Is the Minister in Prime Minister Department Dr Rais Yatim's criticism of the Human Rights Commission of Malaysia (Suhakam) that it had acted out of line in calling for the immediate release of the seven reformasi detainees under the Internal Security Act (ISA) fair?

For that we have to look first at the functions and powers of Suhakam as stated in section 4 of its promulgating enactment, the Human Rights Commission of Malaysia Act 1999 (the Act). Suhakam can only validly act within but not outside the powers given to it under the Act.

Section 4 of the Act authorises Suhakam, on the complaint of aggrieved persons, to inquire into complaints regarding infringements of human rights. In conducting such inquiry, Suhakam is vested full powers to summon witnesses, procure and receive evidence.

To what end is Suhakam's inquiry and its findings supposed to serve?

The answer is in section 13(2) of the Act. It provides that where the inquiry discloses the infringement of human rights, Suhakam shall refer the matter, where appropriate, to the relevant authority or person with the necessary recommendations.

Two things should be noted here. First, there must be an infringement of human rights as determined by Suhakam in its findings after an inquiry. Second, Suhakam's role is purely recommendatory vis--vis the authorities.

If in calling for the release of the detainees, Suhakam was merely playing its recommendatory role as empowered by the Act, it must have proceeded upon a prior assumption (without conducting a full inquiry) that there had been an infringement of human rights of the detainees the moment the Internal Security Act 1960 (ISA) was invoked against them. Is this a correct assumption? I don't think so.

This is because the ISA, as what Rais said, was "part of the law of the land, provided for under article 151 of the Federal Constitution" along with other emergency regulations that may be invoked when security and public order are threatened. Fundamental liberties as protected by the Constitution are specifically subject to abridgement by the ISA so that technically neither the ISA nor the government's act of invoking it can, in law, be considered inconsistent with the Constitution or an illegal infringement of human rights.

It is true that in investigating infringement of human rights, Suhakam can, under section 4(4) of the Act have regard to the Universal Declaration of Human Rights 1948, but it is clearly stated that it is only to "the extent that it is not inconsistent with the Federal Constitution".

In the premises, Suhakam has no valid basis to depict the government's act of invoking the constitutionally-sanctioned ISA against seven reformasi leaders as by itself an infringement of human rights for such a recommendation (for their release) to be proffered.

Dr Rais was therefore correct to say that Suhakam was acting outside its powers under its own founding Act - and was acting out of line - when it made that call.

It must however be recollected in favour of Suhakam that the infamous ISA has long been a piece of legislation mired in controversy and of late has been a divisive issue that more often than not arouses emotions rather than objectivity in either case of supporting or against it.

The ISA is draconian because it provides for preventive detention for up to two years with the possibility of renewal every two years. Any police officer may, without a warrant, arrest and detain anyone he has "reason to believe" has acted or likely to act in "any manner prejudicial to the security of Malaysia".

Under detention, the detainee has no right to counsel, he cannot meet and contradict his accusers, he cannot have the merits of his case reviewed by judicial process and basically everything depends on the bona fide and the authorities and police acting in good faith.

The government has for long justified the ISA on grounds that it is necessary as a preventive measure to maintain public order and national security in a country like ours which is a kaleidoscopic panorama of different races, religions and cultures with their attendant sensitivities and prejudices that might on the slightest provocation by mischief makers ignite into public disorder and open conflicts.

I am sure that a lot of this is true.

We will never know how many triad society members and religious extremists have, through the expedience of the ISA, been removed from our midst for Malaysians to now enjoy the peace and stability that we are accustomed to, and, may I add, take for granted. (The Special Branch cannot and will not divulge the statistics.)

Likewise, we will also never know how many political dissidents and prisoners of conscience who had been snatched from their homes in the middle of the night and incarcerated without their right to be heard.

For the problem with the ISA is that it vests too much absolute discretion in respect of detention or renewal thereof in the Home Affairs Minister acting on the advice of the police to act bona fide and not mala fide . There are no checks and balances as from (say) judicial review of whether the minister or the police have acted reasonably in exercise of such wide and subjective powers.

Today, more than ever, in the wake of ex-deputy premier Anwar Ibrahim's black eye obtained from prison, the public mood is definitely not on the side of the authorities being counted on to act bona fide all the time. This is not including the many other stories of detainees of how they had been subject to cruel and unusual punishment: for one such, see Irene Xavier's story in ([#1] Licence to abuse [/#], April 14).

