To the two Australian human rights activists, Damien Lawson and Tim Anderson, who represent about 20 non-governmental organisations involved in human rights causes in Australia and are now on a three-day fact-finding mission to Malaysia to get a better idea of the ISA and how it had affected Malaysians here, I would say that, unlike the unsatisfactory legislation here, their country may adopt a parallel preventive detention legislation to address subversion and terrorism provided that appropriate civil rights and due process safeguards are built into the provisions. (See
Aussie activists in Malaysia to study the 'evils' of ISA
).
This following provision ought to be considered for adoption:
"Any senior police officer above the rank of chief inspector may, without a warrant, arrest and detain anyone he/she has "reason to believe" has acted or likely to act in "any manner prejudicial to the security of the country
provided always that
:
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the expression "reason to believe" is objective, and not subjective, and by virtue thereof is subject to judicial review upon application of the detainee;
the expression "prejudicial to the security of the country" shall refer to the real likelihood of the following acts being imminent and perpetrated by the detainee:
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acts that incite or will potentially incite violence or which is likely to cause racial or communal disharmony or hostility between different communities or racial groups;
acts that are prejudicial or likely to be prejudicial to the safety of people going about their lawful business or which excites civil disorder and riot or likely to excite feelings of hatred or contempt of the lawfully constituted government with the objective of it being overthrown by unconstitutional and illegal means (normal dissent, criticisms and civil protests as permitted in democratic culture of rights recognition being excepted) or acts inciting disaffection and discontent to the extent of fomenting rebellion and insurrection by groups of people against the government;
acts that will cause death, harm to health or bodily injury to a significant number of people by toxic or poisonous chemicals, microbial, virus or other biological agent or toxin, radiation or radioactivity, explosion and generally all such terrorists acts the effects of which are to endanger and harm the lives health and safety of the public or sections thereof;
acts that regardless whether there is collusion with foreign powers will threaten the ability of the government to preserve the sovereignty, security or territorial integrity of the country;
acts that impair or threaten the military capability or raise discontent or disaffection within the police and armed forces or acts that disseminate sensitive classified and confidential military information.
In detaining a person, the police officer need not concern himself with the acts detrimental to national security having already taken place but the fact that they are about to take place and for this he has to be satisfied on the basis of observation and surveillance and investigations over a period of time.
All records of surveillance, observation and investigation are reviewable by the courts and having regard to the sensitivity of the information may, at the court's discretion, not be disclosed or divulged as public information.
Detainees shall not be deprived of the right to counsel at all times.
