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Friday, September 12, 2008

RPK detained under ISA

By now, you will have heard that RPK (or Raja Petra Kamaruddin, the author of the highly popular Malaysia Today website) has been detained under the draconian Internal Security Act (ISA) today.

The MT (Malaysia Today) website is highly popular with its readers - many will be hugely upset with the latest arrest. The current political climate is still fragile with 916 looming and the very recent racist remarks. As tensions run high, it is even more important to remain calm, be fully informed, and do not over-react at all times. The last thing we want is another May 13, 1969 or another Ops Lalang with the Opposition rounded up.

A show of solidarity has been planned for RPK at Kelana Jaya Stadium at 8 pm, Monday, 15 September 2008. Please attend, if you are able.


Until then, this is a perfect opportunity to be fully informed on issues relating to ISA. For example, what is the ISA? How can someone like RPK can be arrested under ISA? What is the history of ISA and is this still relevant today? Why is it "draconian"?

As many of you will know, Wikipedia and Google are 2 of my favorite resources. Wiki carries a relatively good info on the ISA here - http://en.wikipedia.org/wiki/Internal_Security_Act_(Malaysia). I will extract and highlight some of the parts which I think could be relevant, and provide my commentaries also within the context of RPK's detention.

What is the ISA?

The Internal Security Act 1960 (ISA) (Malay: Akta Keselamatan Dalam Negeri) is basically a preventive detention law.

In essence, it allows anyone to be arrested without the need for trial in certain defined circumstances (see below).

History of ISA

ISA 1960 was actually inherited by Malaysia after it gained independence from Britain in 1957.

Preventive detention first became a feature of the then Malaya in 1948 primarily to combat the armed insurgency of the Malayan Communist Party.

The Emergency Regulations Ordinance 1948 was made, following the proclamation of an emergency, by the British High Commissioner Sir Edward Gent. It allowed the detention of persons for any period not exceeding one year.

The 1948 ordinance was primarily made to counter acts of violence and, conceivably, preventive detention was meant to be temporary in application. The emergency ended in 1960 and with it ended the powers contained in the that ordinance as it was repealed.

The power of preventive detention was however not relinquished. In 1960, the government passed the Internal Security Act under Article 149 of the Malaysian Constitution.

How does ISA work?

In essence, ISA permits the detention, at the discretion of the Home Minister, without charge or trial of any person in respect of whom the Home Minister was satisfied that such detention was necessary to prevent him or her from acting in any manner prejudicial:

(a) to national security or
(b) to the maintenance of essential services or
(c) to the economic life in Malaysia.

(Section 8(1) of the ISA)

Under what grounds is RPK arrested under ISA?

To be honest, I am not sure at this point in time what is the reason for RPK's detention. In my simplistic lay-person mind:

(a) I simply just cannot see how RPK nor the MT website is a threat to national security. Especially when compared to remarks uttered by Ahmad Ismail, and many other worse acts done in the past, such as Hishamuddin's keris antics, or even DPM Najib's keris bathing with Chinese blood remarks in the late 80s.

(b) I also simply cannot see how RPK or the MT website will affect the maintenance of essential services. Especially in Malaysian context where maintenance of essential services is done at variable standards ranging from excellent to extremely poor.

(c) And I seriously doubt how RPK or the MT website is prejudicial to the economic life in Malaysia.

So, I am extremely puzzled as to why RPK is being detained.

Malik Imtiaz, a human rights lawyer and a blogger has this to say in his blog here - http://malikimtiaz.blogspot.com/2008/09/rpk-isa-and-rest-of-us.html

I quote: "The Government must also do its part and explain clearly how RPK is a threat to national security and why he has been detained. He had presented himself everytime he was asked to at police stations and in court. He has been charged, has not attempted to flee the jurisdiction and has indicated his desire to defend himself in court. Access to Malaysia Today has been permitted. And though four police reports have recently been lodged against him by agencies linked to the Government, a consideration of those police reports in the bigger picture would reveal the unreasonableness of his being detained on the basis of what has been alleged in those reports. The Government must make the basis of its decision clear and why it is RPK cannot be tried in an open court."

To me, the key words are "Explain CLEARLY". Not just any vague explanation. It must be clear that when first explained, most people can honestly say "yes, I understand". It must also be capable of withstanding reasonably intelligent scrutiny.

According to Wiki: Article 151 of the Malaysian Constitution gives to any person detained without trial (under the special powers against subversion) certain administrative rights. By the terms of Article 151 the authority, on whose order a person is detained, shall, as soon as may be, inform the detainee of the grounds of detention and the allegations of fact on which the order is based.

According to MT here, the grounds of detention has been given: http://mt.m2day.org/2008/content/view/12576/84/

4:00pm Marina's recieved a 'notis penangkapan' from Chief Inspector Azrin Abu Bakar, stated reason of detention. The notice sounds like this:

"...penulis telah menyiarkan rencana-rencana di laman web memburukkan kepimpinan negara dan menghina kesucian agama Islam sehingga menimbulkan kekeliruan kepada rakyat..."


He's being detained because he has confused Rakyat?

Is this a valid reason to detain someone indefinitely under the ISA?

Oh dear!

If anything, RPK's writings have clarified a lot of things that has been happening in this country, instead of causing greater confusion. How can one confuses things when one speaks the truth? Specifically, which part - which article - which paragraph - which sentence - of his writing is supposed to have caused "confusion to Rakyat"?

And what is the implication of this alleged "confusion"? Is the impact of the alleged confusion on Malaysian society so bad that it deserved indefinite detention without trial? Why can't RPK be charged and trialed in the open court as he has demanded many times before?

