Today, 27th October 2011, the 24th anniversary of OperasiLalang, is different from previous anniversaries. It is the first anniversary after Prime Minister MohdNajib’sbold pledge on the 15th of September 2011 that the Internal Security Act (ISA) would be abolished.
Abolishing the ISA means abrogating detention without trial. It follows that even with the proposed anti-terrorism law there should be judicial scrutiny. Judicial scrutiny will in no way compromise the effectiveness of the police in protecting public security. On the contrary, intelligence gathering will have to be more thorough and professional. Likewise, the power of the Minister of Home Affairs to detain a person allegedly planning an act of terror should remain intact. Preventive detention of this sort in cases involving terrorism and violence is critical for saving lives and preserving public order.
However, the Minister’s decision should be subjected to judicial review. This is to ensure that regardless of the type of violence that a suspect is allegedly guilty of, his right to a fair and objective evaluation of the evidence against him is respected. For this purpose a special Security Court could be established headed by a retired Judge and two other persons one of whom could be a retired senior police officer knowledgeable in security matters. The panel would have complete access to all intelligence reports on the suspect and the suspect would have the benefit of legal counsel of his choice. Given the clandestine nature of terrorist operations, and the need to protect witnesses and informers, the proceedings could be in camera. The decision of the panel on whether the suspect should be incarcerated or acquitted would be final and non-appealable.
This approach upholds both the rights of the person and national security. The powers of the Executive in relation to investigation, detention and prosecution will not be curbed or curtailed. Yet, judicial authority in the service of human rights would also be recognised.
The concept of a Security Court proposed here will be confined to security cases related to terrorism and violence. Other threats to national security emanating from ethnic chauvinism or religious bigotry (as long as there is no resort to violence) should be dealt with in the ordinary courts. In this way we would also strengthen the role of the Judiciary which is important in a democracy.
There are of course discordant voices arguing for the retention of the ISA and detention without trialin order to combat communalism and bigotry. The last 24 years--- since OperasiLalang--- have shown us that detaining a communal agitator or a bigot will not change his thinking or his beliefs. In fact, some of those ex-detainees have become even more communal in their attitudes. Apart from addressing the root causes, it is through persuasive counter arguments, education,and the positive experience of multi-ethnic living that we will be able to reduce communalism. Laws such as ISA are of little use.
Dr. Chandra Muzaffar.
27 October 2011.