On 12th April 2012, Prime Minister, Dato Seri Najib Tun Razak invited Malaysians to walk with him in his journey to transform Malaysia[1]. Five days later, Najib tabled the Security Offences (Special Measures) Act (“SOSMA”) to replace the Internal Security Act (“ISA”).
Malaysians deciding whether to join Najib’s walk must know whether it is a walk for freedom like Nelson Mandela’s or Michael Jackson’s moon walking. Moon walking is a step that is apparently moving forward which actually is a backpedal taking you nowhere. Najib in replacing the ISA with SOSMA is moon walking.
Illusory Transformation
Najib announced a raft of reforms to entice lost support for the forthcoming general elections. However, he lacks the political will to push through these reforms. His fear of losing the UMNO warlords’ support has made his promises of reform to be all sound and no fury. KPRU and I have written a series of articles to show that Najib’s reforms are illusory[2]. In the 5th article of this series, we seek to demonstrate SOSMA is just another show without substance.
SOSMA
Malaysians’ joy in having the ISA and four emergency declarations abolished were short-lived. Najib in enacting SOSMA retained the power for arbitrary arrest. He swapped detention without trial under the ISA to detention without a proper trial under SOSMA.
Under SOSMA, the police have powers to arrest and detain any person whom they have reason to believe is involved in security offences for 28 days. The person detained is not entitled to challenge the legality of the detention. The definition of “security offence” is broadly and vaguely defined. It includes “activity which is detrimental to parliamentary democracy”. This may make those holding demonstrations for or against certain legislation to be committing a security offence. SOSMA allows the police to gather information in violation of privacy laws, statements from dead persons or persons that cannot be found to be admitted as evidence, to secure a conviction by lowering the standard of proof and creates a court procedure that does not meet the requirements of a fair trial. The Act allows the accused to be detained pending appeal even after the High Court has acquitted the accused. SOSMA is an affront to due process. It is a degradation of the rule of law and a return to the rule of men.
The Climate of Fear Continues
There is no adequate provision in SOSMA to prevent the authorities abusing the powers of arbitrary arrest and detention. Dato Seri Mohamed Nazri Abdul Aziz, Minister in the Prime Minister’s Department admitted in Parliament:-
“…the then Deputy Prime Minister, Tun Abdul Razak had promised in 1960 that the ISA will only be used against communists but it was not the case all the time.”[3]
Malaysians know the draconian powers of the ISA were used to stifle political dissent, silence critics, suppress the opposition, prevent public debate on important issues and to instill fear amongst the populace. Malaysians know those incarcerated under the ISA posed a threat not to the security of the nation but the security of the nation’s political masters. The 109 detained in 1987 under “Operation Lalang”, the Hindraf leaders after 2008, Seputih MP Teresa Kok, Sin Chew reporter Tan Cheng Hoon, Sungai Siput MP Dr Michael Jayakumar and the 23 PSM members for Bersih 2.0 had nothing to do with national security and everything to do with politics.
Nazri claims the provision in SOSMA that no person shall be detained because of his political beliefs shows the Government’s sincerity not to abuse the powers of detention. However, the provision is inadequate and impotent to stop the police abusing their powers to arrest and detain persons “whom they believe is involved in security offences”. It takes very little for the police to have reasons to believe that opposition leaders and human right activists are “waging war” and it will not take much for them to believe they are “involved in security offences”.
The recent police statements that Bersih 3.0 participants intended to cause death and are Marxists show the police’s propensity to believe in the slightest pretext has not been curbed.
The police charging Dato Seri Anwar Ibrahim, Azmin Ali, Chegu Bard and KEADILAN members under the Peaceful Assembly Act, the government’s suit against Ambiga and Bersih 3.0 organizers for damages, the police allowing beef burger stalls in front of Ambiga’s house, desecrating her as a Hindu and permitting butt dancing insulting her as a woman, do not instill public confidence that UMNO/BN will not manipulate and use the laws for their own ends.
The police have also allowed thugs and goons to heckle speakers and harass those attending Pakatan Rakyat rallies. In the recent Lembah Pantai rally, bricks and stones were thrown into the crowd injuring innocent members of the public. The police did not stop this violence. In preventing the public from making an informed decision as to whom they wish to vote, the people’s fundamental democratic rights have been violated. The Prime Minister has not spoken against nor taken action to stop these violations. By his silence he condones them. This can never be the conduct of one who truly believes in reform and champions democracy.
Najib has retained the tools of oppression under SOSMA. Even Nazri dare not give parliament an assurance that a Prime Minister will not use the powers for his personal advantage[4]. Najib has retained his mentor’s medicine, only the label is changed. The climate of fear continues.
