Recently, Tun Dr Mahathir had
proposed to government to bring back Internal Security Act (ISA) and Inspector
General of Police had also suggested that he wanted the government to consider
ISA to be implemented again which was abolished almost two years ago to tackle
various security problems in our country now.
The rising of crime and terrorist
attacks in Sabah probably had driven both of them to have this suggestion. In
my opinion, rather than brings back the ISA, the government should enact new
security laws which have all the necessary elements that missing on the current
legislation to curb such problems.
For that reasons the government
can look into various security legislation from United Kingdom and Australia to
draft new security legislation rather than bring a legislation which already
was repealed.
There are surveys in UK had stated that the public increasingly willing to give up theirs civil liberties in the name of counter-terrorism.
In Terrorism Act 2000, its widens the definition of terrorism to apply
to domestic terrorism and include any "political, religious or
ideological" cause that uses or threatens violence against people
or property; creates new offences of inciting terrorism; enhances police powers,
including stop and search and pre-charge detention for seven days; outlaws
terrorist groups, including al-Qaeda.
In my view, this definition is
very much suited for the current situation that has happening now to maintain
the homeland security to make sure the security and enforcement agencies have
wider powers to maintain peace and security in Malaysia by inserting this
definition into the new legislation. In accordance with this definition whoever
terrorize and destabilize our country can be detained, tried and sentenced.
The Anti-Terrorism, Crime and Security Act 2001 is initially enabled
the home secretary to indefinitely detain, without charge or trial, foreign
nationals who are suspected of terrorism – a system now replaced with control
orders after the House of Lords ruling in A
and Others; extends executive powers over freezing bank accounts and assets
of suspected terrorists.
In addition, the Prevention of Terrorism Act 2000 is introduces control
orders, which allow the government to restrict the activities of individuals it
suspects of "involvement in terrorist-related activity", but for whom
there is not sufficient evidence to charge.
Further, the Terrorism Act 2006 is also extends the pre-charge detention period
from 14 to 28 days (the Criminal Justice Act 2003 had increased it from seven
to 14 days); introduces a prohibition on the "glorification" of
terrorism.
Finally, Counter-Terrorism Act 2008 is enables post-charge questioning of
terrorist suspects; allows constables to take fingerprints and DNA samples from
individuals subject to control orders; amends the definition of terrorism by
inserting a racial cause.
Generally these Acts of
parliament in UK has ever-expanding definition of terrorism, the creeping
increase to periods of pre-charge detention, the control order regime and
increasing use of closed tribunal proceedings, the widespread use of stop and
search powers, the curtailment of the right to protest, and issues of state
terrorism and the right to rebel.
Interestingly, under Human Rights Act 1998, the courts have
limited power even though they find legislation to be incompatible with human
rights, its can make a "declaration of incompatibility" and must then
leave it up to the government to change the law.
In United States of America, the
passing of the Uniting and Strengthening
America by Providing Appropriate Tools Required to Intercept and Obstruct
Terrorism Act (USA Patriot Act).
This is an Act where the executive has wholesome power overriding fundamental
rights in the name of terrorism and homeland security.
Australia has long played a
pivotal role by creating legislation on counter-terrorism, national security
and other cross-jurisdictional offences.
The Australian Security Intelligence Organisation Act 1979 is the
legislation which sets out the functions of the Australia Security Intelligence
Organisation (ASIO) i.e. Australia’s security service. This legislation,
amongst other things, empowers ASIO to obtain warrants for the purpose of
undertaking surveillance and to detain and question a person who may have
information important to the gathering of intelligence in relation to a
terrorist activity.
The Crimes Act 1914 which deals with crime, the powers of the
authorities to investigate it and many other related issues including sabotage,
treachery, disclosure of information and other issues.
The Crimes (Foreign Incursions and Recruitment) Act 1978 is the
legislation contains offences designed to prohibit Australian citizens and
those ordinarily resident in Australia from engaging in hostile activities in a
foreign state and recruiting people to engage in hostile activities in a
foreign state.
The Criminal Code Act 1995 (Criminal Code) is contains a range of
offences for terrorism and terrorism related acts.
The Surveillance Devices Act 2004 is establishes procedures for
officers to obtain warrants, emergency authorisations and tracking device
authorisations for the installation and use of surveillance devices in relation
to criminal investigations and other initiatives.
The Telecommunications (Interception and Access) Act 1979 is permits
ASIO to intercept telecommunications under warrant for intelligence gathering
purposes including in relation to threats of terrorism. It also provides
authority, where a warrant is obtained for Australian law enforcement bodies to
intercept telecommunications in respect of investigations into serious
offences, including a range of terrorism offences.
There is constantly expected to
be some conflict between security legislation and human rights. That because its
very nature, the legislation restricts freedom, rights and in some cases,
liberty. Therefore it is impossible to have a legislation to tackle security
issues and crime.
The government always needs to
update existing legislation if there is any needs or otherwise can enact new
laws to comprehend as the matters concern. This legislation must comply with
the requirements of Part 2 of the Federal Constitution. The Internal Security
Act 1960 had its purpose.
That’s purpose was fulfilled when Community party of
Malaya had given up its arm struggle against Malaya/Malaysia. Therefore it is
improper to bring back an Act which was already repealed.
In nutshell, the government cannot
create a single comprehensive security law because the requirements and needs
are always changing. Therefore the government needs to be progressive and
innovative by creating various types of legislation to tackle security issues
and crime in Malaysia.
References:
- http://www.parliament.uk/business/publications/research/key-issues-for-the-new-parliament/security-and-liberty/reviewing-counter-terrorism-legislation/
- http://www.theguardian.com/commentisfree/libertycentral/2009/jan/22/explainer-terrorism-legislation
http://www.nst.com.my/opinion/letters-to-the-editor/security-laws-legislation-must-be-updated-1.555021?cache=03%2F7.208965%2F7.261895%2F7.261895%2F7.266429%2F7.266429%2F7.266429%2F7.266429
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