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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.

The government claimed that the KeADILan activists were planning violent protests in order to overthrow the government, and were attempting to procure weapons and explosives.  Despite the serious nature of the charges, the government produced no evidence to support its claim.²⁰

With many of the senior KeADILan leaders arrested and more detentions threatened, the “free Anwar” protests fizzled.  Within roughly forty days of their initial detention, two of the men, Badaruddin Ismail and Raja Petra Kamaruddin, were released by the authorities.  Another two, N. Gobalakrishnan and Abdul Ghani Haron, won their release through a habeas corpus petition.²¹  The remaining six were given two-year terms in early June 2001. Despite repeated calls by both local groups and international observers, including the U.S., the European Union, and Australia, to release the six men immediately, all six served their full two-year terms, and were set free in June 2003.²²  In a striking parallel to the Operation Lalang detentions, Mahathir managed to severely weaken his political opposition with the KeADILan arrests.²³

While in detention, the KeADILan detainees were regularly threatened, coerced, and psychologically abused.²⁴ Detainees were interrogated for several hours straight, day after day, and told that if they cooperated, they would be released.²⁵  They were kept in solitary confinement and denied access to an attorney or family visits during the first several weeks of their detention.  The interrogators also threatened physical abuse in order to try to force the KeADILan detainees to confess to various crimes or to answer questions.  All of these tactics were designed to maximize the psychological pressure on the detainees, and to coerce them to make false confessions about taking steps to overthrow the government by force.

As with other political detainees under the ISA, there were allegations of isolated incidents of physical abuse while in detention, allegations which the government failed to fully investigate.²⁶  Although all of the KeADILan detainees have since been released, the ISA continues to cast a pall over Malaysian political life.  Opposition politicians and activists know that they could be detained under the ISA at any time, for any reason, or for no reason at all.

Religion and Alleged Militant Activity in Malaysia

Since September 11th, the Malaysian government has justified its use of the ISA as part of its efforts to combat the activities of Islamist armed groups.  Although it has yet to offer any evidence in court to prove its claim, the Malaysian government alleges that the detained men are part of a militant network that stretches across Southeast Asia.  According to the Malaysian government, this network intends to create a fundamentalist Islamic state in Malaysia, Indonesia, and the southern Philippines. 

Malaysia became a focus of international anti-terror investigations only after September 11th.  Two of the September 11th hijackers, Khalid al-Mdhar and Nawaq al Hamzi, passed through Kuala Lumpur in January 2000, and were hosted by Yazid Sufaat, an alleged member of Jemaah Islamiyah detained under the ISA in December 2001.²⁷  Two of the alleged plotters of the USS Cole bombing also spent time in Malaysia and were allegedly hosted by members of JI, and a handful of Indonesians connected with the Bali bombings and the JW Marriott hotel bombing in Jakarta also apparently resided in Malaysia as they prepared their attacks.²⁸

Because Indonesia under President Soeharto was long inhospitable to the small group of Indonesians allegedly pursuing the creation of a fundamentalist Islamic state, a handful of key exiled clerics came to Malaysia to live, preach, and make money. According to anti-terrorism experts, these men, most prominently Abu Bakar Bashir, Abdullah Sungkar (now deceased), Mohamad Iqbal, and Riduan Isamuddin, known as Hambali, formed the nucleus of JI in Malaysia, and engaged in recruitment of Malaysians for several years.²⁹  These men have since become the focus of anti-terror investigations in Malaysia, Indonesia, and elsewhere. 

After their arrival in Malaysia in the mid-1980s, Bashir and Sungkar took up the cause of the Afghan jihad and began to send aid and recruits to Afghanistan to fight in the country’s civil war and receive military training.³⁰  The first group of recruits was allegedly sent to Afghanistan in 1985; the second a year later.  The third group, sent in 1987, included both Hambali and Mohammad Iqbal.³¹  The camp at which these men allegedly trained was run by a Wahhabi cleric and Afghan warlord named Abdul Rabb al-Rasul Sayyaf who was, at the time, supported by Saudi Arabia and Pakistan.  While most of the trainees sent there were Indonesian, several of the current Malaysian detainees are also accused of having trained there.

