The ISA was enacted in 1960 at the end of the Communist insurgency in Malaysia (then known as the Federated States of Malaya) as a measure to ensure internal security by detaining without trial suspected communist insurgents who may be planning and implementing acts that endanger public safety. According to the Malaysian Centre of Public Policy Studies, since its enactment, more than 10,000 citizens have been ‘deprived of their liberty and have been mentally and physically tortured under the ISA’. Furthermore, the Malayan Communist Party (MCP) has since been disbanded and Malaysia has established diplomatic ties with China, the MCP’s main benefactor. Those detained now are often Malaysian political activists, rather than military and para-military agents that threaten the nation. Journalists, academics, activists, religious leaders, students and politicians have been detained for the ‘crime’ of commenting critically on the UMNO-led political ideology. The ISA has been used to create an atmosphere of fear that curtails citizens’ participation in legitimate discussions on public issues.

It is important to recognise just how restrictive the ISA law is. While the original ISA legislation allowed for judicial review, this clause was removed by the Mahathir regime. The Home Minister now has absolute power to determine who is a threat to ‘national security’ and does not need to justify his/her actions. With the judicial system and security agencies (police, military, and civil defence forces) under the thumb of the ruling party, this law gives the Home Minister unbridled power [pdf].

Under the ISA, a person may be detained for up to 60 days without trial for an act which is ‘prejudicial to the security of the country’. Exactly what constitutes a prejudice to security has been—and continues to be—unclear. The law also suffers from various procedural deficiencies. A person detained under the ISA does not have effective recourse to legal protection nor any opportunity to establish innocence. This often leads to detention for extended periods. After the initial 60 days of incarceration, detention can be extended for a further two years and then renewed for successive two-year periods. A detainee can thus expect to remain in detention indefinitely. During the first 60 days of detention, detainees are allowed no family visits and no access to legal counsel. If a further two-year detention is approved, the detainee is taken to the Kamunting Detention Centre where they are held in isolation in what the Asia Pacific Human Rights Network describes as ‘small, poorly ventilated cells’. An example of this indefinite detention is Dr Abdullah Daud, a geo-info Lecturer at the University of Technology in Johor, who has been detained under the ISA for more than six years. The highly restrictive nature of this law, coupled with the tendency of the Malaysian government to abuse it, demonstrates why the ISA must be abolished, rather than reformed.

The ISA has been a powerful tool in maintaining UMNO hegemony. Nevertheless, in abolishing the ISA, Mr Najib’s administration may gain more than it loses. Although many vocal UMNO supporters are Malay chauvinists, hence partially explaining Mr Najib’s fear of implementing reforms which are perceived to be endangering Ketuanan Melayu (Malay supremacy), these extremists form only a minority (albeit a significant minority) within the Malaysian electorate. More broadly, the result of the 2008 general elections demonstrated that the majority of the Malaysian populace want civil and political reforms. The increasing regularity of public demonstrations further reveals that Malaysians are no longer willing to sacrifice their democratic freedoms. The ISA does not directly threaten Ketuanan Melayu in the same way as the affirmative action does. Therefore, abolishing the ISA could pacify the collective demands for civil and political reforms without jeopardizing UMNO’s pro-Malay support base. Najib could point out to the extremist faction in UMNO that the Malaysian Penal Code is adequate in protecting public safety without needing to fall back on the repressive ISA.

Malaysians want a government that guarantees the safety of its citizens without sacrificing genuine civil and political liberties. The ISA may have been an appropriate legislative response to the period of violent Communist insurgency, but UMNO’s ongoing misuse of the law, coupled with social demands for greater civil and political freedoms, underlines its archaic character and the need for its abolition. In abolishing the ISA, Mr Najib could demonstrate his genuine commitment to democratic reform. Malaysia may need legislation for terrorism-related crimes; it definitely does not need the ISA.

Siaan Ansori and Greg Lopez are postgraduate students in the College of Asia and the Pacific at the Australian National University.