Neither Politicians nor Judges should decide on preventive law

To prevent undesired subversive activities, organised violence, and criminal activities from causing harm to the safety and security of the public, two new laws will be enacted under Article 149 of the Federal Constitution to replace the Internal Security Act, 1960 (ISA) and other existing preventive laws.

Some view it as not wise on the part of the Prime Minister, Dato Seri Najib Tun Abdul Razak to announce the abolishment when the two new laws is not passed by Parliament yet. Dispel any thoughts of some Menteri Besar or Prime Minister have a personal development project on the sites of the Kemunting or Simpang Renggam ISA detention camps.

It can be seen positively as the Prime Minister inviting comments, responses and inputs from the public.

The PM's position is that the new laws will take into account the Fundamental Liberties spelled out in Part II of the Federal Constitution.

Najib said that detention without trial for questioning will be shorter than the maximum of 60 days under the ISA and the power for further detention will be shifted from the Minister to the courts, except for those relating to violence will remain in the hands of Minister.

In the opinion of this blogger, neither politicians nor judges should be empowered to decide on further detention. Instead of the power vested in a SINGULAR person, it should be based on a committee of experts.

Najib’s position

Before arguing further, let's read again Najib's speech with regard to the abolishment of ISA, below:

23. Sepertimana yang saya janjikan dalam ucapan sulung saya semasa mula-mula mengambil alih jawatan Perdana Menteri pada 3 April 2009, bahawa Akta Keselamatan Dalam Negeri 1960 (yakni ISA) akan dikaji secara komprehensif. Sehubungan dengan itu, suka saya mengumumkan pada malam yang bersejarah ini, bahawa Akta Keselamatan Dalam Negeri 1960 (yakni ISA) akan dimansuhkan terus.

24. Untuk mencegah perbuatan subversif, keganasan terancang dan perbuatan jenayah bagi memelihara ketenteraman dan keselamatan awam, dua undang-undang baru yang sesuai akan digubal di bawah semangat serta payung Perkara 149 Perlembagaan Persekutuan. Pokoknya, akta-akta ini nanti bermatlamat untuk memelihara keamanan, kesejahteraan, kesentosaan serta kerukunan hidup rakyat dan negara.

Article 149 together with Article 150 and 151 form Part XI of the Federal Constitution that deals with Special Powers Against Subversion, Organised Violence and Acts and Crimes Prejudicial to the Public and Emergency Powers.

The Prime Minister's position as per the quote from his speechis still vague:

25. Di atas segalanya, Kerajaan akan tetap memastikan hak asasi mereka yang terbabit terpelihara. Apa-apa undang-undang yang diperbuat akan mengambil kira hak dan kebebasan asasi berlandaskan Perlembagaan Persekutuan. Undang-undang baru ini akan memperuntukkan tempoh tahanan oleh polis yang secara substansialnya lebih pendek daripada apa yang ada sekarang dan apa-apa tahanan lanjut hanya boleh dibuat dengan perintah mahkamah kecuali undang-undang berkaitan keganasan, masih dikekalkan bawah kuasa Menteri.

26. Di sudut lain, kerajaan juga memberi komitmen bahawa mana-mana individu tidak akan ditahan semata-mata hanya kerana ideologi politik. Umumnya pula, kuasa untuk melanjutkan penahanan akan beralih daripada badan eksekutif kepada badan kehakiman kecualilah undang-undang berkaitan keganasan itu tadi.

This allows for public discussion and input into the enactment process. This could be done direct to those in authority or via their representative Member of Parliament.

Hopefully this time, the Menteri Amaran Dalam Negeri will not be a chicken out pondan who cancelled several scheduled dialogues with bloggers to discuss ISA amendments. Most unfortunate that he is stuck with those labels and any political harm done. He should blame the many kaki bodek around him.

Consider it as part and parcel of public life. For the common rakyat, they have to bear the collateral damages from the blunders of Ministers with aristocratic and royal background that's totally vague of the rakyat's predicament.