In the mid-1990s, Sungkar switched training facilities from Afghanistan, which was falling under the control of the Taliban, to Mindanao, in the southern Philippines.³²  Connections between the leadership of the Philippine Moro Independence Liberation Front (MILF), a longstanding militant group, and JI reportedly were helpful in setting up the new training facility.³³  ISA detainee Yazid Sufaat acknowledges having trained there, and other current detainees are alleged to also have received training there. 

Hambali first came to Malaysia in the mid-1980s, and he and Iqbal were for a time living in the same neighborhood in Sungari Manggis, fifty miles southwest of Kuala Lumpur, in the early 1990s.³⁴  Bashir and Iqbal were especially well known for their preaching ability, and both men became popular for their ability to give sermons, lead prayers, and teach Islam.  Malaysians who had heard Iqbal and Bashir preach referred to their charisma and expressiveness, which some attributed to the two men’s Indonesian background.  “They are very articulate.  Somehow the Indonesian language has more vocabulary than Malay.  Their sermons are very inspirational,” one follower of both clerics said.³⁵

For many, the willingness of these preachers to address subjects that many Malaysian clerics considered taboo was also a draw. With the Indonesian clerics, one woman noted, “We go page by page.  If it goes to this [sensitive] verse, too bad.  Some teachers, when they get to this verse, they just skip it because it is too sensitive.”³⁶ 

Perhaps not surprisingly, one of the subjects that Malaysian preachers considered too sensitive was the arrest and jailing of former Deputy Prime Minister Anwar Ibrahim.  “He [Iqbal] didn’t give a damn about sensitive subjects.  He talked about Anwar.  When Anwar was taken in, no one wanted to comment on it.  If you want to talk, talk!” said one regular attendee of Iqbal’s sermons, throwing her hand up in disgust over the timidity of Malaysian preachers.³⁷

In part because of their willingness to discuss sensitive political subjects, the Indonesian clerics were considered by some to be more honest, somehow more authentic, than their Malaysian counterparts.  They claimed that their preaching was heavily text-based, and Iqbal in particular wrote on a range of topics related to Islamic theology and Islamic law.  According to one attendee, Iqbal would tell his students that “Islam is Islam.  There is no fundamentalist Islam, extremist Islam, no liberal Islam, just the Islam of the Quran and Sunna.”  This approach generated a very positive response among some listeners: “He [Iqbal] is very honest in his teaching.  We were very attracted to that.  When we went to Malaysian ustaths [religious teachers], they put us to sleep,” one attendee of Iqbal’s classes said.

Although the individuals that Human Rights Watch spoke to said that they had never heard Iqbal or Bashir talk about any plans for setting up a pan-Islamic superstate across Malaysia, Indonesia, and the southern Philippines, as the Malaysian government has alleged, they did preach and teach about jihad.³⁸  For Iqbal in particular, Malaysian Muslims had a “duty of jihad” in Ambon, Indonesia.

Relations between Christians and Muslims in Ambon deteriorated in the 1990s, in part as a result of increasing Muslim migration into Ambon over several decades and a decline in traditional authority structures.³⁹  In January 1999, Ambon exploded into violence after a fight between a Christian and a Muslim pushed ethnic tensions past the breaking point.  Hundreds were killed and many thousands were displaced in the ensuing violence.⁴⁰  Ambon became an important rallying cry for some of Iqbal’s followers, and Iqbal encouraged them to support their fellow Muslims in their struggle against the Christians.

