Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act

II. Background: The ISA in Law and Practice

Almost immediately after its adoption in 1960, the Malaysian government began using the Internal Security Act (ISA) as a tool against critics and political opponents.  The ISA was passed to deal with the remnants of a communist insurgency in Malaysia.  It replaced emergency regulations that had been originally put in place by Malaysia’s British colonial rulers.2  During the 1960s and 1970s, the Malaysian government used the ISA to suppress political activity, especially of left-wing parties such as the Labour Party of Malaysia and the Party Sosialis Rakyat Malaysia.3  Close to 3,000 persons were administratively detained between passage of the Act in 1960 and 1981, when Dr. Mahathir Mohamed assumed the prime ministership.

The ISA: An Abusive Law

Under the ISA, government officials may order persons detained without even the most basic due process rights.  Most importantly, the government may detain individuals it deems a threat to national security for as long as it sees fit, with no meaningful judicial review.

The ISA is extremely broadly worded and allows for virtually indefinite detention. At the heart of the ISA are sections 73 and 8. Section 73 provides for an initial detention period of up to sixty days.  Any police officer can detain an individual under section 73, but detentions that last longer than 30 days must be approved by the home minister.  An individual may be detained under section 73 if, in the judgment of the executive, he or she is “acting in any manner prejudicial to the security of Malaysia . . . or to the maintenance of essential services therein or to the economic life thereof.”4

At the end of two months, an individual can be detained under section 8, which allows for a detention period of two years, renewable ad infinitum.  The section 8 order must be issued by the home minister, who must be “satisfied that the detention . . . is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.”5  The home minister has the authority to choose the place of detention, and to dictate the conditions of detention, as she or he sees fit.6

No attempt is made in the Act to further define specifically what constitutes a true security threat under the ISA and, without the possibility of narrowing the language of the ISA through judicial interpretation (see below), the government is left with a free hand to pull almost any behavior into the scope of the ISA.7

Under Malaysian criminal law as it normally operates, police officers and others are allowed to detain individuals only if they have a reasonable suspicion, or “probable cause,” for doing so.  The ISA makes a nod toward probable cause in its requirement that an officer have “reason to believe” that an individual is acting or about to act in a manner prejudicial to the security of Malaysia.  In order to engage in long-term detention under Section 8, the Minister must be “satisfied” that such detention is “necessary” for Malaysia’s continued security and stability.

In practice, however, such safeguards, as limited as they are, are ignored.  The Special Branch (the federal security and intelligence force) has detained political opponents of the ruling United Malay National Organization (UMNO) under the ISA, for whom no such probable cause for arrest existed.8  The April 2001 arrests of the so-called KeADILan 109 is one such example: although the inspector-general of police claimed that the KeADILan activists were arrested for allegedly planning violent military activity, while in custody they were only questioned about their political activity, and no evidence was ever produced supporting the government’s original allegations.10

Those detained under the ISA for alleged terrorist activity have faced the same problem: the government has made public statements claiming that they were members of terrorist groups, but has yet to substantiate that claim.

Section 8B explicitly rejects a role for the courts in reviewing ISA detentions:

There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong [the Malaysian king] or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision.11

This provision effectively eliminates judicial review of ISA detentions, thus leaving detainees without any legal challenge to their detention. Although the law leaves room for review of “procedural requirements,” the procedural burdens placed on the government by the ISA are so few that even this one avenue of challenge is of limited use.  And as a result of the section 8B strictures and other restrictions, Malaysian judges have not been willing to use their judicial authority to uphold the rights of ISA detainees.