Hence, even if the authorities actually have valid reasons to detain (say) the seven reformasi leaders on grounds of maintaining public order and national security - in this respect one should not just summarily dismiss the intelligence gathering of our Special Branch which is reckoned to be one of the best in the world - the authorities just won't be believed by the masses, and all kind of accusations will be levied against them.

With its present capital of credibility being substantially depleted amongst some segments of the populace, whatever power the government exercises bona fide and in good faith under the ISA will be presumed mala-fide by this segment.

To be sure, I agree with Former Victorian (VI Class of 1968) in his letter entitled [#2] Dr M measures up OK, relatively[/#] (April 9), when he said that "other promising trends include the government's allowing the formation of a human rights commission" which is certainly a step in the right direction to promote transparency and uphold human rights.

Now with the establishment of Suhakam, it is empowered under section 12(1) of the Act to act on a complaint made to it by an aggrieved person including a family member of the detainee to inquire into allegation of the infringement of the human rights whilst detained under the ISA.

Under section 4(2)(d) of the Act, Suhakam is empowered to visit places of detention in accordance with procedures as prescribed for the places of detention and to make necessary recommendations.

Under section 4(3) of the Act, the person in charge of such places of detention shall not refuse the visit by Suhakam to any place of detention if the procedures provided in the laws regulating such places of detention are complied with.

Abuses of the detainees by detaining authorities are more likely if the latter feel that they could perpetrate these acts with impunity without being exposed. They have no assurance of exemption from exposure by virtue of sections 4(2)(d) and 4(3) of the Act that are a bulwark against such abuses.

Therefore, whatever detractors may accuse the Prime Minister or the government of abuses in the past, it must recollected in favour and to the credit of Dr Mahathir Mohamad and his administration that (whether it is due to necessity to counteract its slide in popularity or out of contrition), the establishment of Suhakam under the Act is an indicator that the government recognised the prevalence of abuse and the need to check it - and that alone constitutes one of the important milestones reached in the long journey to Democracy.

If Suhakam is empowered to inquire into abuses of detainees under detention and make recommendations to the government to stop these abuses, it, however, cannot go behind the Executive discretion and inquire whether it has reasonable grounds to detain a person in the first place under ISA. The Executive decision is not even reviewable by the courts.

This effectively means that whilst Suhakam is a checks and balances instrument against abuses of detainees' rights whilst under detention, it is not a checks and balances tool against an arbitrary Executive decision in the first place to invoke the ISA and detain an innocent person just because of (say) his contrary political beliefs or the threat of his person to the ruling class. This is as much a violation of human rights if and when such a thing happens.

Although public order is important, civil liberties of subjects are no less important when balancing the competing imperatives of public security versus individual rights in a democracy.

Upon this premise, if the ISA has to be retained on grounds of national security and public order - because we are living in a hotch-potch of racial and religious sensitivities that may be exploited by mischief makers - and preventive action is better than cure, then may I suggest two possible alternative safeguards to be built into the ISA through legislative amendments.

For example, the detention under ISA may be for a finite period of two months (extendable to four at the most) to facilitate police investigations on the expiry of which, if there were sufficient evidence of subversion, the detainees should be charged in open court under the normal laws of Penal Code or Sedition Act. If there were no sufficient evidence that is maintainable by way of proof in a trial by open court, they should be released unconditionally or subject to such conditions as may be necessary to prevent the suspected mischief from being perpetrated.

Alternatively, even if the detainee is not to be tried under the normal laws in open court, he or she should be entitled to have the ministerial decision to continue his detention subject to judicial review by a judge to examine whether the minister has reasonable grounds under the purview of the ISA to continue with the detention. In such a review, the detainee should be accorded the right to counsel.

As a layman, my suggestions may be naive. It would, however, be within the powers of Suhakam to on its own accord make studies of the ISA (investigate past abuses of it by the authorities) and make recommendations to the government to either repeal or amend certain provisions of it with the view to building in the necessary checks and balances by weighing the equally important imperatives of civil liberties against the security needs of public order.

The proper avenue to lobby for such repeal or amendments is the members of parliament, but as these representatives have lost the credibility of independence to assert the people's rights in this respect, Suhakam will do.

This need to review the ISA is urgent because even from the standpoint of the government, it is in its interest to do so when given its present state of credibility, and without the aforesaid checks and balances built into the ISA, it will be accused or suspected by a large portion of the public of mala-fide and abuse of power whenever it invokes the ISA even when it has acted bona fide in the interest of public order.

Most important, they will go in some substantial way to restore credibility and heal the rift of a divided nation caused by the trauma of the Anwar episode.

Such amendments to the ISA will (after the establishment of Suhakam) create yet another milestone in the country's journey to democracy.