ISA- IS IT NECESSARY
ISA -A MORAL DILEMMA
The question of whether or not the ISA (Internal Security Act) is justified is a moot point. Detention without trials is common place throughout the world and central to the administration of criminal and international law. It is not without precedent or controversy. There are many aspects of the administration of law in many countries that appear to be either unconstitutional or at least a breach of accepted interpretations of civil liberty or ‘human rights’ laws.
For instance detention without trial occurs everyday without much controversy even where detention may be found not to be necessary. In such a situation individuals suffer deprivation of their personal liberties and suffer punishment through incarceration without being found guilty of having committed any offence punishable with a custodial sentence.
Bail for instance in the English legal system is a right and not a privilege. Yet in its practical implementation denial of bail is widely accepted by civilized communities everywhere to be justified and is condoned without much protest.
Yet it must be remembered that a person held in remand pending trial is merely held on suspicion of having committed an offence and not for the actual guilt of having committed an offence.
Lorraine Osman in the Malaysian British context is a case in point. A person held in incarceration for a longer period than most prisoners found guilty of a most heinous crimes was held in custody prior to and during the course of investigation and subsequently trial for offence he was charged. Lorraine Osman was the longest serving remand prisoner in British history. There were no human rights applications on the public record to demand his release whilst he fought his case as an innocent man yet to be proven guilty. But it is argued there were reasons for his detention without bail. He was a flight risk and the prosecution was able to convince the court so.
WHY THE ISA
The ISA is a preventative tool of justice. It is a form of pre emptive action to prevent the occurrence of a foreseeable and preventable event of usually a criminal nature; or to detain a suspected subversive or to prevent them from absconding before proper inquiry can be made of their circumstances or evidence gathered against them on serious criminal or other charge against the state; More importantly and often the reason cited for ISA type detentions is to protect the interests of public security or the interests of the state. Its application in such instances where the security of the state is concerned is the lesser of two evils one might say. Often preventative detention is applied by the executive on the basis of information provided by intelligence apparatus to the executive to act upon and is an exception to the constitutional principle and legal rule of innocent till proven guilty.
In each country the character and historic background of that country, the make up of its people, threats both real and potential perceived and imagined, conflict, disruption to government and violence all have to be considered by the executive in administering the ISA or its equivalent. Of course arguments against its implementation is often based on a political morality and not proper legal reasoning. But not always.
In Northern Ireland for instance, internment and detention without trial lasted at least three and half decades in its most brutal and psychologically oppressive form. Internment there consisted of detention of prisoners accused of or suspected of collaboration, involvement, support of or active participation in acts of insurgency against the state. They would be incarcerated in rooms without windows with floodlights turned on 24 hours of each day of their detention accompanied by loud music, noise and other distractions to disturb sleep patterns and to disorient suspects. The justification for what was fundamentally inhumane and degrading treatment or torture in these circumstances was often justified by amendments to the legislation that otherwise protected individuals from such treatment.
WHY DETENTION WITHOUT TRIAL OR APPARENT ACCOUNTABILITY
Detention under these circumstances involved the deprivation of the liberties of individuals. In many cases the actual facts upon which they were detained were not available to the public or laid on the public record for the danger such revelations would result in.
Critically the revelation of any intelligence gathered in justifying the detention, if revealed to the public, would have compromised internal security further and more importantly, it would have compromised the workings of the intelligence community, placing intelligence assets in the field at risk.
OTHER FORMS OF DEPRIVATION OF LIBERTY WITH IMPUNITY
Strangely enough people who protest against detention without trial, do not appear terribly concerned when carriers or suspected carriers of contagious and dangerous diseases are kept in confinement or quarantined under orders of the state and against their free will.
I suppose the reason for such tolerance of the deprivation of an individual’s liberty in such circumstances is based on selfish interests. It is about self preservation. Quarantining or confinement is often done to protect not the incarcerated but instead, the public from contamination and fatal outcomes if not doing so. That’s the principle and justification at least.
Even so the executive under a public health ordinance is required to take such steps which often finds (depending on the strength of the lobby concerned) wide acceptance even amongst human rights groups (through their silence).
HUMAN RIGHTS AS A POLITICAL TOOL IN SERVICE OF THE WEST
In Cuba though where the government of Fidel Castro decided on quarantine for AIDS carriers, there was a hue and cry from the Gay lobby in the US and Europe who saw it as inhumane treatment and stigmatization of Gays by the state.
Yet for the same reasons of public order and security, when the same Fidel Castro’s regime detained political thugs and hooligans (criminals as he called them) acting on the payroll of foreign intelligence agencies, for purely political reasons the US and its allies condemned him and black listed the island nation with punitive sanctions for isolating people considered a threat to the state..
On a challenge by the late former US president Ronald Reagan, when Fidel Castro released his prisoners (prisoners of conscience as Reagan called them) to travel to Miami, the rate of crime (violent crime) soared to unprecedented levels in that state and the matter of detention for whatever reason soon faded from the political radar and became a non issue with the US.
LAWYERS HUMAN RIGHTS ACTIVISTS AND THE ISA
Lawyers are quick to raise the issue of unconstitutionality in the case of the ISA. There is often a confused argument raised by lawyers about the ISA based on ignorance and a failure to understand at a more profound level jurisprudential principles and theories that support detention by the ISA or the ISA itself as a necessity.
Government without a constitution (suspended constitution) is also frowned upon by legal theorists and lawyers in most libertarian circles. However it is often not recognized that it is not unconstitutional to suspend the constitution and the mechanisms for it are provided for in the constitution. Much depends on the reasons and urgency for its application to prevent a greater danger occurring. Unconstitutional government is a paradox supported by the constitution itself.
A deeper reading of the powers, prerogatives and discretions afforded by the constitution in its written and conventional forms will reveal a lot more about the contradictions we are required to balance in the constitution and in the freedoms and liberties we take for granted everyday.
Perhaps recent comments by former Justice NH Chan will expose the weakness of lawyers (and lawmakers and judges) in understanding constitutional law and the need for balance to meet political realities in places like Malaysia.
Gopal Raj Kumar