Human rights activists in Malaysia have had a torrid time over the past year, watching developments that seemed to bring some civil liberties within reach, only to have others snatched away.

The Internal Security Act 1960 (ISA) has been at the heart of moves that kept critics in a state of high alert and alternating between optimism and cynicism.

Among events that marked a sense of forward movement were the unexpected release of 30 ISA detainees, and a report by the Human Rights Commission of Malaysia (Suhakam) that urged a review, then replacement of the ISA with a fairer national security law.

Yet, new anti-terrorism laws were rushed through Parliament and detentions continued, including those of 13 youths pursuing religious studies in Karachi. They were deported last November and arrested on arrival in Kuala Lumpur for suspected militant activities.

In another twist, de facto law minister Dr Rais Yatim announced on Jan 1 that an amendment to the ISA was being considered, to halve the initial 60-day interrogation period.

This should have brought some satisfaction to activists. Far from celebrating, one of the most vocal campaigners - the Abolish ISA Movement - issued a terse statement calling for the law to be scrapped instead of being patched with half-hearted concessions.

Its position is better understood against the backdrop of a series of statements and actions by the government over the Karachi 13, which suggest that the authorities are far from willing to loosen their grip over civil liberties.

At last month's World Human Rights Day event organised by Suhakam, Defence Minister Najib Tun Razak was unapologetic in saying the government would continue using the ISA in "appropriate cases where circumstances do not allow the use of the Penal Code".

Avoiding judicial scrutiny

As a case in point, the investigation into the alleged activities of the Karachi 13 reveal much of the old cat-and-mouse game that is played out of judicial sight, and raises new concerns.

The students - ranging in age from 16 to

25 - were initially arrested under Section 73 of the ISA, which allows police to detain suspects for up to 60 days for interrogation. The findings are used by the Home Minister to decide if they should serve a two-year detention order.

Family members of the students attempted to challenge the arrests on two legal fronts. Firstly, they said the police had failed to produce evidence to justify the arrests, the latter being a requirement set by a landmark Federal Court decision last year.

Secondly, they protested the application of the ISA to detain four underaged students. This is because the Child Act 2001 expressly stipulates that no person under the age of 18 can be detained without being brought to a magistrate within 24 hours.

However, before the court could hear arguments, the authorities removed the students from detention under Section 73, thereby rendering the court applications obsolete .

Then came the graduated releases. Four of the students were released unconditionally on Nov 24.

On Dec 9, another four were released conditionally under a two-year restricted residence order that limits their movements.

The remaining five - all more than 18 years old - were detained under Section 8 of the ISA, which also specifically excludes judicial review of the Home Minister's decision.

This prompted an immediate response by the students' lawyers who protested the move as one planned to subvert the legal applications and avoid judicial scrutiny of the detentions.

Whether or not this was the government's true intention, the turn of events indicates that ISA provisions can be used at will to detain individuals indefinitely without trial - no matter how short the initial interrogation period may be in future.

The families of the five detainees have since complained that their sons are not being held at the Kamunting Detention Camp in Perak, but at undisclosed locations where they fear the interrogations may be continuing.

Intelligence gathering

The case further highlights the extent to which the police have dispensed with criminal investigative procedures, since they can make use of sweeping ISA powers instead.

Of these, the exemption from producing individuals in court on specific charges and with evidence is a long-standing sore point with activists, who seek the right for them to rebut allegations.

Where the Karachi 13 were concerned, the very fact they were detained by Pakistani authorities appeared sufficient for Malaysian police to implicate them as being involved with regional militant group Jemaah Islamiyah (JI).

Just three days into the students' arrest in Karachi, Deputy Home Minister Chor Chee Heung told the press that "initial investigations" revealed that they were 'future leaders' of JI.

Since the students were later released by Pakistan without having charges being laid against them, the allegations should have proved groundless. For this reason, doubts have been cast over the legality and necessity of their arrests under the ISA.

To compound the matter, comparisons have arisen between the interrogation methods used by Pakistani and Malaysian security personnel. Interviews with two of the released students reveal stark differences.

