by Roger Tan
In the proposed laws to replace the ISA, the government must balance, and balance it well, the state’s duty to protect national security with a citizen’s cherished liberty and human right of access to courts.
I JUST turned half a century old yesterday. But the Internal Security Act, 1960 (ISA) is older still.
In fact, the original preventive detention provision was contained in Regulation 17 of the Emergency Regulations 1948 which allowed the chief secretary to detain, by order, any person for a period not exceeding one year. Interestingly, it was made notwithstanding Section 4 of the Emergency Regulations Ordinance of 1948 which stated that the British high commissioner could make any regulations he considered desirable in the public interest provided that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”
When the Emergency Regulations 1948 ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was transplanted into a new statute, called the ISA which came into force on August 1, 1960.
But the ISA is not the only preventive law in Malaysia. The other two laws are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (EO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA).
The EO, which came into force on May 16, 1969 after the May 13, 1969 riots, allowed the minister to detain without trial any person for up to two years in the interest of public order or in order to suppress violence or prevent crime. Currently, there are few hundreds of detainees placed under the EO.
On the other hand, the DDA, which came into force on May 30, 1985, allowed the minister to detain without trial any person involved in drug trafficking for up to two years.
The reason why these preventive laws still exist today and have not been invalidated by our courts is simply because they are permitted under Articles 149 and 150 of the Federal Constitution even though they are inconsistent with the fundamental liberties provisions stated in Articles 5, 9, 10 and 13 of the Constitution.
In this respect, Prime Minister Datuk Seri Najib Tun Razak should be commended for his bold move to repeal the ISA and the EO.