Furthermore, is his case really that serious, when compared to numerous other people in this country that have "caused substantially far larger confusion to Rakyat"? For example, Ahmad Ismail? If Ahmad Ismail is not detained under ISA, then, why should RPK be detained when his article has far lesser elements of racism?

Dear, oh dear! I am sorry Mr Home Minister, but I simply failed to understand the grounds of RPK's detention.

It simply seemed grossly unfair to any right thinking Malaysian.

You will need to do a better job at CLEARLY EXPLAINING to Rakyat why you are detaining RPK indefinitely under the ISA.

And this thing about alleging RPK to "give a bad name to the current leaders of the country". What exactly are these "bad names"? Notwitstanding that, can anyone honestly say that whatever bad names that have been uttered, are they not deserving? Surely our country's leaders are not surprised that millions of Malaysians have been giving "bad names" to our country's leaders well before Mar 8 GE results? Did the leaders change? What about after Aug 26 Permatang Pauh by-elections results? And the government only charge RPK under ISA today, on Sep 12 2008, which is 4 days prior to 916?

And the alleged insult on the Islam Religion - as a regular MT reader, I am extremely puzzled since my own personal experience reading thousands of his articles gave me a reasonably good impression of him as a genuine Muslim, and it simply didn't occur to me at all that he would deliberately insult Islam. In fact, I cannot recall a single instance when he insulted Islam! And I am certainly not confused as a result of reading his writings. If the truth be told, I am actually very confused with the grounds for RPK's ISA detention which have yet to be given in substance, than his writings.

Length of ISA Detention

A person detained under the ISA during the first 60 days is held incommunicado, with no access to the outside world. Furthermore, lawyers and family members are not allowed access to the detainee during this initial period.

If a two-year detention order is signed, the detainee is taken to the Kamunting Detention Centre to serve his or her two-year term, during which family members are allowed to visit.

The power to detain seems to be restricted by Section 8(1) to a period not exceeding two years but the restriction is really illusionary because, by virtue of Section 8(7), the duration of the detention order may be extended for a further period not exceeding two years and thereafter for further periods not exceeding two years at a time.

The extension to the detention order may be made on the same ground as those on which the original order was based, or on different grounds.

In short, the length of detention can be indefinite.

The Human Rights Commission of Malaysia (SUHAKAM) has recently recommended that the ISA be repealed and replaced by new comprehensive legislation that, while taking a tough stand on threats to national security (including terrorism), does not violate basic human rights.

It would be interesting to see if SUHAKAM will come out with a statement demanding for an immediate release for RPK, further to my earlier article on Muhammad Shafee Abdullah here questioning if both are the same or different person -

Criticisms of the ISA

The ISA is one of the most controversial Acts enacted under Article 149 of the Malaysian Constitution.

According to Wiki: "Malaysia is one of the few countries in the world whose Constitution allows for preventive detention during peacetime without safeguards that elsewhere are understood to be basic requirements for protecting fundamental human rights. "

Not surprisingly, the Opposition has criticized the ISA for many reasons. The implementation is often labelled as a political tool by the ruling government to suppress the Opposition, rather than genuine preventive detention for national security or other reasons specified in the ISA law. For example, many of the Opposition members in the past (e.g. those from PAS, PKR and DAP) have been detained under ISA before and subsequently released.

Furthermore, according to Opposition leader Tan Chee Koon ... "This infernal and heinous instrument has been enacted by the Alliance Government at a time when the emergency was supposed to be over. Then it promptly proceeds to embody all the provisions of the Emergency Regulations which during the Emergency had to be re-enacted every year, but now it is written into the statute book ad infinitum...

The fact that it is a violation of fundamental human rights cannot be disputed. For example, the detention without trial aspect. Imagine simply being locked up for an indefinite period, with absolutely no right to even be trialed in court, and no opportunity to even prove one's innocence, or to even defend oneself against charges by the government. Or the indefinite period detention aspect, instead of a limited period. Or the detention being made at complete discretion of the Home Minister aspect - there are so many flaws here, where arbitariness would inevitably come into consideration (since there is no clearly written guidelines and case-by-case interpretation can potentially vary extremely widely). Also, changes in Home Ministers, or changes in Prime Ministers, or changes in ruling government, or simply a change over time, or for any other reaon could result in different absolute or relative standards being applied as to the grounds of the ISA detention with varying degrees of un/fairness. And so forth.

But the surprise is that even BN and UMNO has criticized ISA in the past too, including Badawi and Mahathir previously!

In 1987: Badawi stated "Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law."

In 1988: Badawi went on record to state "If we want to save Malaysia and Umno, Dr Mahathir (then Prime Minister) must be removed. He uses draconian laws such as the Internal Security Act to silence his critics."

In 2003 when Badawi became Prime Minister: the ISA "a necessary law," !

Badawi further said "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society."

Oh dear! With RPK's detention, has Badawi done another flip-flop again? How will he now explain that RPK's detention under ISA is "never misuse"? Where are the "proven threats" by RPK?

Not surprisingly, Mahathir is also similar in his duplicity with the ISA:

In 1966: when Mahathir spoke out in support of the Internal Security (Amendment) Bill 1966 as a backbencher, he stated that "no one in his right senses like[s] the ISA. It is in fact a negation of all the principles of democracy."; However, after becoming Prime Minister, he had little if any hesitation using the law to suppressed what he termed racialism but was seen by some as a move against his political opponents, the most notable of events being the infamous Operasi Lalang in 1987.

(And as an aside, one did not hear him promoting the use of ISA against Ahmad Ismail to "suppressed racialism" too.)

Disclaimer: I am not a lawyer by experience, training nor profession. This is merely a layperson's current personal understanding of ISA formed by applying independent critical thinking based on various related materials on the topic. If you require pesonal assistance on ISA, please consult your own professional legal advisor.

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