For me, reading our mainstream papers is akin to going to the dentist. I have an aversion to both.

Each time I pick up the papers, I brace myself against feelings of unease and anxiety. Reading the papers, I cringe and flinch at the matters reported. Putting down the papers, I experience a sense of relief.

I then worry and feel compelled to ask myself - is this reaction of mine right, what can be done to change it, if at all, and should I be reacting differently? Such questioning is not an easy exercise, it is painful and time-consuming - if not equally as bad as the original impetus of reading the papers.

One such reaction of mine was prompted when I read the article entitled 'Strengthen deterrence factor to address terrorism, says Najib' ( New Straits Times , April 12, 2004).

The deputy prime minister and defence minister was quoted as saying: "We have seen the emergence of transnational terrorist networks fuelled by frustration at the overwhelming might of Western powers and strengthened by a warped interpretation and abuse of Islam by a small number of misguided, fanatical Muslims."

He also said: "When apprehended and where appropriate, we favour rehabilitation, counselling and eventual reintegration of these groups into mainstream society" and "It is abundantly clear that the global political and security environment is now more uncertain than ever before".

In not so many words, he was referring to the existence of a number of groups of Muslims in Malaysia of apparently deviant Islamic beliefs, who have been locked away in Kamunting for rehabilitation under the Internal Security Act (ISA)1960 on grounds that they are terrorists. Despite such preventative measures, he acknowledges that the world and Malaysia are still under threat.

Do you see the contradiction? Lest it escapes you, let me draw it out.

Detention rules

In Malaysia, since 1960, there has been in place, what is known as 'preventive detention legislation'. The ISA was initially enacted for the purpose of apprehending the communists who were threatening the security of then Malaya. It has since been used to apprehend currency forgers, deviant religious groups, opposition political members and terrorists.

There are at least three main sections of the ISA which are cause for concern. I will run through the sections in the order they are usually invoked from the angle of their practical impact on human rights:

1. Section 73 - Powers of the police to arrest, investigate and detain for up to 60 days

Most, if not all, detentions under the ISA culminating in the issuance of a two-year detention order by the Home Minister under Section 8 commence with the arrest by the police of the person under Section 73. The police are empowered to detain a person for a period up to 60 days just by signing several sheets of paper. Such period is draconian as normally, the law only permits the police to detain a person for up to 14 days for the purposes of investigation.

Furthermore, the police, acting under Section 73 are allowed to do away with the usual requirement of producing the person before a magistrate within 24 hours of arrest. In addition, legal access is at the discretion of the police. Often it is refused, and if granted, only limited access is permitted. Such police powers are in stark contrast to the constitutional guarantees of arrested persons to free, unhindered and unlimited access to lawyers. It is mainly due to this section that detainees can be, and have been, systematically tortured and physically and mentally abused during their detention. These abuses have been widely reported and well-documented.

Detentions under the ISA seem more often than not to facilitate the indictment of the detainees rather than the investigation of the police into the supposed threat to national security. The police will interrogate the detainees and on most occasions, obtain confessions or incriminating statements from them. These 'reports' and 'results' of such investigations will then be forwarded to the Home Minister.

2. Section 8 - Powers of the Home Minister to issue orders detaining persons for periods up to two years which may be renewed indefinitely

The Home Minister may at his discretion, issue a detention order for up to two years detaining any person at the Kamunting Detention Centre in Taiping, Perak, or any other place he may stipulate. The issuance of such order is usually based on the reports, or results, of investigations by the police during the period of detention under Section 73.

This detention order will be accompanied by two other documents - one known as the Grounds for Detention (GFD) and the other the Allegations of Facts (AOF). The latter contains specific allegations of facts in support the former, which is more general in nature. For example, one of grounds possibly cited in the GFD is that group XXX, is a threat to the national security of Malaysia as it is part of the secret organisation known as Jemaah Islamiah which aims to overthrow the Malaysian government by violent and unlawful means in order to set up a Pan-Islamic State made up of Malaysia, Indonesia and the south of Philippines. The AOF would then contain five factual allegations against the detainee, who is a member of XXX, such as having for a stated period of time attended lectures held by a prominent preacher Abu Bakar Bashir whose lectures sought to instil a zeal for jihad .

