Muslims and Christians share the parable of Jonah being swallowed by a great fish. Jonah in distress in the deep, dark belly of the animal, came to terms about his destiny to bring truth to his people. He was then delivered forth from the fish's belly (The prophets:87-88). His people were redeemed (Yunus:98).

I was reminded of this ancient story when a student was detained under the Internal Security Act (ISA) recently. Khairul Anuar Ahmad Zainuddin, who is known as Jonah to his friends, was detained when he accompanied several friends to the Dang Wangi police station on July 5.

It was as if Khairul had been swallowed by a deep darkness. No one except the police and the home affairs minister know where Khairul is and his fate will remain a mystery for the next 60 days.

Unlike the well-loved parable, no one would really be redeemed under this preventive detention law. What we have known from the April ISA detentions is the torture of detainees through sleep deprivation and relentless interrogation during the first 60 days.

Every new arrest registers an unpopular vote against the state and us, the people who have allowed it to happen.

Unbridled power

Khairul was allegedly involved in a peaceful assembly near the National Mosque on June 8. From the complaint lodged by a group of students to Suhakam on June 30, there was no untoward incident during that assembly except when police came to break it up and subsequently detained six students. The rabble if any, was police instigated.

Even if for the sake of argument the state insists on pressing charges against peaceful protestors, there are just so many laws to choose from, the Penal Code, the Universities and University Colleges Act (UUCA) and more. Police are want for choice! The police choose the ISA. This for starters, merely demonstrates the unbridled power at the hands of the police and the home affairs minister.

The original ISA laws which complemented the total war agenda against the communists and alleged anti-nationalists had some safeguards allowing a certain degree of investigation into the reasons of the state.

This is in keeping with the principle that the life and liberty of a person is paramount and is protected by law as a basic human freedom. Over the years, these were whittled down through Parliament amendments.

It is ironic that in times of peace, post the communists surrender, these safeguards no longer exist. Under the ISA today, police are not obliged to name the alleged crime. Past accounts of detentions tell us that detainees are not charged for any crime for the length of their detention.

Police and the home affairs ministry are allowed to be evasive about national security reasons. The past ISA detention of passport forgers and tekongs (a term used for those who ferry illegal immigrants into the country) say that national security is anything the state wants it to be.

Pertinent question

National security is too important an issue to be left in the hands of the police and the Home Ministry. An informed civil society with responsible and independent institutions including a free press serve as safeguards against government abuse.

Governments take the stand that national security laws are needed to protect institutions and the well-being of law-abiding citizens. Human rights defenders insist on clear definitions of 'national security' as lack of transparency in these matters are in themselves a subversion of democracy.

Vague notions of 'national security' have in fact facilitated human rights violations and the suppression of legitimate political debate and dissent.

The pertinent question in the debate between freedoms and national security is: What is a legitimate national security interest?

Judging from our forgers and tekong experience, we definitely have some way to go in thinking clearly about these issues. However, a great deal has been done elsewhere on the inquiry of a legitimate national security interest.

Siracusa principles

In 1985, the International Commission of Jurists invited a group of experts to draft the Siracusa Principles on the Limitation and Derogation Provisions in the International Covenant on Civil and Political Rights. The Siracusa Principles 29-32 address national security:

29 - National security can be invoked to justify measures limiting certain rights only when they are taken to protect the existence of a nation or its territorial integrity or political independence against force or threat of force.

30 - National security cannot be invoked as a reason for imposing limitations to prevent merely local or relatively isolated threats to law and order.

31 - National security cannot be used as a pretext for imposing vague or arbitrary limitations and may only be invoked when there exist adequate safeguards and remedies against abuse.

32 - The systemic violation of human rights undermines true national security and may jeopardise international peace and security. A state responsible for such violation shall not invoke national security as a justification for measures aimed at suppressing opposition to such violation or at perpetrating repressive practices against its population.

The Siracusa Principles snowballed and provided the impetus for sharpening further the principles of international and regional instruments. The Principles have informed decisions of high-level meetings.

In 1995 for example, the United Nations (UN) rapporteur on freedom of expression stated in his report that for purposes of protecting national security, the right to freedom of expression can be restricted only in the most serious cases of a direct political threat to the entire nation.

Universal rights

The peaceful assembly on June 8 outside the National Mosque was also an exercise of peaceful expression for the repeal of the ISA.

From this, we can surmise that action against Khairul was taken on the police understanding that the 'national security' threat is the act of a peaceful protest against a national security law.

The right of peaceful assembly and expression are rights in the Federal Constitution and of every human rights instrument at the regional and international levels. These are universal rights.

Any restriction of these rights (including 'national security') must not encroach upon or jeopardise the rights per se. In any case, a legitimate national security interest has to meet some criteria in order to balance the interests of civil society in a 'national security state'.

As affirmed in the Siracusa Principle 12, the burden of proof of justifying a limitation upon a right lies with the state.

The UN human rights committee in a series of decisions, has made it clear that governments bear the burden of proving, with specific evidence, that restrictions on freedom of expression and other rights are necessary to protect the state security or some other legitimate interest.

These are the trends we should be moving towards as we stand on the threshold of the 21st century. There should be no turning back to the dark ages of pre-independence lapses.