Islamic Human Rights Commission
3rd February 2004
Briefing: Anti-Terrorism Legislation in South East Asia
In the wake of 11th September, numerous countries around the world enacted draconian legislative measures designed to crack down on international terrorism. Such laws have been implemented in places as diverse as the UK, India and Egypt. South East Asia has not escaped the trend which grants power to state authorities to violate the most fundamental human rights such as the right to a fair trial and the right to liberty. The following briefing will examine the anti-terrorism legislation in place in various countries in South East Asia and the implications for human rights.
The primary piece of anti-terrorism legislation being enforced in Malaysia is the Internal Security Act. The ISA was enacted in 1960 during the country’s bloody struggle against communist guerrillas. The ISA introduced preventive detention law into Malaysia. Under Section 73 (1) of the ISA, police may detain any person for up to 60 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.” Under section 8, after 60 days, the Minister of Home Affairs can then extend the period of detention without trial for up to two years, without submitting any evidence for review by the courts, by issuing a detention order, which is renewable indefinitely. In June 1989, the ISA was amended to exclude any judicial review of the grounds of detention made under section 8 of the ISA. Thus detainees held under this section are not only denied a fair and public trial, they are also denied their minimum right to an effective opportunity to be heard promptly by an independent Judiciary which may decide on the lawfulness of their detention and may order their release if their detention were to be found unlawful. Now, courts may only examine and review technical matters pertaining to the ISA arrest.
The ISA also allows for restrictions on the freedom of assembly, association and expression, and freedom of movement, residence and employment. It allows for the closing of schools and educational institutions if they are used as a meeting place for an unlawful organisation or for other reasons deemed detrimental to the interests of Malaysia or the public.
Although the stated aim of the legislation is to combat terrorism, numerous human rights groups have claimed that it is politically motivated and used as an instrument to silence dissent, and control public life and civil society. It was enacted in the context of a civil emergency and was intended for a very narrow, specific purpose, i.e. to round up alleged “communist insurgents”. Since 1960, thousands of people such as trade unionists, student leaders, labour activists, political activists, religious groups, academicians, and NGO activists, have been arrested under the ISA. Many political activists have been detained for over a decade. The ISA is consistently used against people who criticise the government and defend human rights. The questioning often has nothing to do with the offences alleged but the apparent aim is to turn them against their political allies.
Some individuals have been arrested and detained on grounds that do not satisfy the criteria of being prejudicial to the national security of the country, and the detentions as such were contrary to the purpose of the ISA. For example, individuals have been detained under the ISA for allegedly counterfeiting coins, falsifying documents and human trafficking. These situations could have been dealt with under the relevant laws creating the relevant criminal offences. Other examples of arbitrary detention include the arrest and detention of individuals for the collateral or ulterior purpose of gathering of intelligence that were wholly unconnected with national security issues and the arrest and detention of a director of a bank who was believed to have caused the bank to suffer substantial losses. The right of a person not to be subjected to arbitrary arrest or detention is enshrined in article 9 of the UDHR.
The U.S. State Department’s Country Report on Human Rights Practices issued on March 4, 2002, was highly critical of Malaysia’s continued use of the ISA and noted that it “seemed intended to prevent the detainees, against whom there are no criminal charges, from exercising internationally recognised rights of free speech, political expression and assembly”. Currently, the ISA is being used to detain religious leaders and activists as well as key leaders of the pro-reform movements and opposition political parties.
In 1987, the ISA was used to arrest President Mahathir’s political opponents. In 1990, it was used against politicians in Sabah and East Malaysia. In November 1997, 10 people were arrested for allegedly spreading Shi’ite teachings deemed detrimental to national security. The ISA was used in 1998 to arrest Deputy Prime Minister Anwar Ibrahim and six of his political supporters. Anwar was the primary leader of opposition to Mahathir, and is currently serving a 15-year sentence following convictions in 1999 and 2000 in politically motivated trials for sodomy and corruption and abuse of power.