The Power behind the Throne
By enacting SOSMA, Najib reveals he does not have the personal fortitude to govern without the power of arbitrary arrest and detention. The previous Prime Minister, Tun Mahathir, denied he authorized “Operation Lalang” and blamed it on the police. If Najib is moon walking then Mahathir is doing a rendition of “Billie Jean”:
“They say I AM THE ONE, but Ops Lalang is not my son”
Just as in the song no one believes that HE IS NOT THE ONE! The ex-Prime Minister’s temerity in denying he authorized the abuse of the ISA is matched only by the timidity of the present Prime Minister’s response. Najib has not corrected Mahathir’s misstatement nor revealed the truth. Truth will help heal the wounds caused by the abuse of the ISA. Najib’s sincerity in abolishing the ISA would not be doubted if he had established a royal commission of inquiry to call for truth and reconciliation as was done in South Africa. This would have brought closure to the abuses committed. This was not done. Instead we have Mahathir calling for the return of the ISA if BN is returned to power[5]. This raises the question of who is the real power behind the throne. It also raises the question whether the abolishing of the ISA is only a temporary measure, a vote fishing gimmick and that BN will revive the ISA once it retains power. Najib’s silence on this has been deafening!
National Security and Terrorism
The reasons given for detention without a proper trial have not been convincing.
Nazri in supporting the separate and different trial process for security offences from the existing criminal justice system cited 12 terrorist attacks in Malaysia since 1999. Militant groups had planned to attack the Petronas Twin Towers, Jemmaah Islamiya targeted the Kuala Lumpur International Airport and the Kumpulan Militan planned to attack a US warship docked in a Malaysian port.
BN backbenchers argued that preventive detention and a different trial process is necessary to deal with terrorists. They referred to the US Patriot Act and the preventive detentions carried out b the Bush administration after 9/11.
They also argued that national security detention is necessary to protect the sensitivity of intelligence sources and techniques that would be compromised if terrorists were brought to a trial in the regular criminal justice system thereby necessitating specialized procedures in court trials with lower standards of proof.
In summary, the argument for national security detention and specialized trial is that it is crucial to protect society from suspected terrorists, even if proof that they have committed or intend to commit the crime is insufficient for a court to charge or convict them.
The reasoning is flawed and the argument unsustainable.
National Security and the Rule of Law
Najib and the BN backbenchers’ arguments echo those used by US politicians, military strategists, academicians and popular commentators supporting George Bush’s Patriot Act and his preventive detention regime. These arguments are flawed.[6]
There are countries with preventive detention that do not meet international laws and human rights requirements. There are also many other countries that have preventive detention regimes that are not only effective but also complies with the rule of law and human rights. Najib in enacting SOSMA has chosen to follow the countries using the model that deviates the most from international laws and human rights conventions.
Stella Busch Elias in her article “Rethinking ‘Preventive Detention’ From a Comparative Perspective: Three Frameworks for Detaining Terrorists Suspects” carried out a survey of the preventive detention framework of 32 countries including Malaysia. She found there were countries with preventive detention framework that allowed terrorist suspects to be detained, charged and put on trial under the existing criminal justice system with modifications and adjustments that largely complied with the rule of law and international standards for human rights.
These are Brazil, Colombia, Denmark, France, Germany, Italy, Norway, Greece, Ireland, Spain, Turkey and the United Kingdom. These countries have combated terrorism long before the US did after 9/11. The United Kingdom had to deal with the IRA during the Troubles in Northern Ireland, France in the Algerian War of Independence, Italy in their fight with terrorist organizations such as the Red Brigade, Greece fought with left-wing terrorists, Spain combated the Basque Separatist Movement, ETA (Euskadi Ta Askatasuna) and Turkey with various domestic terrorist groups ranging from the Kurdish Workers’ Party (PKK) to the Revolutionary People’s Liberation Front. They have preventive detention but it meets the requirements for the rule of law and complies with the conventions on human rights.
The national security preventive detention model adopted by the Bush administration for detention without charge and without trial followed countries such as India, Kenya, Malaysia, Mozambique, Nigeria, Pakistan, Russia, Singapore, Sri Lanka, Swaziland, Tanzania, Trinidad & Tobago and Zambia.
The countries that adopted a framework for detention before trial in accordance with criminal laws are all stable democracies with well developed political systems and are signatories to the various international conventions on human rights.
The countries that adopted preventive detention without trial or a proper trial are countries not known for their human rights record. They are not icons of democracy. The majority of them have experienced some form of political and economic uncertainties and their judiciary is regarded as the weakest branch of government.
Najib’s arguments for a different trial process relied on comparing countries with preventive detention framework that do not meet the requirements of due process and rule of law. Najib’s argument is flawed because he has given us the wrong examples.
National Security and Human Rights
Najib’s argument is based on national security and fundamental freedoms such as human rights as being in an inverse relationship to each other. Najb and BN believe that in order to have greater national security there will have to be lesser fundamental freedoms and human rights. This is not correct. They are in fact complementary and each is dependent on the other.
Kofi Annan, the former Secretary General of the United Nations in dealing with terrorism reminded member countries:-
“Our responses to terrorism, as well as our efforts to thwart it and prevent it, should uphold the human rights that terrorists aim to destroy. Respect for human rights, fundamental freedoms and the rule of law are essential tools in the effort to combat terrorism - not to be sacrificed at a time of tension”- United Nations March 6, 2003
Najib failed to heed Kofi Annan’s advice. Najib failed to realize that in order to counter terrorism, it is not enough to imprison or execute the terrorist the terrorist must be given a fair and open trial so that the public knows that the terrorist is nothing more than a common criminal. A show trial will only serve to turn a monster into a martyr. Failure by the public to view the terrorist’s act as a crime will cause the terrorist to be canonized into a folk hero, inspiring others to join the terrorists groups.
