Should the ISA be brought back?

 

From Dave Ananth

The Internal Security Act (ISA) once symbolised both the strength and the frailty of Malaysia’s legal framework.

Introduced to maintain national security, it allowed detention without trial but became infamous for its misuse during events like Operation Lalang in 1987.

Repealed in 2012 due to widespread criticism of its incompatibility with the principles of natural justice and the rule of law, the ISA’s absence is increasingly felt amid the current socio-political climate.

The likes of Bersatu member Badrul Hisham Shaharin, also known as Chegubard and the man believed to be Papagomo, with their inflammatory rhetoric, underscore the urgent need for a legal mechanism to address immediate threats to national harmony.

The principles of natural justice and rule of law

Natural justice and the rule of law form the bedrock of any fair legal system. Detention without trial, as sanctioned under the ISA, bypassed these principles, stripping individuals of the right to a fair hearing. Operation Lalang’s detentions—some politically motivated—revealed how the ISA could be wielded as a tool for political suppression rather than genuine national security.

This misuse eroded public confidence in Malaysia’s justice system, painting the ISA as an authoritarian relic.

The repeal of the ISA was celebrated as a step toward democratic maturity. Laws such as the Sedition Act and Penal Code’s provisions against incitement were deemed sufficient to address inflammatory speech and actions.

However, enforcement of these laws has been marred by inconsistency. Selective prosecution has left provocateurs free to spread venomous rhetoric, while activists, authors, and cartoonists face swift action. This disparity reveals a critical gap in Malaysia’s legal framework.

Malaysia’s delicate social fabric, woven from its multicultural and multireligious populace, is under assault. Individuals exploiting racial and religious sentiments for personal or political gain threaten the unity envisioned by the nation’s founding fathers. History has shown that unchecked provocations can escalate into unrest. Yet, despite existing laws such as the Sedition Act, enforcement remains lethargic and selective.

The Penal Code’s provisions against incitement, defamation, and hate speech are sufficient on paper but falter in execution. The double standard in enforcement—where certain individuals operate with impunity while others are targeted—undermines the rule of law. This selective action emboldens provocateurs, creating a dangerous precedent.

The ISA’s preventive detention provisions, while controversial, addressed an immediate and severe threat to national security.

The law allowed swift action against individuals whose actions posed an imminent danger. Critics argued that these provisions bypassed judicial oversight, but proponents pointed to their effectiveness in averting crises.

Countries often celebrated for their adherence to human rights, such as the United Kingdom and the United States, have implemented similar measures. The UK’s Terrorism Prevention and Investigation Measures (TPIMs) and the US’s Patriot Act both allow restrictions on individuals suspected of planning or inciting violence.

These laws, while subject to oversight, reflect an understanding that certain threats require extraordinary responses. Malaysia’s current legal framework lacks a comparable mechanism, leaving the nation vulnerable.

The repeal of the ISA created a vacuum. Replacement laws like the Security Offences (Special Measures) Act 2012 (Sosma) and the Prevention of Terrorism Act 2015 (Pota) aimed to balance national security with civil liberties. Moreover, these laws lack the comprehensive immediacy the ISA provided.

The role of the home ministry

The home ministry’s failure to act decisively against incendiary figures raises critical questions about its priorities. Resources are disproportionately allocated to silencing cartoonists and authors while provocateurs inciting hatred face little to no consequences. This selective enforcement undermines public trust in the government’s commitment to national unity and the rule of law.

If the current legal framework is inadequate, it is the home ministry’s responsibility to propose amendments or introduce new legislation. However, any new measures must include safeguards against abuse. Judicial oversight, regular reviews of detention cases, and transparency are essential to ensure that preventive measures do not become tools for political suppression.

Reinstating the ISA in its original form is not the solution. Its legacy of misuse cannot be ignored. However, the principles underpinning its preventive detention provisions remain relevant. A balanced approach is required, one that combines the immediacy of preventive measures with robust safeguards for natural justice.

Malaysia stands at a crossroads. The unity and harmony envisioned by the country’s first prime minister Tunku Abdul Rahman are under threat from those exploiting divisions for personal gain. While the ISA’s legacy is fraught with controversy, its preventive detention provisions addressed a need that remains unmet in the current framework.

The path forward requires political will, equitable enforcement of existing laws, and a commitment to upholding the principles of natural justice. The home ministry must rise to the challenge, demonstrating that national security and civil liberties are not mutually exclusive.

Only then can Malaysia hope to silence the voices of hatred and uphold the ideals upon which it was founded. - FMT

Dave Ananth is a former magistrate and an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.