The other day, I was reading an interesting entry by Thariq in his blog (http://keethariq.wordpress.com) regarding preventive detention laws and it made me want to contribute my two-cents worth regarding the post.Salam everyone,
I’m sure you all know by now that Obama is the new President of the US of A. Congratulations to the Democrats and to those who support him. But this isn’t a post about him or the US election, just an obiter dicta.
The thing is, I’ve been thinking lately on our country’s preventive detention laws. In my previous post, Rights of Habeas Corpus I’ve touched on the laws that give the GOM the power to put someone in jail without having to charge that person in court.
The GOM justifies preventive detention as a need to protect the public from persons they deem a menace. Most detention orders will state that the GOM believes the person is involved in criminal activities either drug-dealing or other violent crimes. The thing is, why don’t they just charge the person in court? Could it mean that the police do not have concrete evidence to charge them? If so how can you detain someone on mere suspicions?
If these persons are as dangerous the government deems them to be, why not put them under police supervision and then arrest him in a criminal act red handed. Is it a cost cutting measure or taking the load of the police? What are the police for then? If we had a diligent and well trained police force I’m sure there is no need for preventive detention, as proper investigations can yield the evidence needed to charge a person.
I’m reminded of the novel & movie, Minority Report by Philip K Dick. In that story, the police uses Precogs, three psychics that can predict crimes that are about to happen through the precognitive powers (hence the name Precogs). When they predict a crime, the police come in force and apprehend the soon to be offender even though the crime did not actually happen yet. We can draw a comparison with preventive detention: we suspect someone that may be involved in crime but since we can’t actually prove that it will happen we take the preemptive action by detaining him before it could happen.
In the story, we learn that the Precogs visions are not the complete truth, as they also receive the titular Minority Report which shows an alternate vision of the future. Thus showing a fatal flaw in the Precrime system. The same can be drawn to preventive detention, a person may not necessarily be a threat to society and most importantly one should be proven guilty before depriving him of his liberty.
If you have any comments or opinions please share them here, thanks.
November 6, 2008
http://keethariq.wordpress.com
At first I just wanted to give my comments in the blog itself but as I was typing my comments, it occurred to me that my view may be ‘too long’ for a comment. So here is my personal view on the subject:
I think preventive detention laws like the ISA is actually a necessary evil - true, it does goes against all principles of justice but the fact remains that prevention is better than cure. Criminals nowadays tend to make a mockery of our judiciary and legal system... they hide behind technicalities and procedures... almost everyday, we see criminals set free because of these technicalities and it's getting rather frustrating. A recent example can be seen from the latest Federal Court case of Mohd Abbas Danus Baksan, who was acquitted of murdering 10-year-old Nurul Huda Abdul Ghani. The Federal Court let the accused off the hook for murder merely because “circumstantial evidence adduced by the prosecution does not irresistibly point to the guilt of the appellant (Mohd Abbas)”. Does this sound like justice? - the b***ard raped and sodomised a little girl, the same little girl later died, but he was acquitted for murder because the evidence does not IRRESISTIBLY point to the accused? Perhaps justice will be upheld behind the prison bars…
So coming back, to me, preventive detention laws merely ensure that the above and any similar instances do not constantly occur. I agree that you need to go through trials, processes, procedures, etc. before actually detaining someone but sometimes it is necessary to detain a person before they do anything which we will eventually regret for not preventing, when there was opportunity earlier. I bet the United States is kicking itself for not using any of its preventive detention laws against the 9/11 hijackers – but no worries, the “most democratic” country in the world now has the Patriot Act to detain any Arab who mention the word “BOMB” and strip him of any fundamental liberties he may have (It is interesting to note that the Patriot Act is actually an acronym for the “Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and Obstruct Terrorism Act of 2001”).
Anyway last month, I attended an ILKAP course regarding the harmonization of civil and Syariah laws and one interesting issue was discussed. The issue was whether preventive detention laws, in particular ISA, are against the precepts of Islam. As expected, most of the participants (including myself) were of the view that ISA is against the teachings of Islam on the simple rationale that ‘how can the Islam allow a law which decides on the fate of a person without due process?’ The speaker (from the Syariah Advisory division of AG’s Chambers) however shared three “kisah” for us to think about before actually answering that particular question.
