Internal Security Act 1960


The Internal Security Act 1960 was a preventive detention law in force in Malaysia. The legislation was enacted after the Federation of Malaya gained independence from Britain in 1957. The ISA allows for detention without trial or criminal charges under limited, legally defined circumstances. On 15 September 2011, the Prime Minister of Malaysia, Najib Razak said that this legislation will be repealed and replaced by two new laws. The ISA was replaced and repealed by the Security Offences Act 2012 which has been passed by Parliament and given the royal assent on 18 June 2012. The Act came into force on 31 July 2012.

Structure

The Internal Security Act 1960 was consisted of 4 Parts containing 85 sections and 3 schedules.
  • Part I: Preliminary
  • Part II: General Provisions Relating to Internal Security
  • * Chapter I: Prohibition of Organizations and Associations of a Political or Quasi-Military Character and Uniforms, etc.
  • * Chapter II: Powers of Preventive Detention
  • * Chapter III: Special Powers Relating to Subversive Publications, etc.
  • * Chapter IV: Control of Entertainments and Exhibitions
  • * Chapter V: Other Powers for the Prevention of Subversion
  • * Chapter VI: Miscellaneous
  • Part III: Special Provisions Relating to Security Areas
  • * Chapter I: Proclamation of Security Areas
  • * Chapter II: Powers Relating to Preservation of Public Security
  • * Chapter III: Offences Relating to Security Areas
  • * Chapter IV: Powers of Police and others
  • * Chapter V: General
  • * Chapter VI: Power to make Regulations
  • Part IV: Miscellaneous Provisions
  • Schedules

    History

Preventive detention was first implemented in Malaya by the British in 1948 to combat the armed insurgency of the Malayan Communist Party during the Malayan Emergency. The Emergency Regulations Ordinance 1948 was enacted by the British High Commissioner Sir Edward Gent. It allowed the detention of persons for a period not exceeding one year. This ordinance targeted acts of violence and only imposed temporary detention. The Malayan Emergency ended in 1960 and the ordinance was repealed. However, preventive detention was retained and remains a feature of Malaysian law today. In 1960, the government passed the Internal Security Act under the authority granted by Article 149 the Malaysian Constitution.
The stated purpose of the ISA was to deter communist activity in Malaysia during the Malayan Emergency and afterwards. The first Prime Minister of Malaysia, Tunku Abdul Rahman, defined the purpose of the act as to "be used solely against the communists...My Cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent".
In response to criticism that the ISA was not democratic or was too open to abuse, the first internal security minister, Ismail Abdul Rahman, stated:
However, partly due to massive street protests involving the public and politicians from both sides which portrayed the ISA as draconian and unnecessary in view of Malaysia's progress to "developed nation" status, on 15 September 2011, Prime Minister Najib Razak announced that The Internal Security Act will be abolished. Two new laws will be introduced instead to safeguard peace and order.

Reform

The government is in the final stages of revising the Internal Security Act. Home Minister Datuk Seri Hishammuddin Tun Hussein has stated that ISA amendments will revolve around five areas – the length of detention, rights and treatment of detainees and their families, the power of the home minister, the use of ISA for political reasons and detention without trial. In revising the ISA, the government met with key stakeholders to discuss amendments. Hishammuddin and Home Ministry's officials met for about three hours with representatives from the Attorney-General's Chambers, the Bar Council, the Barisan Nasional Backbenchers Club, the National Council for Women's Organisations and the National Civics Bureau. The Home Minister said that during the discussions, all parties agreed that there should be a law in place to protect the people against terrorism and militancy. The Law Reform Committee set up to review detentions under the Internal Security Act has submitted its amendment proposals to the Cabinet. Parliament is expected to conclude its review of the amendments during its current sitting.

Law

Some notable sections of the legislation include:
Section 73 Internal Security Act 1960:
"Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe that there are grounds which would justify his detention under section 8; and that he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof."
Section 8 ISA: Power to order detention or restriction of persons.
" If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or the economic life thereof, he may make an order directing that that person be detained for any period not exceeding two years."
Section 8 theoretically restricts detention to a period not exceeding two years but this limit is readily circumvented because under Section 8, the duration of the detention order may be extended indefinitely in increments of up to two years The extension of the detention order may be made on the same grounds as those on which the original order was based or on different grounds. In delivering the judgment of the Court, Steve L.K. Shim CJ in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir 6 AMR 497 at page 506, ruled that the powers extended to the Home Minister are valid under the Malaysian Constitution. In addition, preventive detention is also now allowed by the Dangerous Drugs Act 1985 and the Emergency Ordinance 1969. The Human Rights Commission of Malaysia 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, does not violate basic human rights.
A detenu can make representations against his/her detention if an order of detention has been made against the detenu by the Minister under Section 8 of the ISA but under Section 73 however, the detenu seems to have no such right. Generally, the attitude of the Malaysian courts in respect of detention under Section 73 is that the courts have jurisdiction only in regard to any question on compliance with the procedural requirements of the ISA and they seldom grant any substantive rights to the detenu.
Article 151 of the Malaysian Constitution gives to any person detained without trial 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. The detainee shall also be given an opportunity within three months, of making representations against the order to an Advisory Board. The Advisory Board as the name implies is not a court. Its determinations are also mere recommendations that the government is under no obligation to accept. It may also be handicapped in its deliberations by the discretionary power of the government to withhold facts, the disclosure of which would, in the executive’s opinion be against national interest.
Any person may be detained by the police for up to 60 days without trial for an act which allegedly threatens the security of the country or any part thereof. After 60 days, one may be further detained for a period of two years each, to be approved by the Minister of Home Affairs, thus permitting indefinite detention without trial. In 1989, the powers of the Minister under the legislation was made immune to judicial review by virtue of amendments to the Act, only allowing the courts to examine and review technical matters pertaining to the ISA arrest.

The Reid Commission

‘Anti-government’ has at times been simply equated to being ‘anti-national’. In their Report, the Reid Commission mentioned that the rights they were recommending had already been firmly established throughout Malaya and the guarantee of the fundamental rights would be provided by the mechanisms of: the Constitution being the supreme law; ‘the power and duty of the Courts to enforce these rights’; and, ‘the Courts would annul any attempt to subvert any of them whether by legislative or administrative action or otherwise’.
Hardial Singh Khaira , in his analysis of judgments related to the ISA maintains that 'not only have the Malaysian courts failed to annul the encroachments on the fundamental rights but their lack of judicial activism has in fact subverted those rights further. The failure of the Malaysian courts in relation to the ISA starts with the fact that they have generally accepted the subjective satisfaction of the executive for justifying the detention of an individual.' He further adds that the 'current approach of the Malaysian courts only serves to reduce executive accountability and respect for human rights under the rule of law.'

Release

Although the government may release detainees unconditionally, in some cases, it has required those being released to make a public confession on television and radio.
The case of Raja Petra Kamarudin, a well known blogger of Malaysia Today website, detained under the Internal Security Act on 12 September 2008 and was subsequently released 56 days later, was due to the habeas corpus filed by his lawyer citing unlawful detention by the Home Ministry. The High court, on 7 November 2008, over-ruled that detention and he was set free on the same day.