2011 at 10:37 pm

  2. chemgen

    You got it right. It does not matter what law they enact. It is the potential for abuse.

    “The solution lies in revising the ISA to pare it down to being strictly confined to its intended purpose, ie, against terrorism, in present day context and NOTHING ELSE.”

    And include espionage as well. If the ISA can be pared down to these 2 dangers, then the ISA should be retained as it remains relevant. Anyone who disagrees with these 2 dangers is astonishingly naive.

    On ex-ISA detainees as evidence of abuse. It depends. For those arrested in the 1960s and 1970s, communism and its ideals of revolution was an insidious blight globally. I would think that the ISA was true to its intention to protect people and property and don’t question abuse compared with the Marxist Conspiracy.

    That one is controversial – Malaysian communism was still around although dying. Regardless if those arrested were involved or not, they had to protest that they were innocent.

    September 17, 2011 at 3:27 pm

  3. Anon

    I quote what I think is the crux of your argument in favor of ISA “The important issue is whether there are special laws to secure Singapore, special laws to arrest those who plan to carry out terrorist attacks but fortunately have not carried it out yet. The ISA’s main power not covered in the penal code is to arrest individuals before they commit a crime.”

    There is a huge flaw in that a potential terrorist would be able to execute his plans as a matter of course, so we nip his thought crime in the bud. Reality is that the so call terrorist would have to procure weapons, bombs, contact accomplices, etc. At any time the authorities can intercept and gather evidence for an airtight prosecution. It’s call police work.

    ISA is a temptation for lax policing and abuse of power.

    September 23, 2011 at 12:57 pm

  4. chemgen

    Anon

    Correct in a way but do the current laws allow the arrest of people involved in conspiracy? I’m not sure and might be wrong but criminal laws are usually after the fact.

    For airtight prosecution, this is subjective and depends on who you ask. Even when those JI arrested under ISA had a top notch criminal lawyer defending them and still some segments of the public were unconvinced. The question of the relevance of the ISA or a similar law is public ignorance in favour or against it. Many see it is yes or no, rather than a yes depending on, or a no depending on. Such is the psyche of Singaporeans from CPF to HDB COV to car COE.

    September 26, 2011 at 12:26 pm

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