Opposition parties and human rights groups are furious over a government plan to amend the Internal Security Act (ISA) 1960 to block any attempt to disclose national security secrets in court.

The proposed amendment was revealed last Friday by de facto Law Minister Dr Rais Yatim (photo) who told Malay daily Utusan Malaysia that the idea was to eliminate the risk of evidence being revealed in court that could compromise national security.

Rais said the proposed amendment of Section 73(1) which relates to police powers to make an arrest and impose 60 days of detention for interrogation was also to prevent disruption of investigations.

It would ensure that police are not compelled to reveal details of controversial arrests and detentions made in relation to safeguarding internal security, he said, indicating that the proposal would be tabled in the Dewan Rakyat soon.

Rais also reportedly said the court cannot interfere in internal security matters, which is within executive control.

The proposal arose after the Sept 6 Federal Court decision to allow an appeal by five reformasi leaders that their detention for the first 60 days under the ISA was unlawful.

'Heinous' attempt

Those contacted by malaysiakini were of the opinion that the amendment would grant power without accountability, enabling the authorities to ignore checks and balances provided by the legal system.

DAP chairperson Lim Kit Siang (photo) described the proposal as an attempt to pervert the rule of law and to "undo" the Federal Court judgment, which reaffirmed the objective test on the detaining power of police.

If passed, the amendment would stop the court from implementing the test which required the police to show proof that any disputed arrest or detention is appropriate and legal, he explained.

"More importantly, it would make it impossible for ISA detainees to give evidence to support the contention that their detention is illegal or is made in bad faith. They can no longer challenge the authorities," Lim said.

"Rais, with his legal background, should have advised the government on ways to apply the spirit of the Federal Court judgment instead of undoing it."

He said the minister's proposal was the "most perverted and hideous" attempt to further subvert human rights, adding his hope that there would be strong objection all round to the idea.

Disrespect of court

PAS Youth legal and human rights division director Ahmad Sabki Yusuf said the proposed amendment would undermine a detainee's constitutional right to counsel.

"The right to counsel enables detainees to take their case to court to question the credibility of their detention. This would be of no use if the counsel is unable to present facts and arguments before the court," he said.

"And what good would a court be to the detainees if they cannot present their evidence to judges who may help make a fair decision."

Ahmad said the proposal dishonours the recent ISA judgment, which had given some hope that the constitutional rights of citizens would not be violated.

He said nothing should prevent the court from assessing any evidence as it provides "a check and balance" to ensure that the police do not misuse the powers provided to them under the ISA.

The proposal, he said, showed that the minister does not respect the court's independence and integrity, and also proved his willingness to sacrifice civil liberties to protect the government's interest.

"If any amendment is made, it should be to provide some space for civil liberties. Of course, it would be better if the whole act is thrown out," he said.

Habeas corpus meaningless

Describing the proposed amendment as "scary", PRM president Dr Syed Husin Ali (photo) said it is nothing but a way to prevent the public from gaining access to information that would expose corrupt and abusive practices.

"Rais should be thinking of ways to repeal the ISA. Instead he is taking reverse steps to tighten the ISA and make it more draconian. He never fails to come out with shameful statements, which depicts lack of interest in protecting the rakyat's interests," Syed Husin alleged.

"It would be more shameful for him if the amendment is passed to guard so-called secrets from being heard in court. It would allow [the police] to hide under the claims of national security and there'll be no end or limit to such abuse."

The move would also mean that the rakyat may be denied from seeking justice considering that the court is their only avenue to question the authorities.

Lawyer R Sivarasa (photo) of Suaram said that, if the amendment were enforced, a detainee's right to file a habeas corpus application for release under Article 5 of the Constitution would be rendered meaningless.

"If this (the move) is true, it would be a slap in the face of the court as the recent judgment by the Federal Court tells the government and the police to be accountable to a certain degree in using the ISA but they are now telling the court that they will not do it," he said.

As to Rais' statement that only the executive should be privy to matters of national security, Sivarasa said the court ruling does not deny that fact.

However, he said Chief Judge of Sabah and Sarawak Steve Shim had said that, in cases where evidence provided by the detainees indicates the arrests were made in bad faith, the authorities must prove that the ISA was used in good faith.

"We provided details of what we think constituted bad faith. The police failed to challenge this with cogent evidence and therefore the court ruled our clients' arrests as illegal," said Sivarasa, who was among the lawyers who had represented five reformasi activists.

Sivarasa, who is also a PRM vice-president, added that the proposal is meant to cover up "illegal activities" of the police and that it confirmed the government's mala fide (bad faith), as well as its intention to use the ISA for political gains.

Proposal 'alarming'

Keadilan secretary-general Sahri Bahri said the proposal was "unbecoming, alarming and a step backward from democracy".

"The minister should at least take note of the various representations made by many organisations and political parties to the Human Rights Commission (Suhakam) condemning the act. Even Suhakam has said the act breaches human rights," he said.

Keadilan hoped that Rais would retract the proposal and instead carry out a thorough review of the ISA.

Abolish ISA Movement vice president Zahir Hassan said the amendment, if approved, would oust the separation of powers between the legislative, executive and judiciary.

He claimed that the government has been consistent in making changes to amendments that are based purely on political considerations.

"From what Rais said, it's clear that the executive will again encroach into the powers of the other two [arms]. This means that there will less transparency, which will breed corrupt practices," he said.

Details of judgment

On Sept 6, the Federal Court found that the five appellants Parti Keadilan Nasional youth chief Mohd Ezam Mohd Nor, Keadilan vice president Tian Chua, reformasi, malaysiakini columnist, filmmaker Hishammudin Rais and Jemaah Islah Malaysia president Saari Sungib and Free Anwar Campaign director Raja Petra Raja Kamaruddin had proven that there were elements of bad faith in their detention.

It stated that they were arrested and detained to help police conduct investigations into their actions which were said to be prejudicial to the security of Malaysia.

Yet, affidavits filed by the detainees showed that they were not interrogated on militant activities or about getting explosives.

The court ruled that their detention was merely for intelligence gathering which had no link with national security.

However, the court did not order their release because they are being held under a two-year detention order signed by the home minister. Three of the detainees are serving the order at the Kamunting detention camp. Raja Petra was released before the expiry of the initial 60-day detention while Ezam has been found guilty since August of contravening the Official Secrets Act and is serving a jail sentence at the Kajang Prison.