The arrest of 10 persons (including PAS spiritual leader and Kelantan Menteri Besar Nik Aziz Nik Mat's son) in a span of three days has provoked me to rethink about the Internal Security Act (ISA), and the following thoughts occurred to me.

1) ISA is intended to be preventive. This means that the crime has not yet occurred but threatens to occur and the ISA prevents it.

2) That ISA involving incarceration and curtailment of freedom is a punishment is not in doubt.

3) When should a citizen be punished? Justice dictates that he should be punished when he is responsible for and has committed a crime. But in ISA's case, the crime has not yet been committed though according to the state, the threat to commit it exists and hence it ought to be prevented, prevention being better than cure.

4) It follows then that ISA is based on utility and expedience, and not justice. It is not meant to be a just law. It is meant to be a law for utility and expedience. It is supposedly to be justified by the higher good - national security.

5) Fine, never mind that it is not a just law but even if it were designed for utility and expedience of the state to prevent crimes, its invocation must at the least not be unjust.

6) When then can we ascertain that its exercise is not unjust? So how do we know that the police are really acting on some real evidence - not of crime commission itself - but of a real likely threat to a commission of crime in the near future, contrary to national security?

7) We naturally demand that evidence of a threat to commit crime being adduced by the state in court for the judge learned in law to review and make sure that the threat is real and is not fabricated or imagined.

8) The state says no. It has a plausible reason. All kinds of surveillance (from electronic surveillance to informers) are used to monitor, track and determine subversive elements and their subversive activities. A call for judicial review of evidence will require the police to disclose their sources of information, identities of informers and modus operandi of surveillance.

9) There lies the dilemma: the state has a valid reason not to divulge its evidence in open court. Besides, many subversive characters are equally clever in carrying out their operations in a manner that leaves little evidence that can pass the standard of proof required in the court, and they may well get away with it if they appoint clever lawyers in an open trial.

This is what the state cannot afford. It will be too late, there will be too much damage, harm and costs when the crimes are eventually carried out against national security. Hence the overriding need to resort to preventive detention.

10) This is the state's justification, and in its own way, a plausible and reasonable justification. The dilemma is that citizens of a democracy also have valid justification against the state's one in demanding the abrogation of the ISA.

In a democracy and an open society, the following values are held dear: Everyone is entitled to his/her liberty which cannot be arbitrarily taken away from him/her without being afforded a fair opportunity to be heard and to defend himself/herself before an independent party like a court's judge or a judicial tribunal, it being manifestly inadequate that he/she be judged alone by the party accusing, that is the police and the state.

The authorities will say that they are fair and professional (being civil servants and paid from taxpayers' money) and are not beholden to the political masters.

This, however, is not reassuring enough because firstly when they have aspirations to climb up in rank, they can be beholden to the whims of their political masters on whom their promotion depends.

Even with the best of intentions, the police may make a genuine mistake of judgment. If police work is beyond review, there is no check against abuse of powers, if and when it occurs.

11) This being the case, how then does one reconcile the opposing positions of the state and the rights of subjects highlighted above?

12) I feel that the state has to give way a little bit. This is because no matter how sincere the intentions in execution of preventive detention for national security, it is pointless if ordinary citizenry perceive otherwise.

13) It is public perception of government's credibility that constitutes the basis on which the legitimacy of preventive detention depends. The lower that stock of credibility is, the lesser the legitimacy of the exercise of preventive detention becomes.

14) It therefore becomes necessary to allay the concerns of citizenry, re-establish credibility and legitimacy by building in safeguards to the ISA without compromising at the same time the police's sources of information and intelligence gathering.

15) I would think that a satisfactory compromise will run along the following lines:

a) In war or civil unrest, the Executive's discretionary powers of preventive detention may, as upheld by present laws, be wide and subjective in the sense that the court cannot review the legitimacy of its exercise of detention powers.

b) In peacetime, judicial review of reasonableness of the Executive's decision to detain ought to be permitted.

c) In such judicial review, the procedural standards of evidence are not the same for normal cases. In ISA cases, the authorities should not be compelled to disclose to the court identities of informers and methods of surveillance.

d) In such ISA cases involving national security, the standard of proof required by the court of the state will not be the normal (more stringent) one of proving guilt of crimes committed beyond reasonable doubt. In ISA cases, it should be one based on the lesser standard of balance, i.e. when all evidence is on the table, it supports the state's inference that the detainee actually poses an imminent threat to act even though at the time of arrest, no crime has actually been committed.

e) The ISA should also be amended to define with precision what is and what is not acting contrary to and subversive of national security.

16) With these legislative and procedural safeguards being incorporated in amendment of the ISA, demands for national security may be met halfway as a compromise with the demand of citizenry against arbitrary invocation of the ISA and abuse of power by the government.