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.