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II. Background

The ISA was originally enacted by British colonial authorities in 1960 during a national state of emergency as a temporary measure to fight a communist rebellion. The ISA allows the police to detain any person for up to sixty days, without warrant or trial and without access to legal counsel, on suspicion that “he has acted or is about to act or is likely to act in any manner prejudicial to the security of Malaysia or any part thereof or to maintenance of essential services therein or to the economic life thereof.” ¹ After sixty days, the minister of internal security (formerly the minister of home affairs) a post currently held by the prime minister, can extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts.² Such two-year detention orders are renewable indefinitely. While the ISA does allow for review of all detentions by a nominally independent Advisory Board, the recommendations of the board are non-binding. The Advisory Board is appointed by the Malaysian King on the advice of the prime minister, and its suggestions on individual cases are frequently ignored.³

Reports of torture and ill-treatment during the first sixty days of detention in Police Remand Centers (PRC) (pre-trial detention centers) have been documented by the Human Rights Commission of Malaysia, and Malaysian and international human rights groups.⁴ In 2004, Human Rights Watch published In the Name of Security: Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act, which documented the near-complete denial of due process rights to detainees in the first several weeks of detention, as well as physical and psychological abuse of ISA detainees who allegedly belong to Islamist militant groups. Attention to ISA abuses, coupled with the growing international revulsion against the abusive practices of U.S. forces at Iraq’s Abu Ghraib prison, spurred the Malaysian government to respond. On May 29, 2004, it opened Kamunting Detention Center to the first tour by journalists since it opened in 1973. Although journalists were not allowed to speak to detainees directly, the media did report on the fact that detainees had told the Deputy Minister of Internal Security Datuk Noh Omar that they had been abused during the first few weeks of their detention in Police Remand Centers by Special Branch interrogators.⁵ Under pressure, the government then announced that Suhakam could investigate these claims. In July 2004, Suhakam commissioners, accompanied by investigating officers from police headquarters visited a Police Remand Center in Kuala Lumpur, and were told by police officers that they do not torture ISA detainees.⁶

Allegations of torture and ill-treatment in Police Remand Centers were, however, acknowledged by the government-appointed Royal Commission to Enhance the Operation and Management of the Royal Malaysia Police.⁷ The Commission expressed “concern” at the “sheer number” of complaints it received by detainees in police custody, including ISA detainees, alleging torture, inhuman, and degrading treatment by the police and Special Branch interrogators.⁸ It recommended the police adopt a code of practice relating to the arrest and detention of persons, including under preventive detention laws, and recommended amending the Police Act to define the powers and activities of the Special Branch.⁹ The Commission also recommended reducing the initial period of detention under the ISA from sixty to thirty days.¹⁰ Shortening the period of initial detention, however, falls far short of the amendments necessary to conform with international standards of due process rights for detainees—including the right to challenge the legality of their detention. The Commission’s findings and 125 recommendations, which at this writing were being reviewed by the government, were made public in May 2005; though it has thus far refused to place it on a government website free of charge making the report all but inaccessible to the Malaysian public.

ISA detainees continue to be subject to arbitrary detention, physical abuse, and ill-treatment, and without any effective judicial review on the merits of their detention. Despite a greater openness in his administration and willingness to engage with Malaysian rights advocates, there is no sign that Prime Minister Badawi intends to repeal the ISA and end its forty-five year history of abuse.