In April 2001, a senior figure in the opposition Keadilan (National Justice) party, Ezam Mohamed Noor, was arrested with 9 other leading politicians under the ISA. They were accused of plotting a violent rebellion against the state and held for weeks without charge and without access to family or lawyers. Ezam was ordered to be detained for a further 2 years in a remote detention centre in Kamating, North Malaysia. In August 2001, 10 suspected militants were arrested and detained under the ISA on suspicion of belonging to the Malaysian Mujahideen Group (KMM). The following month, 6 more were arrested on the same grounds. On the 14 April 2002, 14 more suspected KMM members were arrested under the ISA. A further 6 men were arrested in October. Most of the individuals held since August 2000 are alleged to be members or supporters of the opposition party, Parti Islam se Malaysia (PAS). Currently, an estimated 70 individuals are being detained under the ISA. In November 2003, 15 detainees, held for over 3 years, were released on the grounds that they no longer posed a threat to national security. In the last year several ‘madresahs’ i.e. religious schools have been closed down using ISA upon the pretext that they may be fomenting terrorism. Largely affected however have been schools run under the infrastructure of PAS.
Former detainees have testified about being subjected to severe physical and psychological torture while in detention. This includes but is not limited to physical assault, forced nudity, sleep deprivation, 24 hour interrogation, death threats, and threats of harm, including rape, to family members. The detention cells are acutely small with no air or light. The whole detention is designed to humiliate and frighten the detainees. This often leads to the signing of state-manufactured “confessions”. During the trial of Anwar Ibrahim, members of the police told the court the process of “extracting confessions” under duress was called “turning over” and suggested it was standard police practice. The right of a person not to be subjected to inhuman or degrading treatment or punishment is enshrined in article 5 of the UDHR.
The ISA is immoral and cruel. It condones violence, torture and humiliation. It is contrary to fundamental principles of international law, including the right to liberty, freedom from arbitrary arrest, to be informed of the reason for your arrest, the presumption of innocence, and the right to a fair and open trial in a court of law. It allows for arbitrary arrest and indefinite detention without trial Due to the 1989 amendment, the provision for judicial review has been removed. This gives absolute power to the Minister of Home Affairs to detain people at his will. There is no clear definition or criteria to determine which individuals pose a threat to security. Consequently, the executive has permanent, unfettered discretion to determine, according to their subjective interpretation, who, what and when a person might pose a potential threat to national security or public order. In April 2003, the Malaysian government’s own Human Rights Commission (SUHAKAM), recommended abolishing the ISA and replacing it with a new anti-subversion law. In doing so, it added its voice to the many Malaysian human rights groups, the Malaysian Bar Council, and international human rights groups, which have called for its repeal.
Singapore too has in place an Internal Security Act that empowers the Home Minister to suspend a detention order subject to all or any of a number of restrictive conditions, including arrangement of residence and employment. The Minister may prohibit someone being out of doors during certain hours. The Minister may also require an individual to notify the police of their movements and to obtain permission before travelling. Persons charged under the Act may also be banned from participating in political activities.
On 16th September 2002, the government announced the arrest of 21 suspected militants on suspicion of having links to international terrorism. More than a dozen more were arrested on similar charges in December. All arrested were Muslims.
On 11th August 2003, the government of Thailand passed two Executive Decrees designed to impose anti-terrorist measures. Under the decrees, any person who threatens to commit a terrorist act or shows behaviour convincing enough to believe the person will do as said or influences people into such act, will be charged as a terrorist. Individuals who commit acts of terror, including spreading fear and harming the public and damaging public or private property, can face the death penalty, life imprisonment, a jail sentence or fines.
Before issuing the two decrees, the government was in total denial of a terrorist threat. It claimed that there was no need for an anti-terrorism law. Thailand has already sufficient provision in the penal code and anti-money laundering laws to deal with terrorist groups. Consequently, there was no need for a new law to counter terrorism.