Mohd Tarmizi Nordin, 16, said questioning did not exceed an hour in Pakistan, where the focus of foreign intelligence officials was more on his father's alleged activities than his own. (His father, Nordin Ahmad, is among 58 suspected JI members being held under the ISA.)

"They asked repeatedly about my father. They wanted to know about my father's alleged involvement with JI. They also asked how we (the students) were involved with the group," he said.

The other student, Ahmad Firdaus Kamaruddin, 18, claimed that the JI 'link' was made purely on the basis that the Malaysian youth were sharing a home with seven Indonesians, one of whom was Gun Rustam Gunawan, the brother of detained JI leader Hambali ( left ).

"(The security personnel in Pakistan) said I must be a JI member because Gun Gun was my friend. They also claimed that my studies were paid for by the organisation, and they questioned me repeatedly on my views on suicide bombing," he said.

Firdaus acknowledged that he knew about the relationship between Gunawan and Hambali but claimed that the subject had never come up for discussion among the students.

"Gun Gun was just like the rest of us. We just shared a house and we played football together. We knew that he was Hambali's brother, but he never mentioned his brother."

The duo said they were questioned twice more during their month-long detention. They received visits by a Malaysian High Commission official based in Islamabad, but no one from the Malaysian police force.

Violation of laws

After the kid gloves handling in Pakistan, the interrogation procedures and facilities in Malaysia came as a rude shock to the students who included four minors, their lawyers and rights activists.

From the students' accounts, the treatment and conditions to which they were subjected have probably violated universal standards and domestic legislation.

Tarmizi said he had to endure long hours of daily interrogation during the two weeks of custody in Malaysia.

"I was interviewed every day from 9.30am. Sometimes, it ended in the afternoon but at other times, it continued until late evening. My body would not be tired, but it was torture on my mind," he recalled.

"One person would sit in front of me and four behind me. I couldn't see what the four were doing."

Firdaus said that, in Pakistan, he shared facilities with two other students and had access to reading materials. In Kuala Lumpur, the police locked him up alone and left him with nothing to do between interrogation sessions.

The implication of such tactics, as the students' lawyers said, is the real possibility that innocent individuals may be coerced into admitting to 'crimes' which they did not commit.

Protection of minors

Under the UN Standard Minimum Rules for the Treatment of Prisoners, an instrument adopted by the General Assembly in 1955, all prisoners (regardless of nationality) are entitled to a basic standard of non-degrading and non-torturous treatment.

The same level of protection is extended to anyone arrested or imprisoned without charge. On no account are prisoners to be subjected to any re-education or rehabilitation exercises.

Under both international and Malaysian law, minors under the age of 18 cannot be held under preventive detention laws.

The UN Convention of the Rights of the Child , which Malaysia ratified in 1995, stipulates that states should not subject a minor to "torture or other cruel, inhuman or degrading treatment or punishment".

Article 37(d) of the convention says: "Every child deprived of his or her liberty shall have the right to prompt access to legal and other appropriate assistance, as well as the right to challenge the legality of the deprivation of his or her liberty before a court or other competent, independent and impartial authority, and to a prompt decision on any such action."

The Malaysian government is also bound by the Child Act 2001, which came into force only last year.

Edmund Bon, one of the students' lawyers, explained that the Act supercedes all other laws in relation to minors

"Since the Child Act was enacted after the ISA, Parliament is deemed to have in mind that it is specific legislation. (Therefore) it excludes the operation of the ISA for those below 18," he said.

The law, he added, provides for a minor to be brought before a specially constituted court for children within 24 hours of arrest. There are no provisions which allow for preventive detention.

The authorities are therefore deemed to have violated the Act when they arrested four under-aged students among the Karachi 13.

In addition, they excluded Suhakam from conducting monitoring visits, triggering a protest by commissioner Prof Mohd Hamdan Adnan.

While the spectre of terrorism remains a real security threat, circumstances involving the Karachi 13 bring out significant lessons for both the authorities and civil society groups in Malaysia.

Neither 'side' will let its guard down and so, cannot be expected to find neutral ground to negotiate their diametrically opposing viewpoints.

Reason and balance must be found elsewhere - in institutions like the courts and Suhakam, which must ensure that civil rights are respected even if civil liberties are not.