You can be a murderer, rapist, or any criminal of the worst kind, and you're given a trial. You are even allowed bail, except for special cases or those involving the death penalty. And the trial cannot proceed if you are not well and cannot be present in court.

"All that goes out the window when it comes to the ISA," said human rights lawyer R Sivarasa last Saturday at a forum on the Internal Security Act (ISA) viewed from the perspective of human rights.

The ISA allows for detention without trial in two stages - an initial detention of up to 60 days upon the authority of the police and then a two-year renewable order by the authority of the home affairs minister. During the first 60 days, detainees are typically held in solitary confinement and denied any contact with lawyers.

The right of ISA detainees to be fairly charged and tried is restricted not only by the provisions in the ISA for indefinitely renewable detention without trial, but also by a 1988 amendment removing the jurisdiction of courts to hear habeas corpus petitions from ISA detainees.

( Habeas corpus is a writ ordering prisoners to be brought before a court or a judge to ascertain whether their detention is lawful.)

The longest ISA detainee, Sivarasa related, was arrested in his 20s, locked up and forgotten until Operasi Lalang detainees 'discovered' him at the Kamunting detention centre in Perak.

"This is what we have done: Without proof of guilt of any offence, we have imprisoned a man for 16 years."

However, Sivarasa was quick to point out that torture is not just about physical beating or how long one is jailed.

"The ISA can reduce you to a shivering hulk, a wreck of a person, without physically touching you."

The endless interrogation that a detainee is subjected to, he stressed, is not about investigating any crime committed, but "to put this thought in your head ... that they can do anything to you".

"It's about breaking people," he told the 100-odd audience, some of them university students, at the forum organised by the Institute for Policy Research (Political Education Unit) at the Selangor Chinese Assembly Hall in Kuala Lumpur.

Alternative viewpoint

Illustrating Sivarasa's point, another speaker, lawyer Ahmad Shabrimi Mohamed Sidek who was detained in 1998, related how the ISA was used and abused in his case - from the hasty, almost haphazard manner of his arrest to his experience being interrogated.

Then the secretary-general of the National Muslim Students Association, Ahmad said all he had done was to offer an alternative viewpoint to that of the mainstream with regard to the ISA arrest of then deputy prime minister Anwar Ibrahim.

As editor of Suara Mahasiswa , a newsletter for undergraduates, he had submitted that Anwar, accused of abusing his powers and committing sodomy, was not guilty until proven in a fair court.

Ahmad, who was 23 then, said he was lucky to be spared the physical torture that other detainees went through as his interrogators concluded that he was just a "naive student who doesn't know much".

He also 'escaped' further torture by applying what he had read of how previous detainees survived - by pretending to crack down right before they reach their breaking point.

Objective test

Noting that there is increasing public awareness and opposition on the issue, Sivarasa, who has been dealing with the ISA since 1987 when Operasi Lalang - a government clampdown that saw the arrest of 107 opposition leaders, social activists, religious leaders and educationists - is optimistic that change is in the air.

"I feel confident that not too long more, one day, we'll be meeting in a forum like this, celebrating the last days of ISA," he said, to applause from the audience.

Sivarasa countered the oft-repeated excuse that issues of human rights are based on 'western values'.

"Malaysians have the greatest religions in the world, and all say there must be proper judgment before a person can be punished for any crime committed.

"It's not about western values. These are our own spiritual and religious traditions," he said.

He cited the extreme example of Irish Republican Army suspects who, for all the violence and damage to public property and lives they have are associated with, are given legal access after a few days under detention.

Additionally, there was a similar act in South Africa that was removed in 1994 after apartheid was abolished, but "even in the darkest times of apartheid, judges were prepared to intervene in ISA arrests".

Referring to a writ of habeas corpus , he said South African judges would require the police to show some evidence in affidavit form of the threat to national security before the detention can be accepted.

"Even in South Africa, judges do objective test."

(Objective test, or rational basis, is a test of constitutionality of a statute, asking whether the law has a reasonable connection to achieving a legitimate and constitutional objective.)