According to some, this support was limited to donations of money for humanitarian relief and did not include any sort of obligation to fight alongside the Muslims in Ambon.  Other sources dispute the characterization of Iqbal’s incitement as being exclusively or even primarily humanitarian in nature; instead, he is alleged to have actively recruited Malaysian fighters to go to Ambon.⁴¹  One follower mentioned going to Ambon as one way to fulfill the obligation to engage in jihad: “If you can’t bring yourself to go there, then there are other ways to do it.  Give money, or pray.  That is your jihad.”⁴²

As of this writing three of the alleged ringleaders of JI in Malaysia, specifically Hambali, Bashir, and Iqbal, are in detention.

Mohamad Iqbal, an Indonesian, was being held by the Malaysian government awaiting deportation to Indonesia on charges of overstaying his visa.  Arrested in June 2001 in Selangor, Iqbal was held for two years under the ISA, accused of involvement with terrorism.  He was transferred to immigration detention in August 2003, where he was held for nine months.  Just hours before he was scheduled to appear in Malaysian court for an appeal of his continued detention, Iqbal was returned to Indonesia by Malaysian authorities on May 14, 2004.⁴³   He is currently in detention in Indonesia, and Indonesian police are investigating him on allegations of involvement in terrorist activity.

Hambali has been held in an undisclosed location by the United States since his arrest in Bangkok, Thailand, in August 2003.  Hambali was originally reported to be held on the U.S. military base on Diego Garcia, but subsequent assurances from the U.S. government to the British government that no detainees are being held there have since cast doubt on those reports.  In addition to holding him without charge or trial, the U.S. has yet to officially legally classify Hambali’s detention.  The U.S. has not responded to repeated requests from Human Rights Watch for information on Hambali’s location, legal status, and conditions of detention. 

Abu Bakar Bashir, the reputed spiritual leader of JI, remains in prison in Indonesia.  Arrested after the October 2002 bombings in Bali, Bashir was tried and convicted of various immigration violations, but acquitted on all terrorism-related offenses.  Many observers did not believe that the prosecution made the strongest presentation possible, while others believe the court ruled on political grounds.  Indonesian officials blamed the acquittal on terror charges in part on the unwillingness of the U.S. to provide Indonesian investigators with direct access to Hambali, who they said had information that could have been helpful to the prosecution.  On March 9, 2004, an Indonesian court overturned the most serious of the convictions against Bashir, and ordered that his sentence be reduced to eighteen months, most of which he had at that point already served.  On April 30, Bashir was re-arrested on the day of his scheduled release, and soon thereafter was once again charged with terror-related offenses, which ensured that he would not be released anytime soon. As this report went to press, he was awaiting trial on the new charges.

Alleged Organizational Affiliations of the ISA Detainees

The ISA detainees, though detained over similar allegations of connections to international terrorism, largely fall into three distinct groups:

The KMM detainees

According to the Malaysian government, the KMM was founded by members of the Parti Islam SeMalaysia, or PAS, Malaysia’s largest Islamist opposition party, in the 1980s.  One alleged motivation for the creation of the KMM was to respond to violence in Memali, in which supporters of local PAS leader Ibrahim Libya had been killed in clashes with police.⁴⁴  According to the government, the KMM was set up with the complementary goals of preparing for jihad and protecting PAS leaders from future attacks by government forces.

Malaysian government officials claim that they became aware of the KMM’s existence and the identity of some of its members in large part through the arrest of a group of would-be bank robbers in May 2001.⁴⁵  According to government sources, the subsequent interrogation of the captured suspects led to the arrests of the KMM members, and allowed the police to link the KMM to other crimes, including the assassination of an Indian politician and the bombing of a Hindu temple.⁴⁶

Despite the passage of more than two years since the initial arrests, however, doubts continue to linger over whether the KMM actually exists.  Those alleged members of KMM detained under the ISA continue to deny the existence of the group.  In testimony to the National Human Rights Commission, Zainon Ismail angrily reiterated his claim of innocence and lashed out at the Malaysian media for reporting government allegations against him as substantiated fact.  “I was . . . accused (of) being the founder of the KMM, but all this is just a creation of the police.  There is no such thing as the KMM.”⁴⁷

