OCT 1 — Let me start by quoting Saint Augustine, who said :
“In the absence of justice, what is sovereignty but organised robbery?”
What distinguishes a modern democracy from totalitarianism, dictatorship or the olden day absolutist rule — whether monarchical or feudalist driven , or both — is the fact that the former observes the due process of the law in its administration of justice. In fact, it observes the law in every single aspect of administration.
A modern democracy also ensures that power is not centred upon a tiny little head like that of a feudal king, or a dictator, or someone who had the most number of sorcerers waving their little black wands to conjure magical solutions to every stately problem. While the system vests the power to rule with the Executive, it also empowers the Parliament to make laws in order to define the limits and boundaries of the power to rule.
However, the system recognises that the Executives as well as the Parliament consist of human beings who, of course, are possessed with normal mortal frailties such as greed, stupidity, irrationality, unreasonableness and even malice. The system therefore builds an internal safety mechanism.
When power is exercised wrongly, improperly, or irregularly, the aggrieved party could question such exercise of power in the Courts. The judiciary — a fully independent judiciary, if I might add — is the safety mechanism.
The above is about as basic a statement about the doctrine of separation of powers in a democratic system as I can make. I can’t make it any simpler. For any reasonable man — especially a so-called leader — to not understand this concept is surely a cause for concern.
Now, let’s go to the crux of the matter, namely the Internal Security Act. What is so objectionable about it? What is it that I find repugnant about it? What?
Let me put it in a very simple form. In the form of a story. From our folklore.
In Sejarah Melayu and Hikayat Hang Tuah, don’t we all know what the Sultan did when he was told that Hang Tuah was having fun with one of the Sultan’s concubines? The Sultan quickly sentenced him to death and asked the Bendahara to execute him. That was it. No investigation. No trial. No defence. Hang Tuah wasn’t even there.
The ISA is just like that. It is the Executive having assumed the mantle of complainant, investigator, prosecutor, jury, judge and executioners. And to cap it all up, because of an amendment in our Constitution and the ISA itself, the power of our Court to review the Executive’s exercise of this enormous power is restricted to the point of non-existence.
That is, in a nutshell, what I find objectionable and repugnant about the ISA. It brings us all back to the 15th century. It demolishes fair play. It redefines justice. It rearranges the social contract — and I am talking about the real social contract, not the imagined ones — by which citizens agree to be a part of the State and surrender some of their rights in exchange for societal order and benefits.
Security of the State is, of course, the Executive’s responsibility. But security cannot be achieved at the expense of freedom and liberty of the subject. Freedom and liberty cannot be deprived without due process of the law. And due process of the law means the subject must be charged and proven to be guilty of an offence worthy of the deprivation of his or her freedom and liberty. To this I must add — as I have said before — freedom and liberty is the cause of democracy rather than the other way round. How can democracy then be used as a tool to deprive freedom and democracy without due process?
Then, there is this tendency to abuse this monstrous power. Consider this.
Solehan Abdul Ghafar; Alias Ngah; Zainun Ismail @ Cikgu Nan; Ahmad Posi Daman; Mohamed Lothfi Ariffin; Nik Adli Nik Abdul Aziz (Tok Guru Nik Aziz’s son); and Muhammd Zulkifli Mohamad Zakaria.
Who are they? What do they have in common? They are all suspected members of Kumpulan Militan Malaysia (KMM). And, coincidentally, they are also PAS members. All were detained under the ISA. And not a single one was ever charged in Court. No proof of whatsoever nature was proffered against them for what they have allegedly done.
That they belonged to an opposition party invites speculation and suspicion of political motives. Rightly or wrongly. And the failure to charge them or show any proof is a sign of absolutism mentality. We all know what happened during Operasi Lalang. Some people from the ruling parties were, of course, not arrested.
And how about these people?
Loo Pei Tu; Amir Hussain; Tan Choon Chin; Sundaraj Vijay; Khadijah Ahmad; Ho Chee Mun; Abd Rahim Jaafar; San Khaing and others. These are people alleged to have forged documents, presumably immigration documents.
Kamarul Fahmi Yassin and Nasib Abdullah were arrested under the ISA for allegedly spreading rumours by text messages (sms).
Lai Kin Choy; Lai Kee Yew; Tan Kok Seng; Yong Wai Chin; Ng See Hoo; Law Meng Keong; Tan Cheng Kiat; Lai Thin Foo; Choo Tuon Loi and others. These people were arrested under the ISA and some were detained for currency counterfeiting.
The fact that we have to resort to the ISA for the above offences is almost laughable, if not for the seriousness of the transgression against freedom and liberty perpetuated against the above named and many others.
I have stated before that Hilmi Noor was arrested under the ISA for allegedly converting to Christianity and, by doing so, he was accused of “disrupting the Malay culture by being a Christian”!
Let’s face it. The ISA is a tool which encourages inefficiency and probably even laziness. With the advent of intelligent technological back up, we have just ourselves to blame if we are not even able to counter these offences without transgressing the people’s freedom and liberty.
What about the famous process of rehabilitation at Kamunting, you may ask? That is, with respect, a fallacy. As and when the minister feels that certain detainees present no more threats to the security of the country, the minister releases them. They are rehabilitated.
If so, may I ask why there are restrictions on their movements, what they say, to whom and the likes? Under what purview are they constrained as such if they are no more a threat to the nation’s security? If their freedom needs to be curtailed under the ISA despite their release, aren’t they therefore still a threat to the security of this nation? This is like the proverbial cat chasing after its tail.
Then there is this argument that even the United Kingdom and the United States are doing it. Well, firstly, two wrongs do not make one right. Pure and simple.
Secondly, if we use the UK and the US to justify what we are doing, then why don’t we do what they do in all its entirety? Why don’t we scrap that illegal assembly law and permit public rally just as in the UK and the US?
Why don’t we stop moral policing just as the UK and the US? Or what about caning some women for drinking a mug of beer? How about censorship? Why stop at preventive detention? While we are at it, why don’t we legalise gay marriages as well?
Thirdly, how many opposition members have the UK and US government detained at Guantanamo Bay? How many journalists? How many academicians? How many activists?
Fourthly, do they really have a law which allows preventive detention indefinitely and without judicial review? Our ISA is not comparable to the Patriot Act as well as the Terrorism Act. I have written about it here.
There is also an argument that our Court process is slow. If there is no ISA, the acts which would be done by these threats to national security would have been done before they could be convicted.
This defies logic. Will we shoot all rapists and murderers because our Court process is slow for fear that they might commit further rapes and murders before they are convicted? And since when have we become unable to speed up things in our Courts as and when we want it?
And since does one bypass a system just because that system is imperfect? Does it not lie with us to make the system work? To make the system better and more efficient? Do we admit that we are failures and therefore we have to resort to short cuts?
How about racial sentiments? Yes, if left unchecked, these racists may just cause another May 13. For sure. But are we saying the ISA is the answer to racism? Not education? Not a change or changes in discriminatory policies and education blue prints? Not a more realistic display of racial and religious understanding and acceptance? How about our leaders showing the way to racial and multi-faiths harmony first?
Preventive detention laws go against the crux of a democratic government and civil society. Our freedom and liberty establishes democracy. Would we want democracy then to swallow our freedom and liberty without scant regard to the law which WE establish? I say a big NO.
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Crutches come in varied shapes and sizes. OSA seems like one manufactured from titanium!