The review of the Internal Security Act (ISA) by the Human Rights Commission of Malaysia (Suhakam) is certainly a breakthrough in the long struggle by Malaysian human rights activists to repeal the act.

For o­ne thing, Suhakam was formed by an Act of Parliament and its call for the review of this abhorrent law is long overdue. (The report was released o­n April 9.)

Nevertheless, by proposing " a new comprehensive legislation" which among other provisions, would allow remand detention by the police for up to 29 days and "interim recommendations" of three months' detention without trial, Suhakam has failed to adequately protect the human rights of Malaysians.

Emergency legislation

Any emergency legislation diminishes the rights of ALL citizens. It provides the government, police and army with powers that cannot be challenged by the courts and corrupts the standards which are central to the administration of justice.

Individual liberty is no longer protected by the law but is at the arbitrary disposition of the Executive, while the cardinal principles of the rule of law are violated.

The long record of the ISA since 1960 has borne this out and Suhakam should instead question the legitimacy of the existence of the states of emergency that have not been annulled to date.

The history of the ISA has shown that it has not served as a deterrent to those who would resort to violence in pursuit of their religious or political ideals. Indeed, the fact that the Al Maunah group could be charged and sentenced in the open court is instructive.

At the same time, emergency legislation also tends to drive legitimate movements underground into illegality and extremism.

Emergency powers are by no means a necessary response to political violence but are o­ne of the chief causes of continual violence. As the examples from conflicts around the world demonstrate, the denial of civil rights merely feeds the conflict from which political violence emerges.

Ordinary law, which requires the suspect to be arrested o­n reasonable suspicion of an offence, gives the police more than adequate powers to bring suspects to court. Malaysian laws in particular are well known for giving the police excessive powers.

Emergency legislation allows the police to arrest, detain and interrogate those against whom there is no evidence at all. The detainees under Operasi Lalang and the present ISA 6 fall under this latter category.

Central to a just legal system is the principle that a person is innocent until proven guilty. Under emergency legislation, it is the innocent who must establish his or her case if permitted to apply for a writ of habeas corpus .

Checks and balances

In an emergency situation where the police are given wide powers of arrest and interrogation, accountability and control are of vital importance.

First, the courts have not lived up to the expectations of protecting individuals from abuse of state power.

Despite the ample evidence of torture under the ISA through the years (See 'The ISA: An Instrument of State Terror' in Malaysian Critical Issues by Kua Kia Soong, SIRD 2002), the courts have not punished any of these torturers.

The courts have never been given the opportunity, since no charges have ever been pressed by the Attorney General nor has any inquiry been conducted into torture under the ISA.

Suhakam glosses over this problem by merely sounding a reminder to law enforcement officers to "conduct themselves in a manner which evinces understanding of and absolute respect for the prohibition against torture or other cruel, inhuman or degrading treatment or punishment".

Secondly, the police should not be the party that investigates complaints against the police. We need an Independent Police Complaints Board that can recommend a Tribunal of Inquiry into any controversy over complaints of torture.

Thirdly, the recommendation by Suhakam for the Act to be renewed annually by Parliament is proper. Nonetheless, while the parliament remains a rubber stamp for the Barisan Nasional government, it is unlikely to highlight abuses and introduce reforms.

Fourthly, reducing the length of time the police can hold a suspect in custody would help to prevent extended abuse in the interrogation room, but much more is needed. There should be a code of interrogation practice laying down in detail how a suspect should be treated from the time of arrest to release.

The suspect's right of access to a lawyer, family and medical examination must be safeguarded. The police would have to show that they complied with the code for any confession made by the suspect to be admissible in court. Otherwise, such confessions are inadmissible.

Another way to monitor interrogation is for the proceedings to be tape-recorded or for the lawyer to be present. Unannounced visits by Suhakam to any centre of detention should be a matter of course and provided by the law.

New body

In view of the complaints against police abuse of power not o­nly in ISA cases but also in cases of deaths in custody and others, it is time we had an Independent Police Authority.

This body would have power and commitment to ensure that the police do not step outside the law and do not operate unfairly or oppressively against any section of the community.

It would have a duty and power to investigate complaints against the police and to take measures to secure redress, including preferring charges of a criminal nature against the police. The public would also expect a detailed annual report of its operations.

To conclude, as the National Commission for Human Rights, we expect Suhakam to be consistent in the defence of the human rights of all Malaysians and to recommend mechanisms to prevent abuse and misuse of state power.

Dr KUA KIA SOONG is principal of the community-funded New Era College and a director of human rights group Suaram. He was a member of parliament and an Internal Security Act detainee.