A blunderbuss of a law

Brave New World (The Star)
November 13, 2008

"Section 8B of the Internal Security Act says that the Home Minister’s decision cannot be questioned, but there are cases where courts have found ways around it."

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I do solemnly promise you, the reader, that I will not mention in this article anything about the American presidential election.

Yes, this is terribly parochial of me, but I think there has been quite enough discussion about you-know-who winning you-know-what. Besides, there are only so many jokes one can make by comparing the American presidency and the PKNS general manager’s post.

Now that that is out of the way, I want to tell you an amazing story. On Sunday night, I was aimlessly wandering the streets of Petaling Jaya, as you do, when I was met with a remarkable sight.

Jalan Timur was completely deserted. This was around nine at night, and usually the road would be full of suburbanites going around their suburbanite business. But instead, there was an eerie silence.

The only people there were some policemen, and they looked at me suspiciously as I crossed and re-crossed the road, skipping with joy at the lack of life-threatening vehicles. I thought that this was a recent innovation of the Selangor government – to make Jalan Timur a pedestrian zone. How environmentally friendly.

Later, I realised that there was an “illegal assembly” outside Amcorp Mall and the police had arrested a whole bunch of people and chased away an even bigger bunch of people who had gathered there to celebrate the first anniversary of the Bersih Rally.

Actually, according to the law, any grouping of three people can be deemed an illegal assembly. That means if I were skipping on Jalan Timur with two pals, we could theoretically be arrested as well. Rather silly, isn’t it?

Especially in the light of Article 10 of the Constitution which guarantees the right to assemble peaceably without arms. How do we then reconcile Article 10 with the Police Act which has that “three people can be an illegal assembly” rule?

Well, the Constitution does say that Parliament can make laws that restrict public assemblies if it is for national security or public order. And to empower the police to protect our “national security” and “public order”, we have the Police Act.

I suppose there is a need to control assemblies. After all, if there are thousands and thousands of people wandering around Petaling Jaya skipping and waving banners and such, then there will be traffic jams and other such inconveniences.

However, in the practice of this power, surely the police have to do so keeping in mind that we have a right to assemble, and any restriction on that right has to be for “national security” and “public order” reasons.

Were the people assembling near Jalan Timur carrying weapons? Were they violent? Were they a threat to national security? Were they disturbing public order?

If the answer to all these questions are no, then surely their constitutional right should trump any power the Police Act may give our men and women in blue.

This appears to me to be a case of following the letter of the law, but not the spirit. Fortunately, there are those who are not so shallow in their thinking.

I am speaking, of course, about Justice Syed Ahmad Helmy Syed Ahmad. He had ordered the release of Raja Petra Kamarudin, declaring the detention order made against him by Home Minister Syed Hamid Albar as unlawful, as it was done beyond the ambit of the Internal Security Act which gave the minister such powers.

Is this judgment correct? Section 8B of the Internal Security Act does say that the minister’s decision cannot be questioned. This is known as an ouster clause, where the court’s power to review a governmental decision is taken away from it.

Well, there are cases where courts have found ways around ouster clauses and the reason they do this is that surely it can’t be intended that a minister should have total and unfettered power.

For example, the use of the ISA is supposed to be only about national security.

If a minister chooses to detain men with long hair because their gorgeous locks are deemed a threat to national security as they make women jealous and therefore are likely to sulk and thus grinding national productivity to a halt, must a judge sit idly by and allow such a ludicrous act on the part of the minister?

Most judges in the past have done just that. They have refused to question the minister’s exercise of power under section 8 of the ISA. Justice Syed Ahmad Helmy bucked the trend and all expectations by deciding otherwise.

And I think his judgment is in all likelihood (it is not yet published so I have not read it in full) legally sound.

The ISA is an awful blunderbuss of a law and to allow anyone the ability to use it with complete discretion is simply making a bad situation worse. The law should be repealed; there is no room for potentially unending detention without trial in a civilised country.

But until that happens, the courts must be a place where one can turn to to ensure that whatever detentions that do occur are not done on grounds beyond the intentions of the Act.