"Our judiciary, on the other hand, has a very 'hands-off' approach and virtually gives the executive a blank cheque to detain suspects," he said.

Sivarasa said for such cases all over the world, the detainee's presence is required, but that has not been the situation in our courts since Operasi Lalang .

It must be noted that a recent exception was when the Shah Alam High Court judge Mohd Hishamudin Mohd Yunus allowed the habeas corpus writ by two ISA detainees and ordered for their presence in court.

The judge had said, "It must not be forgotten that the detainee is a party to the proceeding and the cardinal principle is that every detention is prima facie unlawful and the burden of proof is on the detainer to justify it."

Malaysian-made law

Also speaking at the forum, Human Rights Commission deputy chairperson Harun Hashim said in terms of basic human rights, there is no question that the ISA is an abomination and should not exist.

"That is why when the seven people were first arrested under the ISA, Suhakam issued the statement that they should released and tried in the open court."

He outlined the history of the ISA, debunking the myth that it is a colonial legacy despite being an extension of the British's 1948 Emergency Regulations that were designed contain the communist threat to national security then.

The ISA was actually passed after the Federal Constitution was established in 1957, and therefore, Harun said, "Malaysians made this law".

Though the communist insurrection ended in 1960 and the State of Emergency was lifted, the government then, on the basis of Article 149 as amended, proceeded to enact the ISA.

Unlike the Emergency Regulations, regarded as extraordinary measures which automatically lapsed on an annual basis, the ISA is a permanent law.

"The ISA," Harun quoted, "is an Act to provide for the internal security of Malaysia, preventive detention, the prevention of subversion, the suppression of organised violence against persons and property in specified areas of Malaysia, and for matters incidental thereto."

Besides the indiscriminate use of the ISA on persons that were not its intended targets, Harun also noted that there is no adherence to the precondition of "specified areas".

"The big question is," he asked, "How is ISA still relevant today?"

The former Supreme Court judge related that during the times when he was on the bench - in the 1970s and late 1980s through early 1990s - when the courts made proactive decisions, the executive would rush to Parliament to amend the laws. It is worth noting that one of the amendments to the ISA was the stipulation disallowing judicial review, he said, adding that the Act has been amended 19 times, each time dealing a worse blow to human rights.

He said while a repeal is not possible, what can be done is to "control it further, reduce it, make it more answerable and accountable, limit its use to specific functions".

Nevertheless, Harun also said that the government needs some "ISA-like laws" to control unexpected situations such as mob attacks.

"Some of such laws are necessary, but as to who uses them and how they are used is a different matter. There must be somebody to check this. The ISA is so easy to abuse, leading to dictatorship. If you have the wrong person at the top, you've had it," he said.

Political tool

Harun's view on the necessity of 'ISA-like laws', however, was challenged by Sivarasa, who said that in situations pertaining to public order the full power of the law is already behind the police anyway.

"Public order situations should be addressed by public order laws, not emergency-type laws," he said.

"There are enough laws to deal with emergency cases. Article 150 of the Constitution gives full power to the government [to declare a state of emergency when national security is threatened]."

He said the Universal Declaration of Human Rights, too, allowed for such laws to be applied and the suspension of human rights for a limited period in a genuine emergency when the life of a nation is threatened.

However, he pointed out the dangers of Article 149 - which allows laws that justify detention without trial such as the ISA and Dangerous Drugs (Special Preventive Measures) Act - stating that when "that kind of emergency power (is) given to the government in normal times, that law will be abused".

Sivarasa maintained that the ISA is "a political tool that can be used anytime when the authorities are challenged or feel they have to be accountable to the people".

The ISA acts, at the first stage, as an overhanging threat "to make sure all of us are frightened of it, scared to step out and make a change".

"The next step would be to make a real arrest. Arrest 10 people and the rest would be quiet."

He said the only way to fight ISA is to fight the fear of it.

"If they have succeeded in making us frightened and silencing us, then the ISA has worked.

"We must not have that fear," he stressed. "We must know it and be prepared to go through it.

"Any other approach means the dictators who want ISA have won."