Upon expiry of a detention order, the Home Minister is empowered, at his absolute discretion, to extend the said order by another two years, without giving any reason for such extension apart from reproducing the same GFD and AOF. This in effect, results in indefinite detention.

3. Section 8B - Ouster of the courts' jurisdiction to examine the Home Minister's detention orders made under Section 8 save for procedural compliance

For the longest time, a common remedy for a person detained against his will, was the filing of either an application for judicial review, or a writ of habeas corpus , in a court of law. With such tools, the person could launch a challenge to the order detaining him on substantive grounds and thereby seek his release.

However, pursuant to Section 8B of the ISA, the court is barred from examining the Home Minister's detention order made under Section 8, save and except to determine compliance with procedural requirements for the order. Section 8B effectively nullifies any legal challenge (on substantive grounds) made by the detainee against the detention order. The section is objectionable for the reason that by usurping the inherent powers of the judiciary, it infringes the rule of separation of powers and is therefore patently unconstitutional.

The process and abuse

Putting it all together, what do you have under the ISA? A situation where the police can detain you for up to 60 days without judicial scrutiny and without legal access. Where during such detention, you may be brainwashed, abused, interrogated, subject to solitary confinement and ultimately made to surrender 'confessions' and 'statements' incriminating yourself. All out of fear.

Fear for your life, your future. Fear of not being able to tell day from night, or one day from another. Fear that comes from having your existence being wholly governed by the police, as a slave is by his master. And once they have obtained such 'confessions' and 'statements', the police wield them like a stick, to be used against you if you ever decide to mount a legal challenge against your detention.

You are threatened that any word to lawyers or civil action groups will be met with untold harm to your family. Your family members are tailed by intelligence officers. Your wife receives text messages discouraging her from seeking legal help.

And all this while, during your detention, the police make calculated statements at different times to the media as to why and how you are a danger to society, how you were preparing to commit a crime until arrested, how you were part of a clandestine terrorist group, and other allegations against you and therefore, more time is needed to investigate you.

By preventing you from meeting with lawyers, you are unable to give instructions and defend yourself to the public. Friends and family are terrified and shocked at what they read about you in the morning papers. There is scant hope of stemming the tide of accusations against you. The damage to your reputation is a foregone conclusion.

The state needs to paint a picture of you being a menace to society in order to justify detaining you under the ISA in breach of your fundamental right to trial. The state needs to package you as a clear and present threat to the country in order to gain the consent of the public to use of the ISA.

After having to undergo all this, on the last day of your detention, you are slapped with a two-year detention order by the Home Minister. Along with it, you are given your GFD and AOF. You are sent to Kamunting.

You are so disoriented that it will take you months before you are ready to meet any lawyers, for you still harbour the fear that such meeting will only do more harm than good. Finally you meet them, after being convinced by your family to do so and after you have overcome your fear of the authorities.

You finally are sane enough to read your GFD and AOF properly and with the assistance of legal advice. You however have to recount the whole horrifying experience of your police detention to your lawyers in order to give them a complete picture and suffer the experience anew (much as a rape victim goes through a 'second rape' in testifying to the court about the crime).

You take advice, you give instructions, you are not happy with the GFD and AOF and say they are untrue, fabrication and lies. You ask for proof. There is none - the GFD and AOF are merely statements which can be easily made up and repeated. You want to see the results of the police investigations for proof. You want to see what the Home Minister read when he made the detention order. Was there any basis for the minister's decision?

Legal impotence

Legal action is mounted. A writ of habeas corpus is filed seeking your release. The Home Minister invokes Section 8B. The court agrees. Your legal challenge cannot be on substantive grounds. You are limited to procedural challenges.