The best security against violent attacks is an effective criminal justice system to detect, prosecute and punish perpetrators of violence alongside measures to tackle long term causes that facilitate and breed violence. The greatest duty of any state is to ensure the safety and security of its citizens and the surest way for this to be done is to make a clear and public statement of the state’s commitment to the rule of law, human rights and that the actions taken must be legal, necessary and proportionate. SOSMA has failed to do this.
National Security and History
Najib has failed to learn from the lessons of failed national security regimes.
George W. Bush declared “war on terror” after the 9/11 attacks. He took the position that in order to effectively counter terrorism, it was required that human rights, well tried systems of due process, humane treatment of detainees, personal rights of privacy, open government must all be set aside. George W. Bush allowed detainees to be tortured. He enacted the Patriot Act and signed executive orders restricting civil liberties, authorized suspects to be held in Guantanamo Bay to be interrogated, tortured and established secret military tribunals to convict the suspects with reduced standards of proof. These were seen by Americans to be an illegitimate use of his powers.
By enacting these illegitimate laws and executive orders, George W Bush found himself struggling for his political survival and they reduced the United States of America’s standing in the international arena. These laws cost the Republican Party the Presidential Elections. Tony Blair joined Bush and enacted the Anti-Terrorism, Crime and Security Act 2011 to detain suspected terrorist without trial. Tony Blair cost the Labour Party the British General Elections.
Barrack Obama campaigned for the US Presidency on the platform that included closing Guantanamo Bay. After he was elected, he did so on January 22, 2009. He also signed a further executive order to review the options of preventive detention in accordance with the laws.
Najib also did not take heed of the lessons learned from the Troubles in Northern Ireland. The Committee on the Administration of Justice, an affiliate of the International Federation of Human Rights sent a panel of eminent jurist to study and report on the Northern Ireland conflict after the “War on Terror” was declared. Britain had during the Troubles in Northern Ireland interned suspected IRA members. The internees were subject to ill-treatment and torture. The allegations of wrongful internment, ill-treatment and torture fueled anger against the authorities. In the end these measures meant in the eyes of the public that the criminal justice system lost credibility in upholding the rights of the thousands of individuals that were arrested and detained.
The Panel of Jurists reported that emergency laws[7]:-
- Corrodes the normal criminal justice system;
- Politicizes the rule of law;
- Creates a climate of fear;
- Provides privileges to information gathering for political purposes and not evidential reasons;
- Corrupts individuals and institutions;
- Is ineffective in deterring terrorism because it demonizes and alienate the very communities that could be of most assistance;
- Fuels the very violence it is attempting to undermine by exacerbating real or perceived grievances and by giving propaganda victories to state opponents
Miscarriages of justice arising from the regime also served to undermine the efforts to fight the terrorists. The Guildford Four and the Maguire Seven were examples. They were convicted for the Guildford pub bombings by the IRA. The convictions were reversed many years later by the courts that found the original decisions to convict “unsafe and unsatisfactory”. They had by then served their sentences. The case of the Birmingham Six is also the same. They were convicted for the Birmingham pub bombing by the IRA. The Court of Appeal reversed their convictions for the same reasons that they found the convictions “unsafe and unsatisfactory”.
In the “war on terror” among the most tragic miscarriages of justice is the case of Brazilian, Jean Charles de Menezes who was shot by the police seven times in the head after he was misidentified as a terrorist. The London Metropolitan Police later issued an apology but that could not bring back the man from the dead.
Najib must be reminded that those who do not learn from history is condemned to repeat the mistakes. The United States and the United Kingdom have learned from their mistakes. Americans and the British rejected the preventive detention of George W Bush and Tony Blair at the polls. Guantanamo is now closed but Kamunting will remain open under a new name. It is up to Malaysians to decide whether they want Kamunting open or closed at the ballot box.
The Courage of Conviction for Change
Najib has not show the courage of conviction and commitment to push through the desperately needed reforms. Malaysia needs a leader with the wisdom to know that the only way to defend our society must be to defend the rule of law and not to jettison it.
Dato Seri Anwar Ibrahim has shown the courage of conviction and commitment needed. They have accused him of everything they can think of; from falsely accusing him twice of sodomy, publishing false sex videos, calling him a traitor to his race and religion, beaten and imprisoned him. They have now resorted to throwing everything they can find including bricks and pots except the kitchen sink to stop his ceramahs. Yet through it all he remains steadfast and unflinching in his commitment for change and to restore the rule of law. If Malaysians do not want illusory transformation then this forthcoming general election, they should join the chorus in Michael Jackson’s song to tell the moon walker:-
“They told him don’t ever come around here
Don’t wanna see your face, you better disappear
The fire’s in their eyes and their words are really clear
So beat it, just beat it”
William Leong Jee Keen
Member of Parliament for Selayang
Ooi Heng
Executive Director KPRU
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