Understanding Preventive Law

Politicians come and go but the laws remain forever. Since politicians are usually more concerned with their popularity than making the right decisions, it is the rakyat that have to bear the down side of their myopically-enacted laws. Here lies the long term risk on public safety and security.

The first thing that needs to be understood is that preventive law as the term describe is meant to prevent the occurrence of violence, public unrest, and crime from happening. If the violence, public unrest or crime had occurred, it is too late and no more needed prevention.

In the past, the "official" or "operational" reason for detentions without trial under ISA were to secure information. The detainees may not have committed any offenses but is detained to help investigation.

Will it mean there will be no more such detentions deemed as imposition on individual's civil liberty for the benefit and safety of the majority?

If detainees cooperate and do not pose any threat to the public, they are released. If they do not cooperate and/or pose a threat to the public, the new prevention laws will require politicians or judges to decide whether to extend detention.

Our contention is: can politicians or judges, with their limited background, capability, and inclinations, able to decide as to anticipate the possible threat the detainee pose to the public?

Questioning Politicians and Judges

Based on books and references on organised subversive and criminal activities, detainees are usually part of an organisation and they operate in small cells. Can politicians or judges appreciate the possible links with other activities of the same organisation?

Then there are cases involving ideologies and not related to violence and crimes, like deviationist teachings.

Judges relies on legally proven evidences to make judgement and that can only be obtained after event. Will any crime prevention agencies be able to secure evidences to legally prevent such occurrences as the Guyana mass suicide by reverend Jim Jones and sarin gas attack in Japan?

Their inclination to see cases as black or white, innocent or guilty will not be applicable in deciding in preventive laws meant to protect the rights of the majority for peace and tranquility.

Legally minded judges or popularity minded politicians will most likely not be able to appreciate the technical information in the operations of subversive activites, organised violence and crimes. It will result in delays in decision-making by judges. While 11th hour decision maker type politicians will create bureaucrasy to stall decision and may put lives at stake.

By leaving it in the hands of individual judges or politicians to decide, does it ensure that their decisions are independent, objective and most important free from political pressure and threats?

The more than 55 times delayed sodomy case of Dato Seri Anwar Ibrahim leaves much confidence on the judiciary to put justice above politics. Will the judiciary be able to put public safety and security ahead of political and legal consideration and pressure?

This is not taking into possible hazard in the system due to judges on the take, in collusion with friends and family members, intervention by more superior judges, etc.

Are judges capable of evaluating cases of economic sabotage which is more complex and sophisticated than insider trading cases in which the court's track record in conviction worldwide is less than satisfactory?

Supposed providers of essential goods like sugar and flour decide to withhold supply and put the nation in their economic strangle, but no crime is committed, how will a judge, used to the usual treatment of evidence, make a quick decision to protect the public?

Also, there is serious doubt that judges can help stem subversion activities by communist trade unions activist working to stifle public transportation like what happened in the 1950s, without any efficient and effective preventive laws. This sort of occurrence can repeat itself in this millennium and the ringleaders need to be swiftly apprehended.

In the case of deviationist teachings that usually occur within the Muslim community, it had resulted in sectarian clashes within the community and criminal activities like in the case of Al Maunah. If the security had known, the arms heist could be prevented and no lives sacrificed.

Are judges capable of justifying such cases?

And, can indecisive and popularity seeking politicians act fast enough?

Preposition

By now, the point that should hit home is that the best for decisions be left to the experts in the area of security, crimes, and terrorism including deviationist teachings and economic sabotage.

Not only should politicians or judges not be empowered to act on extending or canceling further detentions, no one should SINGULARLY be empowered.

The informed consensus decision of many experts is better than that of a person.

There is a need to protect the civil liberty rights of the individual, but the stakes are more for the security and safety of the masses. It can be done better by a committee of experts than individual politician and judge.

Do take into consideration.