Thursday, May 5, 2011

I.S.A Is Justice ? : Part 2

May the peace, mercy and blessing of Allah be upon you.

In the name of Allah, the Beneficent, the Merciful.

The main purpose of this entry is to bring as much as possible the definitions, concept and practical way in regards with I.S.A, justice and its shortcoming.

Does ISA Against Malaysia Supreme Law ?

"What is I.S.A ?"

I.S.A actually stands for Internal Security Act. To be full, it stands for Internal Security Act 1960. It is one of the additional rules of criminal procedure. Besides ISA 1960, other examples of additional rules of criminal procedure are Child Act 2001 and Dangerous Drug Act 1952. Basically, it is being applied in Malaya in order to combat the Malayan Communist Party when at that particular time, Malaya in a state of emergency.

Under part IV of miscellaneous provisions, section 73 of power to detain suspected person, subsection 1 provides that any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe;

(a) that there are ground which would justify his detention under section 8; and
(b) that he has acted or is about to act or is likely to act in 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.

So, as far as I concerned, section 73 subsection 1 (b) already explain roughly in regards with the detention of any suspect is in order to prevent or halt any threats to national security. That is why it is somehow to be called as 'preventive detention'. This preventive detention is what we all known as 'Detention Without Trial' (DWT).

Once a person is detain under this Act, something that people should bear in mind is that they should not interpret the definition of detention without trial into a narrower prospect in regards with the place of detention, in regards with the restriction in the form of communication, close contact and so forth. This is one of the Acts that been given an exception towards what is so called as 'detention without trial'.

One may throw out their question by standing onto the Article 5 clause 4 of Part II, entitled Fundamental Liberties of Federal Constitution which provides that where a person is arrested and not release he shall without unreasonable delay, and in any case within 24 hours (excluding the time of any necessary journey) be produced before a magistrate and shall not be further detained in custody without the magistrate's authority.

Yet, at the same time this article provide an exceptions in 2 ways in which

i. in respect of a person arrested or detained under legislation pertaining to restricted residence such as under the Restricted Residence Act 1933

ii. in respect of those arrested or detained under immigration laws.

But most important things that we should keep remind is that there are 4 laws that allowed for this concept of detention without trial as such as, first and foremost Internal Security Act 1960, secondly Dangerous Drugs (Special Preventive Measures) Act 1985, Emergency (Public Order and Prevention Crime) Ordinance 1969 and last but not least is Restricted Residence Act 1933.

Therefore, it is clearly states that ISA is not against any supreme law of Malaysia indirectly it shows the validity of the ISA in the eyes of law.

Justice In Action

"What is justice ?"

Took only one formal definition of justice from a law philosopher. According to Aristotle, interprets justice as giving one what is due to him and giving one what is his own. As for the definitions of justice according to or from the Islamic perspective is placing something in its rightful place as well as it gives the definition according equal treatment to others or reaching a state of equilibrium in transaction.

In simple way, we could say as give what he deserved and take what is not belong to him.

Article 11(1) of the Universal Declaration of Human Rights (UDHR) provides that everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defense.

While Article 11(2) of UDHR states that no one shall be held guilty of any penal offence on account of any act or omission which did not constitute a penal offence, under national or international law, at the time when it was committed. Nor shall a heavier penalty be imposed than the one that was applicable at the time the penal offence was committed.

Obviously it against the concept of justice both from western philosopher and from Islamic perspective as well it is against our universal human rights.

As what I actually trying to show is the needs to avoid the concept of 'arrest first, investigate later'.

Do you deserved something until it is proven that it is yours ? So, when this concept of 'arrest first, investigate later' was applied within our community, it shows the injustice towards the people and thus denying the facts that everyone is actually entitled with their rights and liberties.

"Allah commands justice, the doing of good, and liberty to kith and kin, and He forbids all shameful deeds, and injustice and rebellion: He instructs you, that ye may receive admonition"
(An-Nahl verse 90)

Istishab, is one of the two important principles guided jurists' use of evidence in making ijtihad. Istishab gives the definitions of continuity in which the most famous example of this is the principle of Islamic law that a person is innocent until proven guilty. A simple question has been raised, can we punish someone who do not been proven guilty ?

Concluding Remarks

As people trying to prove that this Act is valid in the eyes of law, why not these people trying to show the contradiction between this Act and justice as well as against our religious view ?

It is not a risk for me to say that the question in regards whether it is against our supreme law, and most importantly whether it is against the concept of justice and concept of guilty from Islamic perspective has been clearly states and answered. Where is the shortcoming ? Obviously, I already states that indirectly.

Thank you.

May the peace, mercy and blessing of Allah be upon you.

This is technically based on my points of view in results of my readings and observations. Most importantly, I am not representing any party or individual except for myself.


Arif Azmi said...

But wasn't ISA introduced to combat communists? Supposedly that was the main agenda.. But I don't know.. You make a good argument.. ;)

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syaiful aidil said...

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