The provision in the Internal Security Act (ISA) which gives the police arbitrary power to arrest and detain suspects for 60 days should be amended, says former Court of Appeal judge Shaik Daud Ismail.

Although there is still a need for the ISA in the country, Shaik Daud said the act needs to be reviewed to prevent abuses by the authorities, adding that the court should have a role in the issuance of warrants for arrest and detention orders under the ISA.

"If the police has something against anyone, they should lodge a report and go to court to apply for a warrant and detention order. At least the court will be objective and not subjective. The court will issue a detention order for a certain period, it does not matter how long.

"But more importantly, the reason for detention under the ISA will be on record. Now [however], the police seem to be working in darkness," he told malaysiakini in an exclusive interview at his residence in Bukit Damansara recently.

Shaik Daud pointed out that if the reason for detention is in the court's record, then it would be easier for the suspect or his family to challenge the warrant and 60-day detention. It would also prevent the police from arresting without valid reason.

He also questioned police treatment which is often abusive and inhumane when arresting and detaining ISA suspects.

"They (the police) come to arrest people at two, three o'clock in the morning and the family won't know where the suspect is. This is wrong. They should get proper orders from the court and arrest the suspect, if possible during the day. Why should you arrest people in the middle of the night when they are sleeping with their family?" he said.

Cruel acts

When referred to a report about a mother who was arrested under the ISA in the wee hours of the morning leaving her children alone without adult guidance, Shaik Daud said he could not understand why the police acted in such a way.

"If it (the report) is true, isn't that a cruel way to treat another human being? Why so zalim (cruel)? Is the suspect so horrible that [he or she has to be] treated with such contempt? Arrest should be done civilly and properly. If it's done in a proper manner and according to procedure, I don't think people will question the arrest," he said.

Asked if Attorney-General Abdul Gani Patail should call for the review of the ISA, he replied that only the government can make the decision and that Gani can only act upon the government's instructions.

However, when suggested that the government is unlikely to make such a call, Shaik Daud smiled and answered: "Yes, but you can never say. People change."

He added that sometimes the authorities fail to note obvious advice and tend to make a decision which is long overdue, like the recent move to review the Criminal Procedure Code (CPC).

"I had relayed to the relevant people a long time ago when I was at the AG's Chambers about the archaic provisions in the CPC. But nothing was done until now," said the ex-judge who is one of the ad-hoc members in the AG's Chambers' Law Review Committee on the CPC review.

On the establishment of the AG's Chambers' Law Review Committee, Shaik Daud said it is a good idea as it will pave a way for a proper Law Review Commission.

"We should see how well it works and if it is efficient, then maybe, they can make it into a proper and independent division. I may even suggest to the government to set up a division," he said.

Musa's Suhakam team

Shaik Daud also commended the previous team of the Malaysian Human Rights Commission (Suhakam) led by Musa Hitam for improving several issues related to legal and human rights.

"The former team seemed to have done quite well. I do not know why they removed the previous team. Commissioners like Anuar Zainal Abidin and several others seemed to make a lot of difference," he said.

Anuar, Prof Mehrun Siraj and Dr Salleh Mohd Nor were dropped from the new lineup while Mahadev Shankar declined to serve another term for health reasons.

He also voiced hope that the present team under the new appointed chairperson Abu Talib Othman will continue all the efforts started by Musa's team for the rakyat 's sake.

"Also, I think former judges should be given the chance to head or participate in such organisations. Judges are the champion of human rights and we have proved it in court. But it's unfortunate that people do not realise that," he added.

When asked to comment on ex-deputy prime minister Anwar Ibrahim's trials, Shaik Daud declined, stating that "everything that needs to be said have been said".

"But what I feel is that everyone must be given a fair trial and the freedom to present his defence in any way that he thinks fit, according to the proper procedure that is. Be him a gangster or a minister, he cannot be denied a fair trial. If there is enough evidence, we must convict him, but if it is insufficient then we must acquit," he said.

Strong case for prosecution

His experience at the AG's Chambers proved that the prosecution must have a very strong case when charging high-profile figures, he said.

"When you have a strong case, people cannot question your credibility or the credibility of your evidence," he stressed.

As an example, he cited the corruption trial of former Selangor menteri besar Harun Idris in which he was involved in both investigation and prosecution.

"We did our investigations thoroughly and were extra careful when prosecuting. At first people were angry at us for charging him (Harun) but as the case developed, the protest disappeared. Why? Because the evidence was strong and the case was good and thus the people had no chance to doubt the credibility of the prosecution or the court," he said.

He added that Harun's case is the most controversial case he had handled while he was at the prosecution unit and still remembered the tremendous pressure he and his team received from the public, especially from the Umno Youth members who protested against the arrest.

"On the first day, I had to be escorted to the court room because the place was full with Umno Youth members who shouted in anger at me. They were angry because they did not know head or tail of the case or what was going on.

"But once the matter came to court, they heard the evidence then slowly they realised that they could no longer support him. I had no problem [from them] after that," said Shaik Daud who was then a senior federal counsel at the Anti-Corruption Agency for four years.

When asked how he handled the strong public critics, he replied that he simply ignored the criticism and concentrated on doing his work properly.

This is the final part of a three-part series of interviews with former Court of Appeal judge Shaik Daud Mohd Ismail. Malaysiakini subscribers can read the full question-and-answer in the opinions/features section.