Malaysiakini Letter

Suhakam had every right to slam ISA

Gerard Lourdesamy  |  Published:  |  Modified:

I refer to the Jeffrey's letter [#1] Invocation of ISA: Suhakam has no say [/#] (April 21). Suhakam's call to the government not to invoke the ISA and to release the ISA detainees is within its powers as provided for in section 4 (2) (e) of the Human Rights Commission of Malaysia Act 1999.

In fact the said subsection (2) clearly states "For the purposes of discharging its functions, the Commission may exercise any or all of the following powers...(e) "to issue public statements on human rights as and when necessary".

I disagree with the writer for saying that Suhakam must first establish that there has been an infringement of human rights by the authorities in making the arrests before it can issue a statement calling for the release of the detainees.

Section 4 subsection (1) and subsection (2) should be read disjunctively for the reason that subsection (1) refers to the functions of the Commission while subsection (2) refers to the powers of the Commission.

This provision merely amplifies the distinction between jurisdiction and powers that can be found in most legislation creating statutory bodies. The long title to the Act again refers to this distinction.

As such there is no need for Suhakam to exercise its functions under section 4 (1) (d) of the Act to inquire into complaints regarding infringements of human rights referred to in section 12 of the Act before it can make a statement calling for the release of the ISA detainees.

As a matter of record, the commission has received complaints from the next of kin of the detainees on their arrests and continued detention under the ISA. It remains to be seen if the commission will invoke section 12 of the Act and conduct an inquiry.

While I agree with the writer that the ISA is a constitutionally sanctioned law of the country in that it abrogates some of the fundamental rights and freedoms as contained in Part II of the Federal Constitution, it remains an unjust law.

It is a law that is both draconian, in that in confers near absolute powers on the executive to detain persons indefinitely without trial and with little or no recourse to judicial review and secondly, that it can be misused for reasons of political expediency invoking vague allegations pertaining to national security.

The fact that the ISA is not subject to parliamentary scrutiny further enforces the argument that it is abhorrent to the concept of human rights. The ISA without any doubt violates the principles of at least three major UN human rights instruments namely, the Universal Declaration of Human Rights 1948, the International Covenant on Civil and Political Rights 1966 and the Declaration on the Protection of All Persons from being subjected to Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment 1975.

It is therefore, not surprising that successive governments here have refused to ratify these conventions. As such Suhakam was merely stating that the invocation of the ISA and the arrests of the reformasi activists under the ISA is in breach of general principles of law or elementary considerations of humanity as reinforced and amplified in these human rights instruments.

The commission never challenged the legality of the arrests and detentions under the ISA. The issue of whether the authorities acted mala fide in the exercise of its discretion in arresting and detaining the activists and the grounds thereof and, any allegation of torture, cruel, inhumane or degrading treatment while in detention are matters for Suhakam to address if any inquiry is conducted under section 12 of the Act subject to the restrictions therein in view of the habeas corpus applications filed by the detainees.

The Suhakam statement in fact aptly conforms with the purpose of the Act, " provide for the establishment of the Human Rights Commission of Malaysia; to set out the powers and functions of such commission for the protection and promotion of human rights in Malaysia..."

I disagree with the view of the writer that section 4 (3) of the Act, prevents Suhakam from commenting on the invocation of the ISA and calling for the release of the detainees. That provision is merely prescriptive in that the commission is empowered to take into consideration the principles enunciated in the Universal Declaration of Human Rights to the extent that it is not inconsistent with the Federal Constitution in carrying out its functions under the Act.

Section 4 (3) of the Act should be read in the context of section 2 of the Act which gives a restrictive definition of human rights as "the fundamental liberties referred to in Part II of the Federal Constitution".

The fact that section 4 (3) of the Act refers to the Universal Declaration of Human Rights is probably a tacit recognition by the government that some of the declaration's provisions constitute general principles of law or represent elementary considerations of humanity as I alluded to earlier.

The declaration itself is frequently referred to as part of the law of the UN. It is unfortunate that human rights is defined as such in the Act and section 4 (3) of the Act as it stands is reflective of the fact that our country has failed to ratify several major human rights instruments. In any event the ISA itself is a derogation to the fundamental liberties entrenched in the Federal Constitution and one must look at the spirit of the constitution as a living instrument rather than the dead letter of the law. Suhakam, it is hoped, will take a more progressive view of human rights than the executive and the courts.

Given the fact that there are sufficient provisions in the Penal Code to deal with the allegations made by the police against the detainees, it is bewildering that the 'strong' evidence which the police allegedly have cannot stand the scrutiny of a public trial subject to the due process of the law.

The authorities in addition have a plethora of other restrictive laws like the Sedition Act, the Emergency Ordinances, the Restricted Residence Act and the Banishment Act which they could have invoked under the pretext of national security rather than opting for the repressive ISA.

By comparison the accused in the Al-Ma'unah case seem to have been given the benefit of a public trial albeit under the unfair Escar (Essential [Security Cases] Regulations) procedure, on more serious charges of waging war against the Yang di-Pertuan Agong.

If the essence of the charge against the detainees is an allegation of conspiring to topple the government through violent means including the use of fire arms, then the detainees should be charged under the Penal Code or the Arms Act or the Fire Arms (Increased Penalties) Act, all of which prescribe serious punishments including the death sentence. This contradictory and confusing position on the part of the authorities merely gives credence to the suspicion and belief of many people that the ISA is being used for purposes other than national security.

Suhakam should be commended for its strong stand on the issue and for demanding its right of access to the detainees as provided for in section 4 (2) (d) of the Act given the difficult and restrictive conditions under which it is allowed to function.

It is indeed unfortunate that some people still take a myopic view of human rights; talk of the rights of the majority versus the minority view; of Eastern values as opposed to Western imposed standards of human rights; and of overriding national security interests in the dawn of the 21st century while people are demanding recognition of and respect for their rights, greater transparency and openness in government, respect for the rule of law and the independence of the judiciary, freedom of the press and for a more humanitarian approach in governance and administration. These demands, and not just material wealth, progress and well-being, are the hallmarks of a great nation.

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