Continuing from Fridays article introducing the USA Patriot Act, this section explores the components of the act that has been compared to our very own Internal Security Act.

Similarities between the USA Patriot Act and the ISA

Power of detention

USA Patriot Act ISA
In the hands of the attorney-general In the hands of the home minister

Detention based on suspicion on the part of the individual/organisation with the power of detention

USA Patriot Act ISA
The act authorises the attorney-general to certify and take into custody a non-citizen as a terrorist if the attorney-general has reasonable grounds to believe the individual is engaged in any activity that endangers the national security of the United States .(7) The home affairs minister (Interior Minister) has the right to have any person detained if he is satisfied that the detention is necessary to prevent the person from, acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof ...(8)

Safeguard  Review of cases

USA Patriot Act ISA
The attorney-general shall review the certification every six months. If the attorney-general determines, in his or her discretion, that the certification should be revoked, the immigrant may be released on such conditions as the attorney-general deems appropriate, unless such release is otherwise prohibited by law. The immigrant may request each six months in writing that the attorney-general reconsider the certification and may submit documents or other evidence in support of that request. Article 151 of the constitution requires that any law sanctioning preventive detention should contain provisions which allow the detainee the opportunity to make representations to an advisory board, made up of three members appointed by the Yang di-Pertuan Agong (advised by the cabinet), and including a judge or retired judge.

Having made a recommendation the advisory board is required to review the detainee's case every six months.

Under the ISA, unlike under the 1948 Emergency Regulations, the advisory board does not have the power to order the release of a detainee, but can only make recommendations for release or continued detention to the King at his discretion. The decision of the King is final and cannot be called into question by any court.(10)

Differences between the USA Patriot Act and the ISA

Detention of citizens vs non-citizens

USA Patriot Act ISA
Clauses applies only to non-citizens Clauses applies to all, both non-citizens and citizens

Permanence of the law

USA Patriot Act ISA
Provision is made via a sunset cause that this Act will cease to have effect on Dec 31, 2005. Exceptions are made with respect to any particular foreign intelligence investigation that began before the date on which the provisions cease to have effect, or with respect to any particular offense or potential offense that began or occurred before the date on which such provisions cease to have effect.(11) ISA is a permanent law

Effectiveness of judicial safeguard

USA Patriot Act ISA
Judicial review of any action or decision relating to this section is available exclusively in habeas corpus proceedings consistent with this subsection. (9)

Nothing in this Act precludes judicial review in habeas corpus proceedings as long as they are filed in the proper courts / jurisdictions.

Article 5 (2) of the Malaysian constitution states: A detained person or his counsel shall be entitled at any time to take proceedings according to domestic law before a judicial or other authority to challenge the lawfulness of his detention in order to obtain his release without delay, if it is unlawful.(12)

But Section 8B(1) of the ISA Act as amended read: There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this act governing such act or decision.(8)

Charging the offender

USA Patriot Act ISA
The attorney-general shall place an immigrant detained in removal proceedings, or shall charge the immigrant with a criminal offence, not later than seven days after the commencement of such detention. If the requirement of the preceding sentence is not satisfied, the attorney-general shall release the immigrant.(9) Section 73(1) of the ISA allows the police to arrest without a warrant and detain pending enquires, for a period of up to 60 days.(8)

Limitation of detention

USA Patriot Act ISA
An immigrant detained who has not been removed and whose removal is unlikely in the reasonably foreseeable future, may be detained for additional periods of up to six months only if the release of the immigrant will threaten the national security of the United States or the safety of the community or any person.

Exceptions are those individuals detained due to security or terrorism concerns as well as those individuals determined to be especially dangerous to the public.(9)

The minister is empowered to 'make an order' directing that person to be detained for any period not exceeding two years. The detention order may be renewed indefinitely.(10)

Comparison justified?

Both the US attorney-general and the home minister in Malaysia hold similar powers under the respective legislations. Both can order the detention of suspects on the suspicion that they are intending to carry out activities that will threaten the stability of the country. Both the AG and the home minister have the necessary powers

There are also built-in safeguards in both acts which hope to limit the abuse in the use of these acts. One such safeguard is the exercise of a review system to examine new circumstances and fresh evidence in regards to the detainees.

Under the Patriot Act, the AG determines the outcome of the review.

In Malaysia, an advisory board made up of appointees of the Yang di-Pertuan Agong will recommend an outcome for these reviews but the Agongs decision is final and cannot be questioned. In practice, the advisory board acts as a rubber stamp for the government through the home minister since the cabinet recommends the members of that board to the Agong.

It is still too early to determine if such a judicial safeguard is working in the US.

The most important difference between the Patriot Act and the ISA is that the former does not and cannot apply to American citizens. The rights of the American citizen to a fair trial are not in the least diminished by the passing of the Patriot Act. The consequence of greater authority vested on the FBI and the CIA by this act may curb other civil liberties of US citizens such as personal privacy but not the right to a fair trial.

The ISA on the other hand can be used against both foreign nationals and Malaysian citizens although history has indicated that the ISA is more likely to be used against the latter than the former. This is arguably the most important factor in distinguishing the thrust and spirit of the Patriot Act from that of the ISA.

The status or permanence of the law is also different in the two states. The ISA is a permanent law (even though the conditions from which the act came has now long gone) whereas the Patriot Act is one which is envisioned to be pared down and eventually cease by Dec 31, 2005, when the threat of terrorism has been more contained.

While judicial review through habeas corpus proceedings seem to exist under both acts, a more thorough investigation will find that the ISA has been amended to prevent anyone questioning the outcome of a trial.

No grounds for comparison

From this examination of the relevant aspects of the Patriot Act, it seems clear that comparisons between the Patriot Act and the ISA in Malaysia are not grounded.

The Patriot Act is specifically designed with the aim of combating terrorism in mind. It affects only non-citizens and in no way or form does it allow for the detention of citizens without trial.

In Malaysia, the ISA which originally was intended for use to combat the communist threat, is now used against opposition members, religious deviants, educationists, nearly all of whom are Malaysian citizens .

This it not to say that these aspects of the Patriot Act are acceptable according to internationally accepted standards of human rights and refugee and immigrant rights. This is not the place to judge the merits and demerits of the Patriot Act from a US judicial, legislative and constitutional point of view.

Rather, it is to demonstrate that calls to justify the existence and continuation of the ISA in Malaysia based on the Patriot Act is clearly weak and shows that the parties that have done so have not investigated the content of the Patriot Act in detail.

Notes

(7) Uniting and strengthening America by providing appropriate tools required to intercept and obstruct terrorism (USA Patriot Act) Act of 2001 HR 3162

(8) Section 8(1), Internal Security Act, 1960 (Act 82)

(9) Section 412 (a), USA Patriot Act

(10) Amnesty International Report Malaysia, Human rights undermined: restrictive laws in a parliamentary democracy, Sept 1, 1999

(11) Section 224, USA Patriot Act

(12) Article 5(2), Malaysian Constitution

ONG KIAN MING was headed for glorious riches as a management consultant before too much of the good life got to him. He's now working at a think tank focusing on nation building, civil liberties and minority representation issues. He also has a column every Monday in the New Straits Times called 'Chisel and Stone' which he co-writes with his boss.

He can be reached at im_ok_man@yahoo.com. The opinions and content of this article are his alone.