Although section 11 of the ISA allows for review of all detentions by a nominally independent Advisory Board, the recommendations of the Board are non-binding.  The Board is appointed by the Malaysian King on the advice of the prime minister, and its suggestions on individual cases are frequently ignored.12

Operation Lalang

After coming to power, Prime Minister Mahathir initially indicated that he would discard the ISA, and his government released nearly 170 detainees and slowed the pace of new detentions.13

But any hopes that Mahathir would actually abolish the ISA died in 1987.  After beating back a challenge to his leadership of UMNO in a vote that was tainted by allegations of vote-buying and other irregularities, Mahathir found himself in a political firestorm.  A court battle ensued over accusations of electoral misconduct, one which, had he lost, almost certainly would have cost him the prime ministership and likely ended his political career.14  Mahathir was also enmeshed in a controversy over nascent government policies designed to reduce the social and economic imbalances between the Malay majority and the ethnic Chinese minorities, which the government used as a rationale for arrests of senior opposition members of parliament.15 

Mahathir relied on the ISA to end the incipient political crisis.  He ordered the arrest of 106 people in October and November 1987, including outspoken human rights advocates and politicians from the Democratic Action Party (DAP), PAS, and UMNO.16   These arrests took place under the operational codename lalang, a type of weed. In casting such a wide net, Mahathir managed to end the crisis and advance his political career, but at great cost both to those arrested and to Malaysia’s legal and judicial framework.

In response to Mahathir’s purge of his political opponents, both inside and outside UMNO, Malaysia’s courts initially expressed a willingness to review the legality of his actions, as well as allegations of corruption against Mahathir.  Malaysia had a relatively strong tradition of judicial independence and competence at the time.  But Mahathir responded by removing five high court judges, including then-Chief Justice Tun Salleh Abbas, and unleashing a blistering public opinion campaign against the courts.

One of the most significant results of this struggle was the introduction of section 8b of the ISA, drafted during this period, forbidding judicial review of ISA detentions, including those brought as habeas corpus petitions.

The Anwar Case and the Reformasi 10

Following the Lalang crackdown, Mahathir ruled Malaysia without serious challenge for nearly a decade.  During that time, Mahathir further consolidated his control over Malaysia’s judiciary and the media.17

The 1998 Asian economic crisis, during which Malaysia’s impressive economic gains of the past several decades were jeopardized, threw Malaysian politics into turmoil. Mahathir’s position, seemingly unassailable, was placed in serious doubt after his deputy prime minister and erstwhile successor Anwar Ibrahim began to publicly question the prime minister’s decisions in the wake of the crisis.  With the country facing a downward economic spiral and perhaps even a depression, Mahathir faced his toughest political challenge since 1988. 

On September 2, 1998, Mahathir sacked Anwar from his government posts.  Specific allegations of Anwar’s alleged corrupt activities and “deviant” sexual practices soon surfaced, made public in documents relating to the court case of a political associate, S. Nallakaruppan, whose trial was also widely viewed as politically motivated.  After being fired, Anwar began leading rallies across Malaysia in support of his newly-formed reformasi movement, preaching to enormous crowds in favor of far-reaching political and economic reforms.

Mahathir then ordered Anwar’s arrest under the ISA on September 20, 1999.  Anwar was later convicted of misuse of power and sodomy in trials marred by coerced confessions by key witnesses and evidence that Anwar himself had been beaten by the chief of police while in custody.  His various appeals repeatedly denied by the courts, Anwar remains in prison.18

Anwar’s physical abuse and fifteen-year prison sentence did not quiet the Malaysian political scene.  Instead, the reformasi movement continued, fueled in part by outrage over his arrest and continued detention.  Street demonstrations, often put down with water cannons and arrests, became a regular vehicle of popular expression.  Invigorated by strong public support, Malaysian civil society and opposition political parties, including the newly formed KeADILan, or Justice Party, led by Anwar’s wife, Dr. Wan Azizah Ismail, pressed vocally for Anwar’s release.

In response, Mahathir again turned to the ISA to cut short the public protests over Anwar’s continued detention in April 2001.  Over a two-week period, the government hauled in ten high-profile activists, most of them members of KeADILan.19  Those arrested included human rights activist Badaruddin Ismail; Raja Petra Raja Kamaruddin, director of the Free Anwar Campaign website; social activist and former student leader Hishamuddin Rais; and senior KeADILan leaders N. Gobalakrishnan, Tian Chua Chang, Mohamad Ezam Mohd Nor, Saari Sungib, Dr. Badrul Amin Bahron, Abdul Ghani Haron, and Lokman Noor Adam.