The first Kisah, as in Surah Al-Khafi, was regarding the ‘journey’ made by Nabi Musa dan Nabi Khaidir. During their journey, Nabi Khaidir came across a child and executed him. Nabi Musa questioned Nabi Khaidir’s act of killing the child without any apparent reason. At the end of their journey, Nabi Khaidir explained to Nabi Musa that the child’s parents ‘adalah dari golongan yang beriman’ and because of the child, the parents will (in the future) be forced to do things which are “zalim dan kufur” (Note: Nabi Khaidir was granted Ilmu Laduni – Ilmu yang datangnya terus dari Allah s.w.t).
For more information on Nabi Khaidir, you may want to visit:
http://ahmadrais.blogspot.com/2008/09/asal-usul-nabi-khaidir.html
The second Kisah was regarding an extremely handsome man from the time of Khalifa Saidina Umar. Well basically, this attractive man (without any fault of his own) was too good looking that it caused a lot of troubles, especially among the ladies (single, married, divorced alike). So, Saidina Umar was consulted to tackle the problem. At first, Saidina Umar shaved the man’s head – but to no avail, the women were still entranced by the man’s good looks. So Saidina Umar decided that considering the interest of the public as a whole, the man had to be banished – even though he was not at fault.
Lastly, the third Kisah, which also occurred during the times of Khalifa Saidina Umar. At the time, the Muslims were engaged in a war and there was suspicion that one particular lady is leaking confidential information to the other side. Due to the state of emergency and the need for urgency, Saidina Umar instructed that the lady be detained and searched without any form trial. True enough, the lady was found to be carrying a scroll of confidential information in her scarf.
Based on all three kisah, there are actually preventive-like approaches applied in Islam. However, the three kisah also implies that these types of approaches have to be applied in a certain manner. For instance, in the first Kisah, Nabi Khaidir had Ilmu Laduni thus had the sufficient necessary information before proceeding to execute the child. He was certain that the child would bring about harm, especially to his own parents.
The second Kisah conveys the message that in applying preventive approaches, there must be deep consideration in weighing and striking a balance between the liberty of an individual against the interest and security of the public. The second Kisah also teaches us that before employing any form of preventive approach, other means must first be fully utilized – it is only when other means fail, prevention is justified.
As for the third Kisah - res ipsa loquitor – at that particular time, it was a state of emergency and urgency is therefore required. And because of the magnitude of the risk, due process had to be dispensed with. Actually, come to think of it, this was the reason why the ISA was formulated in the first place i.e. the state of emergency in Malaysia (which has not been lifted since 1948. See remarks made to Reuters by Thiery Rommel (European Commission’s envoy to Malaysia on 13 November 2007: “Today, this country (Malaysia) still lives under (a state of) emergency.”).
Note to Thariq: is it possible therefore that Philip K. Dick studied the tales of Nabi Khaidir when he wrote “Minority Report”?
So reverting back to the ISA – it is my view that the law is necessary and Malaysia is not the only country which possesses and exercises preventive-detention laws. The reason why Malaysia gets a lot of coverage in the application of the ISA is because of the media – both local and international. The media is sp keen on highlighting that the Malaysian government is politically motivated in employing the ISA that they 'forgot' to report the detention of hardcore criminals, which prevented them from causing any serious trouble. In 2005, the current Prime Minister provided figures in the Parliament relating to ISA detainees - up till 2005;
- 10,662 people have been arrested under the ISA;
- 4139 were issued with formal detention orders;
- 2,066 were served with restriction orders governing their activities and where they live;
- 12 people were executed for offences under the ISA between 1984 and 1993.
(Source: AFP news report dated 3 February 2005)
So, based on the above figures, it is inaccurate to only view ISA as a mere tool to suppress political oppositions. Perhaps the allegations in respect of abuses in implementing the ISA are true but the fact remains that ISA had protected the general population on numerous occasions since its enactment in 1960. Hence the point I am trying to make here is that ISA existed for a reason and it is very effective in living up to its purpose - so do we still blame the law? Do we still need to go around and shout “No To ISA! Abolish ISA! The ISA is the work of the Devil” and so on? Or maybe we just need to find ways to improve on its implementation, which often invites abuse?
Note to Thariq: even in Minority Report, the actual flaw lies not in the Precrime system or the Precogs but its implementation and probability of abuse. So why abolish the whole system when it had diminished the crime rate by 90% ?
The above observation may be in contradiction with the views expressed by a majority of legal professionals, who swore to uphold justice and order for all mankind. But if a particular law can guarantee the protection, safety and security of your family & friends against possible acts of violence, terrorism or any form of harm, wouldn’t you want to maintain such a law…?
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