What is the real significance of the Security Offences (Special Measures) Bill 2012 tabled in the Dewan Rakyat on April 10 2012? The Bill is one of those extraordinary examples in history--- in the history of any nation--- of the Executive voluntarily surrendering its power to the Judiciary. The power to detain a person without trial under the Internal Security Act (ISA) was, in a sense, the ultimate expression of unfettered authority. Now the government of Dato Sri Najib Tun Razak has decided to relinquish that authority in the larger interest of the nation and the people.
The implications of the abolition of the ISA and detention without trial are manifold. One, it demonstrates respect for the rights and dignity of the human person. No Malaysian has to fear any more the Executive’s arbitrary exercise of power in the guise of national security or political stability. If a person is deemed to be a threat to national security because of his alleged involvement in organised violence or economic sabotage or espionage or in some attempt to overthrow parliamentary democracy, he will be arrested and investigated for a maximum of 28 days, and if there is evidence against him, he will be produced in Court. It is a Judge--- not a Minister--- who will decide his fate based upon the law. It is equally significant that the Bill states explicitly, “No person shall be arrested and detained ... solely for his political belief or political activity.”
Two, the Bill also enhances Executive accountability. The Police as the Executive’s arm will have to conduct a thorough investigation with all the instruments of the law at its disposal within a specific time-frame. If there is a case against the alleged security offender, the Public Prosecutor will have to convince the Judge. It is this that makes the Executive answerable to the Judiciary.
Three, the Bill also provides for a degree of parliamentary oversight. It says that the 28 day period of investigation “shall be reviewed every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of this provision.”
Four, the Bill, it is so obvious, strengthens the Judiciary. Since its role is to protect and preserve justice, the Judiciary will now be able to play that role in the context of determining who is and who is not a threat to national security and public order.
Five, given the positive impact of the Bill upon all three branches of government--- the Executive, the Legislature and the Judiciary--- it will undoubtedly reinforce the rule of law and improve democratic governance.
While contributing to democratic governance, the Bill is also cognisant of the importance of protecting the well-being of society as a whole. Provisions relating to sensitive information, interception of communication, electronic monitoring device, protected witness and hearing in camera, testify to this. Nonetheless, even in these spheres, there is some check and balance to ensure that the scope for abuse is minimised.
It is indisputably true that the Bill viewed in its entirety marks a break with the past. Indeed, the Security Offences (Special Measures) Bill, juxtaposed with a number of other measures introduced by the Prime Minister in the last seven months, heralds a new era in Malaysian politics. Three Emergency Ordinances have been abolished; laws pertaining to restricted residence and banishment have been rescinded; the annual renewal of licence requirement in the Publications Act has been removed; and the Universities and University Colleges Act has been amended to allow for student participation in party politics. There is also now a Freedom of Assembly Act which is a fairer reflection of Article 10 in the Malaysian Constitution than what the Police Act had provided for. The 32 recommendations adopted by the Dewan Rakyat in December 2011 and in April 2012 aimed at improving the electoral system also promise to enhance freedom and democracy in our country.
Of course, some of these amended laws can be further reformed. There are other laws such as the Sedition Act and the Official Secrets Act which should also be abolished or at least modified drastically.
But no one can deny that the reforms that have taken place in recent times under Prime Minister Najib’s leadership embody the most comprehensive, the most far-reaching agenda for political change that the nation has known since Merdeka. These changes, epitomised by the abolition of the ISA and detention without trial, if properly implemented, will accelerate the sort of political transformation that many right-thinking Malaysians are committed to--- a political transformation that will give substance to the exercise of freedom with responsibility.
Dr. Chandra Muzaffar is Chairman of the Board of Trustees of Yayasan 1Malaysia.
11 April 2012.