The police investigations need not be produced, the minister's decision need not be examined. How then are we to find out if the minister took into account irrelevant material or irrational considerations? How then are we to discover if the police investigations were flawed or based on hearsay evidence, evidence that cannot be substantiated? No, never mind, all decision making in the interests of national security cannot be disclosed, cannot be scrutinised.

That was the danger with the war on Iraq, was it not? The US and Britain wanted so much to go to war that their intelligence 'told' them that Iraq had weapons of mass destruction (WMD) - that Iraq posed a "clear, real and present danger" necessitating a pre-emptive strike or defensive action of invading it.

When they went in, they could not find any such WMD. But surely they knew that, did they not? From hard, concrete and reliable evidence - see the statements of Scott Ritter, Rolf Ekeus, Hans Blix and David Kay - Iraq had no WMD.

So we see the real danger in allowing subjective personalised opinions to take precedence over objective propositional truths. That is the real danger, the lack of independent, objective scrutiny of subjective personalised opinions.

Access to the courts is a vital element of the rule of law. Section 8B does away with it. A constituent branch of the rule of law is that no one power is absolute, and to remove the process by which people are able to challenge an executive decision, is to render such executive action absolute, and hence favour dictatorship. Without such process, abuse cannot be checked.

Basic human right

It is now a well-entrenched principle that every person is born free and that the liberty of a person is a virtue in itself. An extension of that principle would be that no person should be punished, executed or incarcerated by the state in secret. And a corollary to that would be that any person who stands accused or charged by the state with a certain act or crime, is entitled to a free, just, impartial, open and effective trial. This right is known as the 'right to trial' and is a fundamental human right.

The essence of this right goes to the root of human liberty that even alleged perpetrators of crimes against humanity itself, such as former heads of state, Slobodan Milosevic and Saddam Hussein, are to be accorded that right.

States that detain persons without trial often package such detention (for the 'consumption' of their citizens) as 'preventive detention' - detention carried out to prevent crimes from being committed. From the recent experience in Malaysia, this is anything but the truth and is nothing but an excuse for the state to persecute persons when it is unable to gather sufficient evidence to charge persons in a court of law.

And that is the crux. That preventive detention under the ISA is carried out when evidence, if any, gathered against detainees is insufficient and/or unreliable to be used to charge them in a court of law. Many times, there is absolutely no evidence and a good deal of the grounds for the detention orders is trumped-up and flimsy in the nature of hearsay evidence - i.e. consisting of what A said to B who said to C regarding D.

The notion of the ISA being used as a preventive measure is therefore based on a false premise because mere suspicion is never sufficient reason to incarcerate a person. All civil societies acknowledge this and that explains the existence of a criminal justice system. You either try the suspect or set the person free.

If indeed there is cause for preventative measures, then such cause must be evaluated based on admissible evidence presented in a court of law and established beyond reasonable doubt. The best form of prevention is surely to charge the suspect and then allow the due process of law to determine whether he should be put away. By that we uphold and protect human rights.

If one cannot be charged for a substantive offence because it was not completed, the charge for the inchoate offence of attempt may be used instead. Complicity and aiding and abetting are common offences which may also be brought to bear against one who is perceived to be a threat to society.

The argument of those in favour of the ISA or in fact, any preventive detention laws, is that such laws are necessary to prevent persons from acting in a certain manner based on certain intelligence. In this, their argument is circuitous for it belies the fact that intelligence, which is the basis for the exercise of the laws for preventive detention, is a subjective creature.

As such, information offered for consideration by the executive in national security matters, though deemed by the sources of such information to be reliable and sufficient, may in truth prove to be the opposite. It is the subjective nature of intelligence that necessitates that it be independently tested.

