Minister from the Prime Minister's Department, Mohammad Nazri Abdul Aziz's comments on the ISA may seem to shine a light for those who worry about the abuse of the ISA. Nazri says that detainees should be tried or released. However, his stance ultimately misses the point.

The inference one can draw from Nazri's comments is that the ordinary criminal law is adequate to deal with ISA detainees. If so, the question arises as to why the ISA is being used at all. And when this question is addressed, one is invariably confronted by the persistent argument that the ISA is no longer valid because it has lapsed along with the passing of the communist insurgency. Nazri doesn't deal with this point. Instead, he perpetuates the false view that the ISA is a valid law.

The argument for the invalidity of the ISA is straightforward. It is not a valid law in virtue of legal standards internal to the Malaysian legal order itself. These standards reside in the common law as well as in the Constitution. For present purposes, a brief look at the Constitution is enough to establish the point.

The ISA finds its constitutional basis under Article 149 which allows Parliament to enact 'special' anti-subversion legislation as a response to an existing and identifiable threat to the security of the country. The threat must be posed by a 'substantial' body of persons who have acted in very specific ways denoted under Article 149.

In addition, any legislation passed under Article 149 is 'special' (see heading of Part XI) because the Article allows a law that is 'inconsistent' with the protection of life, liberty, and procedural due process protected by Article 5 of the Constitution. Thus, Article 149 legislation inflicts a cost to Article 5.

I take the purpose of specifying Article 149 as a 'special' power as an unfortunate departure from our constitutional commitment to the right to life, liberty and due process. If so, Article 149 legislation can only be justified in highly specific circumstances. And once enacted, it must be applied in a controlled and limited fashion. This is to minimise the negative effects Article 149 legislation like the ISA might generate on the right to life, liberty and due process.

Finally, to mark this departure, Parliament must recite that there is a threat which falls within the ambit of the sort of security problem contemplated by Article 149. And the recital must state that the legislation is a response to that threat.

The upshot is that Article 149 permits only a specific legislative response to a specific threat [see Nicole Fritz & Martin Flaherty, Unjust Order: Malaysia's Internal Security Act (New York: The Joseph R Crowley Program in International Human Rights, Fordham Law School, 2003) on page 40]. Placed in context, the expiry of the insurgency means that under our Constitution, the ISA lapses as law.

Nazri should draw on his legal education and call a spade a spade by admitting that the ISA isn't valid law. He should also force the point that any detention under the ISA is a violation of the rule of law. The rule of law requires that any exercise of state power can only be justified in virtue of existing valid legal norms.

As it stands, the continued enforcement of the ISA makes the government culpable of a deception about the rule of law because the ISA, which is invalid, is being marshaled as a cloak for the exercise of arbitrary power. This cloaking is intended to supply a fake legitimacy to what is really an abuse of power.

Nazri's comments, even if well motivated, make him partner to this deception. Perhaps Nazri is embarrassed that he defended the validity of the ISA last year when he debated Lim Kit Siang in the Selangor Chinese Assembly Hall.

Before I conclude it is necessary to note that our courts, like Nazri, have not sided with the view I've advanced. But I would argue that what the law properly requires is not exhausted by ministerial or judicial opinion. Courts may have the final word on declaring what the law is but that word can be fallible.

Legal practice embraces the idea that courts can be wrong and courts consistently alter their own views by overruling earlier decisions or by giving new and radical interpretations of previous cases. Moreover, the interpretation of legal norms is not limited to what courts think about the law.

Law is meant to afford stable guidelines for conduct which means that no institution can claim a monopoly over the enterprise of legal interpretation. Instead the constitution should be common currency for anyone to mount a challenge on the legality of state action.

Nazri can take the lead in getting the Constitution right and redeem himself more fully. In a 'caring society'( to use his own words against him), governments do not play fast and loose with the rule of law especially where the liberty of the legal subject is at stake.

Stop enforcing the ISA. It is not valid law.