If the Internal Security Act 1960 was an ogre that destroyed many lives, the new Security Offences (Special Measures) Bill 2012 is an octopus in whose tentacles Prime Minister Najib Razak's promised liberalisation suffers further smothering.
Last year's Public Assembly Bill 2011 was supposed to have kicked off Najib's liberalisation drive, touted in his Malaysia Day address of Sept 15.
What it did was merely to shorten the time frame for demonstrators to obtain police permits to stage protests.
It hadn't occurred to the powers-that-be that liberalisation means not having at all to obtain police permission to demonstrate.
Now we have another instance of cognitive dissonance: the new Security Offences Bill is supposed to be a substantive improvement over its predecessor, the ISA.
Actually, the bill attests the truth of the saying that looks can deceive. It's like seeing something by moonlight which can reveal the outline of a thing but not its true nature.
A close reading of the proposed new law's provisions would establish that in its details, it could enmesh a detainee in long periods of incarceration.
If detention without trial had rendered the Internal Security Act 1960 an abomination, continued detention after a court ordered release, which is a provision in the new law, would make a travesty of claims that the latter legislation is an improvement on the former.
Najib, in tabling the Security Offences Bill, blithely claimed the proposed new law is an improvement over the ISA because the grounds and means of an arrest under it are subject to judicial review.
"They [detainees] are free to file for writ of habeas corpus on the reason and means of their arrest," he told the Dewan Rakyat yesterday.
"In short, the power of judicial review has been returned to the courts, unlike in the ISA where habeas corpus is only applicable to the means of arrest," Najib expatiated.
Detention after acquittal
What the PM didn't mention is that there is a provision in the Security Offences Bill for continued detention by the police, if the latter deem fit, of a person freed by the courts.
True, the new bill provides for judicial oversight of executive fiat - the detainee can challenge his detention in court.
This seeming amelioration over the ISA is negated by the new law's permission for the executive to continue holding the detainee until the appeal process is disposed.
The improvement of judicial oversight is cancelled by the latitude given the executive to reassert its primacy.
Countervailing powers are the essence of constitutional government. In allowing for the executive to hold a freed detainee until the appeal process is completed, the balance of power is tilted in favour of the executive.
Theoretically, this indefinite detention renders nugatory all the improvements to the duration - the new law limits it to 28 days compared to the ISA's provision of 60 days - of the initial period of detention of a person by the police.
Detention after acquittal is marginally, not substantively better than detention without trial - the feature of the ISA that had rendered it odious.
This provision for detention after acquittal is the tripwire that prevents the Security Offences Bill from being what the government asserts it is: a vast improvement over its predecessor and one that strikes an optimal balance between the demands of individual liberty and the security concerns of the state.
The extent the hype about the new law masks its harsh reality is further inferred from the provision that allows police to intercept communications without judicial sanction when investigating a detainee for a suspected security offence.
The Human Rights Commission (Suhakam) has expressed its demurral over this clause which it says can "infringe personal liberty and the right to privacy."
"The provisions in the Bill as well as the amendments to the other relevant laws must strike a balance between national security and fundamental liberties and human rights," Suhakam chairman Hasmy Agam said in a statement yesterday.
Thus opposition MPs were not the only ones to remonstrate with the government that the Security Offences Bill does little to advance the cause of political liberalisation in Malaysia.
Suhakam and the Bar Council, which had earlier criticised aspects of the Bill, feel likewise.
Last year's Public Assembly Bill 2011 was supposed to have kicked off Najib's liberalisation drive, touted in his Malaysia Day address of Sept 15.
What it did was merely to shorten the time frame for demonstrators to obtain police permits to stage protests.
It hadn't occurred to the powers-that-be that liberalisation means not having at all to obtain police permission to demonstrate.Now we have another instance of cognitive dissonance: the new Security Offences Bill is supposed to be a substantive improvement over its predecessor, the ISA.
Actually, the bill attests the truth of the saying that looks can deceive. It's like seeing something by moonlight which can reveal the outline of a thing but not its true nature.
A close reading of the proposed new law's provisions would establish that in its details, it could enmesh a detainee in long periods of incarceration.
If detention without trial had rendered the Internal Security Act 1960 an abomination, continued detention after a court ordered release, which is a provision in the new law, would make a travesty of claims that the latter legislation is an improvement on the former.
Najib, in tabling the Security Offences Bill, blithely claimed the proposed new law is an improvement over the ISA because the grounds and means of an arrest under it are subject to judicial review."They [detainees] are free to file for writ of habeas corpus on the reason and means of their arrest," he told the Dewan Rakyat yesterday.
"In short, the power of judicial review has been returned to the courts, unlike in the ISA where habeas corpus is only applicable to the means of arrest," Najib expatiated.
Detention after acquittal
What the PM didn't mention is that there is a provision in the Security Offences Bill for continued detention by the police, if the latter deem fit, of a person freed by the courts.
True, the new bill provides for judicial oversight of executive fiat - the detainee can challenge his detention in court.
This seeming amelioration over the ISA is negated by the new law's permission for the executive to continue holding the detainee until the appeal process is disposed.
The improvement of judicial oversight is cancelled by the latitude given the executive to reassert its primacy.
Countervailing powers are the essence of constitutional government. In allowing for the executive to hold a freed detainee until the appeal process is completed, the balance of power is tilted in favour of the executive.
Theoretically, this indefinite detention renders nugatory all the improvements to the duration - the new law limits it to 28 days compared to the ISA's provision of 60 days - of the initial period of detention of a person by the police.
Detention after acquittal is marginally, not substantively better than detention without trial - the feature of the ISA that had rendered it odious.This provision for detention after acquittal is the tripwire that prevents the Security Offences Bill from being what the government asserts it is: a vast improvement over its predecessor and one that strikes an optimal balance between the demands of individual liberty and the security concerns of the state.
The extent the hype about the new law masks its harsh reality is further inferred from the provision that allows police to intercept communications without judicial sanction when investigating a detainee for a suspected security offence.
The Human Rights Commission (Suhakam) has expressed its demurral over this clause which it says can "infringe personal liberty and the right to privacy."
"The provisions in the Bill as well as the amendments to the other relevant laws must strike a balance between national security and fundamental liberties and human rights," Suhakam chairman Hasmy Agam said in a statement yesterday.
Thus opposition MPs were not the only ones to remonstrate with the government that the Security Offences Bill does little to advance the cause of political liberalisation in Malaysia.
Suhakam and the Bar Council, which had earlier criticised aspects of the Bill, feel likewise.
It appears the Malaysian public has not seen the last remnants of the dreaded ISA.
TERENCE NETTO has been a journalist for close on four decades. He likes the occupation because it puts him in contact with the eminent without being under the necessity to admire them. It is the ideal occupation for a temperament that finds power fascinating and its exercise abhorrent.
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