The decrees were issued in a form of executive decrees that normally are executable in the case of national emergencies. Any laws that call for the death penalty are considered very sensitive and affect the whole public. Therefore they must be considered and debated in parliament. These decrees were issued without parliamentary scrutiny. This violates parliamentary procedure, the constitution and insults the democratic process of checks and balances.
There are real fears that the government will suppress indiscriminately dissidents in similar ways as anti-Communist laws of the past. The new decrees may be misused to arrest anyone considered a danger to the government.
On the 18 October 2002, in the wake of the Bali bombing, President Sukarnoputri signed an anti-terrorism decree, Perpu No.1 2002. Under this decree, individuals suspected of posing a threat to the state may be detained without charge or trial for up to 6 months. While the decree makes no direct reference to the Indonesian Armed Forces, the TNI, some of its provisions open the way for TNI to play a decisive role in identifying such individuals. There is a great fear that this may lead the way for a return to the authoritarianism of the Suharto era.
The problems with the decree are many. “Terrorism” is defined in such a way as to include ordinary crimes committed during legitimate political activities. Activists in Aceh and West Papua are extremely fearful that the decree will be used against them. Article 6 defines a “terrorist” as “persons who deliberately use violence or the threat of violence to create an atmosphere of terror or spread fear among the general public or create victims on a mass scale by depriving persons of their liberty or their life, or inflict damage or destruction on strategic, vital objects of the living environment or public facilities or international facilities.” This broad definition encompasses ordinary crimes such as criminal damage or common assault, which might occur during legitimate political actions such as demonstrations outside mines and energy projects. Due to their status as “vital objects”, such assets are routinely given special protection by the armed forces. It is precisely in the vicinity of these enterprises that some of the worst human rights violations have occurred because of the presence of the military.
The decree also specifically provides that “intelligence reports” may be used to initiate a formal investigation. “Intelligence reports” are the product of agencies run by the armed forces and the police. Such a law grants intelligence agencies broad powers to arrest any suspected terrorist on the basis of preliminary evidence, which would normally be insufficient for charges to be brought. Such intelligence may amount to no more than a mere suspicion that a person is involved in terrorism. More worrying is the fact that Indonesia’s top intelligence agency is Badan Intelligen Negara (BIN), the State intelligence agency led by retired Lieutenant General Hendropriyono, who was himself implicated in a grave atrocity against Muslim civilians in Lampung in 1987. This highly dangerous provision gives BIN and the military a direct and possibly influential role in identifying suspects and ensuring their arrest and detention.
In March 2003, new anti-terrorism legislation based on the decree was passed by the Indonesian parliament. The legislation allows for the detention without charge for up to 6 months of suspected terrorists, the use of intelligence reports as evidence in court, and the interception of mail and tapping of telephones by investigators. This renewed emphasis on internal security is deeply worrying and opens the immediate possibility that there will be neglect of more pressing issues, such as military and judicial reform the security forces will be allowed to reinforce their political power and influence. The decree will divert attention from the widespread and systematic acts of state terror which in 40 years killed thousands of more people than the Bali bomb.
The current measures to address terrorism in South East Asia have focused on military solutions and the enforcement of security legislation. Draconian legislation designed to curb communist insurgency is as repressive today as it was thirty years ago. The only difference today is that the targets of the legislation are Muslim reformists and dissidents as well as opposition parties. It seems that a pattern is emerging whereby South East Asian leaders see arresting Muslims as fundamental to maintaining their political power.
Such measures have direct implications for human rights. Fundamental freedoms such as the right to liberty, the right to a fair trial and the presumption of innocence (enshrined in articles 3, 10 and 11(1) of the Universal Declaration of Human Rights) are suspended in the name of security. Such counter-terrorism policies do not focus on the root causes of the problems: the conditions which encourage terrorism such as economic disparities, ineffective law enforcement and widespread corruption. The long-term solution to terrorism must not only address the political and military dimensions but also the social and economic aspects of the issues.
Islamic Human Rights Commission
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