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The Far Eastern Economic Review
Issue cover-dated 19th July 2001

Legal Battle

When judges rule on use of the ISA to muzzle dissent their independence will also be at stake

By Lorien Holland/KUALA LUMPUR

MALAYSIA'S GOVERNMENT asserts that it is under assault from militants bent on using violence to overthrow its lengthy rule. On July 6, it made its twelfth arrest in as many weeks to counter that threat. But like the eleven before him, the detainee was not some hardcore revolutionary. He was a 22-year-old business-management student from Kuala Lumpur's University Malaya.

His arrest under the Internal Security Act, which allows for detention without trial, stoked growing anger at the government's heavy-handed behaviour. Elizabeth Wong, secretary-general of the independent National Human Rights Society, said that non-governmental organizations critical of Prime Minister Mahathir Mohamad's administration would be the next targets. Even the government-funded Human Rights Commission could scarcely contain its indignation. It warned against abuse of the ISA and urged the police to show grounds for the arrests by charging detainees in court.

These criticisms have not, so far, deterred the government. Six of the 12 people arrested under the ISA since April have been sent to a special detention camp without details of their charges being made public. While four others have been released, two students remain in police detention and under ISA investigation.

Some government politicians link the case of the two students to a fire that destroyed a building on the University Malaya campus on June 29 only days before a visit by Mahathir. Police have yet to rule out arson, although faulty wiring may prove to be the cause. The more probable reason for the students' detention is their opposition to the use of the ISA--Mahathir has repeatedly warned students to keep out of politics.

"The government doesn't know how to deal with the students. It can't win their hearts so it uses threats . . . and the ISA is the perfect machinery for that," says lawyer Ahmad Shabrimi Mohamad Sidek, a former student leader who was briefly held under the ISA in 1998.

Still, the government's use of the ISA against students, social activists and opposition politicians is not going unchallenged. The judiciary, led by new Chief Justice Dzaiddin Abdullah, appears intent on reasserting a degree of independence. On August 6 Malaysia's top three judges and two other federal judges will preside over an extraordinary session of the court of final appeal to hear arguments against the arrest of five of the ISA detainees. Putting five top judges on a case, instead of the normal three, means a significant judicial matter is at stake: In this case, the issue is whether the judiciary can review police detentions under the ISA.

While some in Malaysia's administration privately support a more active judiciary, others worry that a court defeat would undermine the government's legitimacy. They do not want to see a resurgent judiciary ahead of a series of forthcoming appeals related to the corruption and s###my convictions of former Deputy Prime Minister Anwar Ibrahim. Thus, the government's lawyers say judges have no right to review any detentions under the ISA.

But in late June a lower court judge ordered the release of two of the 12 recent ISA detainees on the grounds that the police acted in bad faith in detaining them. Lawyers for the ISA five hope the court of final appeal will confirm that verdict next month.

Lawyer Malik Imtiaz Sarwar argues that the police detention under the ISA was conducted in bad faith. "The detainees were portrayed as militant activists intent on overthrowing the government by unlawful means, but they were detained for purposes other than those stated," he says. Evidence for this comes from the detainees themselves who allege that issues such as militant revolution were not even brought up by interrogators, who instead concentrated on politics and alleged sexual impropriety.

The appeal involves complicated legal points. If the judges decide in favour of the ISA five, it is unclear if they will risk direct confrontation with the government by ordering their release. Back in 1988, Mahathir sacked three top judges, including the chief justice, after the judiciary ruled against the government in a string of court cases. Not surprisingly, a more government-friendly judiciary followed, and its current steps towards greater independence remain tentative.