This is in reply to Political Observer's [#1] In defence of Suhakam [/#] (April 18). It is true that one part of the functions under section 4(1)(b) and (c) of the Suhakam Act is, as what the writer said, to "advise and assist the government in formulating legislation and administrative directives and procedures and recommend the necessary measures to be taken; and recommend to the government with regard to the subscription or accession of treaties and other international instruments in the field of human rights".

The other function under section 4(1)(d) of the Act is to inquire into complaints regarding infringements of human rights.

It is of paramount importance not to mix up and confuse Suhakam's function of (1) advising the government on how to bring local laws in conformity with international treaties from that of (2) its other function of investigating human rights infringement.

It is wrong for the writer to say that Suhakam's call to the government to release the detainees under ISA is a function under (1) aforesaid. I contend that it is related to function (2).

I had mentioned in my earlier letter ([#2] Milestones in journey to democracy [/#], April 17) that it was perfectly legitimate for Suhakam to recommend to the Malaysian government to repeal or amend the Internal Security Act (ISA) so as to bring it in line with the spirit of international treaties such as Declaration of Human Rights 1948. But until such time the ISA is actually repealed, it is still a constitutionally sanctioned law of the land that is in force.

To recommend the government a repeal of the ISA pursuant to its functions under section 4(1)(b) and (c) is a very different function from Suhakam's call to the government not to invoke the ISA on the seven reformasi detainees or to release them. The latter implies that Suhakam had already prejudged that the ISA and invocation thereof by the government would per se constitute an infringement of human rights with which it would be concerned under section 4(1)(d) of the Act.

At the risk of repeating what I already stated in my earlier letter, the ISA is sanctioned by the constitution and is law. A lawful act (of detaining) cannot, at the same time, constitute an infringement of human right.

Section 4(4) of the Act clearly stated that for its purpose of divining the scope of human rights, "regard shall be had to the Universal Declaration of Human Rights 1948 to the extent that it is not inconsistent with the Federal Constitution" - and our Federal Constitution specifically abridges (by the ISA and other essential regulations) fundamental liberties in exceptional cases of imminent danger to public order and security (as determined by the authorities).

Much as my personal sympathies are with the detainees and subjecting the ISA to more transparency by way of judicial review, it cannot change the objective fact that the invocation of the ISA by the police was not by itself a human right infringement of which Suhakam should immediately concern itself and make the recommendation to the government to release the detainees.

Unless Suhakam could otherwise show that it has evidence or facts to contradict the broad outline of what IGP Norian Mai said was the reason for ISA, Prime Minister Dr Mahathir Mohamad would be right to say that it was an issue of security and security was strictly a police matter and responsibility of the police - and not Suhakam's.

It has not become a human rights issue yet - not at least until it could be shown for a fact that the government's grounds for detention (to prevent public disorder) were baseless or if it could be ascertained from Suhakam's investigations that any detainee had been subject to cruel punishment whilst under ISA detention.

Suhakam should not, at this moment, make matters worse by writing to the Minister in the Prime Minister's Department, Dr Rais Yatim in request of a clarification of what Rais meant by saying that the Suhakam had failed to understand its role (see The Star 's report on Suhakam chairperson Musa Hitam's statement on April 18).