Malaysia: Abolishing or Polishing “Preventive Detention” Law?

When Malaysian Prime Minister Najib Razak announced that the government will repeal some of the country’s most oppressive internal security laws, many citizens welcomed the reforms but also questioned Najib’s motives. One law to be repealed is the Internal Security Act (ISA) [pdf], a preventive detention law that allows the police to detain an individual without trial for two years, subject to indefinite renewal.

Implemented in 1960 to deter communist activity, the law has since been used to silence journalists, trade unions, students, religious groups, academics, NGOs, and labor and political activists. SUARAM, Malaysia’s leading human rights watchdog, estimates that roughly 10,000 people have been denied due process under the ISA, some for more than a decade. Assuming Parliament approves these proposed changes, Najib has already asserted that the ISA and three emergency decrees will be replaced by two new counterterrorism laws which will still allow for preventive detention.

The announcement comes in the lead-up to Malaysia’s next general elections and in the wake of the “Bersih 2.0” rally, in which more than 20,000 people ignored a government ban and took to the streets demanding electoral reform.Najib has good reason to be skittish about the pending elections, the date of which has not yet been set. In the last election in 2008, his ruling Barisan Nasional (BN) coalition lost its two-thirds parliamentary majority for the first time since 1957. And Najib’s personal approval ratings have fallen, in part due to the government’s heavy-handed response to the Bersih rally—police fired tear gas directly at protesters and arrested almost 1,700 peaceful demonstrators.

I spoke with Open Society Foundations grantee Premesh Chandran, cofounder and CEO of Malaysiakini, Malaysia’s leading independent online news source, and asked him about the significance of the government’s latest actions. 

Prime Minister Najib has promised to review the ISA since 2009, when he first came into office, but were you surprised by his announcement? Are you concerned that the government will just replace the ISA with more restrictive laws?

The executive branch has long relied on the ISA—which allows for indefinite detention without trial—as both a punitive and psychological tool against dissent. Hence it was a big surprise when Prime Minister Najib conceded to its abolishment. However, he has foreshadowed that the new laws will provide the government with significant powers to protect "national security.” While promises may be made that these new laws will have built in checks and balances, we do not believe that these laws can function fairly in the absence of an independent judiciary.

How much do you think this decision comes in response to the Bersih rallies? Do you think Najib was surprised by the amount of public support Bersih received?

I believe Najib’s mishandling of the Bersih rally plus the large numbers of people who turned out to demonstrate, created a crisis of confidence even within his inner circle. It was the first time that the middle class really mobilized, despite government attempts to clamp down and undermine the legitimacy of the demonstration by attacking their leaders as anti-Islam. Najib was obviously advised to make concessions in order to regain momentum ahead of the general election. However, unless some of the changes are implemented prior to the elections, I don’t see how the skeptical middle class will be convinced. In fact, if Najib does not follow through quickly, the announcement may even do him damage.

So, you don’t see Najib's announcement as a victory for democracy?

It’s a victory for the democratic movement. It shows that people need to organize and mobilize in order to generate concessions and change. It legitimizes Bersih's actions. I don't think it’s a victory for democracy—a bit too early for that.

What are the potential roadblocks to repealing the current legislation?

There may be some delays as hardliners negotiate to ensure that the new replacement laws are sufficient to maintain government control over dissent.

If the changes are approved, what do you think the government should do with the people currently detained under the ISA? What, if anything, do you think the government owes former detainees?

The government should admit that the ISA has been used for political purposes and hold a tribunal for former detainees to go on record about these injustices, followed by compensation. However, this is unlikely to happen under the current administration.

Najib also announced that he will make some changes to media and freedom of assembly laws. What impact do you think the repeal of the ISA and changes to the Printing Presses and Publications Act (PPPA) will have on the media, particularly online media like Malaysiakini?

The PPPA will be amended to remove the annual license renewal requirement for existing publications, but the initial licensing requirement will continue. So, independent media like Malaysiakini will still not be allowed to publish. I don’t think there will be any change to the media.