The Internal Security Act, a freedom-threatening law which is used on occasion to keep opposition politicians in line, does not have the impact it once had. The government is as flummoxed as the opposition when it is invoked, and the predictable apposite views of the two sides demeans and devalues the debate. The ISA must be in the statute books to be used in extremis , when national security and threats of that kind are at stake. It is not to be used against political opponents, however tempting and easy it might be for those in power put through their paces.

It should only be used after a state of emergency is declared. The use of the ISA, as recently when 10 opposition leaders and political activists were detained, presumes one. But a dangerous one.

Technically, we are in several states of emergency, which remain on the statute books when the Constitution was amended to keep on the books all emergency proclamations not specifically withdrawn after Parliament meets. Prior to this, all emergency automatically lapsed unless retabled.

The government relies on this untenable fiction to justify the ISA's capricious use. If we are in a state of emergency, it makes nonsense of government attempts to attract foreign investment and promoting Malaysia as a desirable tourist destination.

In Sri Lanka, the proper norms are observed. A state of emergency is restricted to three months and automatically lapses if it is not extended. Sri Lanka faces a more serious political problem than Malaysia ever has, but it is more responsive to restriction of political freedom.

Preferred choice of weapon

The ISA should be used only on the specific instructions of the home minister after the Inspector-General of Police recommends that a man detained under normal laws be. The home minister cannot wash his hands off, as Abdullah Ahmad Badawi recently, and claim he knew nothing about the arrests. He is derelict in his duty if he did not order the arrests in the first place.

Unfortunately, the ISA is the preferred choice of weapon when the government wants to cow down an opposition that challenges every move it does. When it was invoked on the just dismissed deputy prime minister, Anwar Ibrahim, and the IGP followed that up with near-fatal karate chops and the infamous black eye, the government became defensive. Indeed, with that, the ISA lost its terror, with political activists and opposition politicians accepting it as one danger amongst many to contend with.

The government itself is troubled by its use. One detainee lost so much weight and refused to eat the urine-smelling nasi bungkus , his blood pressure rose alarmingly as his sugar levels dropped, that his wife was called to persuade him to eat. They had in the meanwhile moved him to an air-conditioned room with a television set.

But it did not help. It is unheard of for ISA detainees not to meet their families during the first 60 days of detention. The government's threat to teach the opposition a lesson got lost in its own confusion over the ground dissonance.

So, we have minister after minister shooting themselves in the foot with ill-thought comments that question their sanity, if nothing else.

Stinging judicial rebuke

Into this equation comes the stinging judicial rebuke. Mr Justice Mohd Hishamudin Mohd Yunus, a former DPP and generally regarded as a pro-government judge, sharply criticised the form of their detention. He raised constitutional issues which the government had not anticipated, and the Federal Court is due to hear arguments on this soon.

In allowing the habeas corpus petition by two of the recent ISA detainees, he further ordered the police not to rearrest them for 24 hours. Instead of releasing the other eight immediately, pending the appeal, the home minister ordered four of them to be detained for two years, with the remaining four released as the 60-day deadline neared.

It does not matter what happens now. The government is forced on the defensive as the ISA becomes a more contentious weapon in its hands to contain political opposition. The judge rightly raised the constitutional issues in how the ISA is used. The government cannot respond to it, so it diverts the issue to question his right to comment on what Parliament should do.

Its surprise is total that a high court judge who by a 1998 constitutional amendment is reduced to a functionary equal to a customs or police officer would dare question or challenge what he should not. That one judge did is bad enough. But the judgment he delivered had the support of many younger and newly-appointed judges.

Larger issues ignored

This is where the confusion begins. The government's hold on power is linked to the judiciary agreeing with the government in every matter it deems important. That is challenged. Mr Justice Hishamudin's comment that Parliament should look into the suitability of laws it enforces is taken to mean an interference. It does not. When Parliament is forced to debate important Bills given the members an hour before they are tabled, and rushed through on certificates of emergency, there is little time for discussion.

So, it is proper that judges who apply the law recommend what should be done. It is right they do. Indeed, they must. Instead of leaving it be and taking the statement for what it is, the de facto law minister, Dr Rais Yatim, and the deputy prime minister takes offence. But it is one way to duck the more important constitutional question.

All this comes back to an administration that ignores the larger issues this high court judgment spawns. It is difficult to see who is the worse off in this continuing struggle for the Malay mind. Those who went in will bear their detention as badges of honour; those who put them there cannot explain what the fuss is all about, while ducking for cover.

And it raises the larger political question of why the ISA is needed.