The Iraq invasion proves of this need - intelligence was manipulated to portray a different scenario from the actual one to serve certain political interests. We have hopefully learnt a lesson to insist that all such intelligence be subject to scrutiny by the public through the use of the criminal justice system and in according each suspect due process in law. This would allow the suspect the right to challenge such intelligence through accepted rules of evidence and procedure.

Checks and balances

In Britain, independent 'special advocates' are engaged to scrutinise and test security intelligence presented to a tribunal in closed-door hearings. They are responsible for safeguarding the interests of the detainee but do not take direct instructions from the detainee (or his counsels) and are under no obligation to inform the detainee (or his counsels) of such intelligence.

There are two recent examples that reinforce the belief of advocates of human rights that preventive detention laws are being abused without proper check and balances:

1. The ISA detainees dubbed the 'KMM Group' had their detention orders extended for another two years. This group is allegedly responsible for the murder of Kedah assembly representative Dr Joe Fernandez and for the infamous Southern Bank robbery. No reasons were given for the extension save that the Home Minister has stated that investigations are still being carried out on their links with international terrorist organisations.

This is a clearly inadequate ground for incarcerating them further under the ISA. They have already endured two years of detention...and the authorities are still investigating? This inadequacy is further underlined by the fact that their respective GFD and AOF did not, in the first place, stipulate their purported links with international terrorist organisations as grounds for their detention in Kamunting.

2. MCA Penang leader Ong King Ee (better known as Jackie Chan) was detained without trial under the Emergency Ordinance (which has similar preventive detention powers as the ISA). He was detained on Sept 28 last year. It was widely reported that he was a leader of a triad alleged to be responsible for a spate of robberies, kidnapping and murders and as such, was a threat to national security. He was never, however, charged or convicted for those alleged offences.

On Jan 30, he was granted a royal pardon and released. Was it because the allegations against him were false? If they were, why then was he detained in first place? Did all the grounds for detention prove false in the end? Mere fables?

Preventive detention laws are a gross abuse of human rights for these are arbitrary, indefinite, discriminatory and a violation of the right to trial. It is an accepted belief that a criminal justice system which promulgates the right to trial is the way forward for humanity. To detain a person without trial is as good as granting him an ineffective trial, one with little or no protection of his rights or a 'show trial', much like the trials conducted by Stalin to purge his political opponents.

Herein lies the contradiction. Deterrence by way of preventive detention without trial does not make things better but worse. It merely postpones the effects of terrorism and angers the Muslim world. The US and Malaysia are not any safer than they were before. Najib recognises that by his statement that "It is abundantly clear that the global political and security environment is now more uncertain than ever before". Arbitrary detention for indefinite periods does not reduce terrorism. Bombs still go off.

The human rights approach can no longer be ignored. This perspective demands a global and holistic approach to viewing terrorism as a human rights problem, to be solved by established humane remedies founded on respect for human rights principles.

The first step in the approach is for all nations to ratify and fully apply international human rights conventions. Oppression of the Muslim community around the world must end and the Palestine-Israel issue must be resolved. Islam must be viewed as a way of life and valid choice which should be accepted rather than denigrated. Differences in interpretation of Islam should be tolerated. Iraq must be left alone.

And the US must stop placing itself above others and acting as a law unto itself. Poorer nations must be assisted by the rich in their growth and development. Human rights must be accorded due recognition. The achievement of civil society must be the aim of every nation.

Any attempt to rehabilitate unconvicted prisoners as publicly endorsed by Najib is wrong. Article 95 of the Standard Minimum Rules for the Treatment of Prisoners stipulates that no measures can be taken to re-educate and rehabilitate unconvicted prisoners. There is no one correct version of Islam. The issue of differing ideologies of Islam is one to be settled between a man and his God. Governments should not impose their ideology of Islam on their subjects.

We are all for fighting terrorism but arbitrary detention is certainly not the way to go about it. Najib's speech underlines that.

It was Immanuel Kant in 'Foundation of the Metaphysics of Morals' who said: "Act so that you treat humanity, whether in your own person or in that of another, always as an end and never as a means only."