The government has repeatedly played up the alleged link between the KMM and PAS, raising concerns that the arrests were in fact politically motivated.  At a public forum organized by UMNO, party vice president and government minister Tan Sri Muhyiddin Yassin called on PAS to come clean:  “The people are waiting for an explanation from PAS regarding its relationship with the KMM but till today it has kept mum although a son of the Kalantan [spiritual leader] is believed to be involved,” the minister said.⁴⁸  For its part, PAS dismissed the arrests, calling them a “political ploy” by UMNO to weaken PAS, and challenged the government to prove its allegations in open court, if indeed it could.⁴⁹

The detainees claim that the government distorted their legitimate participation in a loose network of Malaysian alumni of Islamist schools (madrassahs) in India and Pakistan, creating the KMM out of that group of alumni in order to serve its own political needs.  In his testimony to Malaysia’s National Human Rights Commission (commonly referred to by its Malaysian acronym, Suhakam), Ismail openly admitted to being a member of this group, referred to as Pakindo: “I deny that there is such a thing as the KMM.  I am however a member of an alumni association for students who have gone to universities in Pakistan and India called Masa Pakindo, or Malaysian Students Association of Pakistan and India,” he told the Commission.⁵⁰  

Sending male children to Pakistan to study Islam is a fairly common practice among devout middle-class families in Malaysia.  For many, sending a child all the way to Saudi Arabia is too expensive, and Pakistan’s madrassahs are an acceptable alternative.⁵¹  Most of the PAS-affiliated detainees spent time in Pakistan in the mid-1980s, and many, on their return, stayed in touch.  Members described Pakindo as very a informal group, one that did not meet regularly.  “I don’t think they’re particularly active.  As far as I know, they only met two or three times a year,” one associate of many Pakindo members said.⁵²

Many of the KMM detainees openly admit to having spent time in Afghanistan, and some of the detainees also told Suhakam that they had received military training in Afghanistan or the southern Philippines.⁵³  But they denied having any plans to overthrow the Malaysian government.  These admissions, far from justifying their continued detention under the ISA, point to the need for a public trial: the Malaysian government needs to establish just what the detainees were doing in Pakistan and Afghanistan, and whether those who did receive military training were in fact doing so with the intent to take action against the Malaysian government.  It has yet to show in court that any of the individuals that it arrested in 2001 had any involvement in the criminal acts it has claimed were carried out by KMM. 

Jemaah Islamiyah (JI) detainees

The second group of detainees includes a number of young professionals, mostly from in and around Kuala Lumpur.  The government arrested most of them in January 2002.  The government claimed that all of the detainees were members of Jemaah Islamiyah, and that they had engaged in military training in preparation for a strike against the government.

Government investigations centered on a group called Persuatuan El Ehsan, which was registered with the government as a charity organization.⁵⁴  Members of El Ehsan claimed that donations the group collected were used for refugee relief work in Ambon and Afghanistan, but the government claimed that El Ehsan was involved in buying weapons for Muslim fighters in Ambon and for the Taliban in Afghanistan.⁵⁵  El Ehsan also set up Arabic lessons and Islamic study groups for its members and organized lectures by various preachers, including Mohamed Iqbal.

The Johor detainees

The third group of detainees includes a mix of professionals and working-class individuals from Johor state, most of whom had ties to the Madrassah Luqmanul Hakiem in Ulu Tiram, Johor.⁵⁶  Founded by Abu Bakar Bashir after his arrival in Malaysia, the school was home to a handful of Indonesians allegedly involved in the Bali bombings, including Hambali.⁵⁷  Closed down by the government in 2001, the madrassah has been referred to as part of the JI “Ivy League,” along with a handful of other religious boarding schools in Indonesia.⁵⁸  The Johor arrests took place mostly in April 2002.