The release of four of the ISA 6 from the two-year ministerial order to detain them under the draconian Internal Security Act (ISA) is to be celebrated.

There is however, little common sense in detaining Dr Badrulamin Bahron and Lokman Adam until June 12. As rightly pointed out by several people including lawyer R Sivarasa and DAP national chairperson Lim Kit Siang, the delay in their release shows spitefulness and vindictiveness.

Would 12 days really add to the "lesson to be learned" as a government official would have us believe?

There should be no further detention order against these two or against Mohd Ezam Mohd Nor who is due to be released from his sentence under the Official Secrets Act, this December.

After all, the two-year detention order signed by Abdullah Ahmad Badawi, the home minister who is also deputy prime minister, remains tainted with legal controversy.

It is simply untenable now to insist on the legality of the two-year detention order when the Federal Court had ruled on Sept 6, 2002 that the initial arrest is bad at law.

Bad faith

The case simply put is, a detention order cannot stand on its own. It was based on the first arrest. The arrest was held void. Pak Lah was in effect, foot-dragging on a bad leg. This did little to shore up his image as the premier-in-waiting of which Great Things are expected.

It would have been politically correct if Pak Lah had ordered the release all those detained in the April 2001 crackdown of reformasi activists, consequent to the ruling that the arrest was done in bad faith.

That would be more democratically defensible. It would have elevated him as the morally upright statesman that most people desire him to be. Instead he has simply allowed his mistake to merely fizzle out with time.

The Federal Court ruling has been seen by the public as creating uncertainty in the application and implementation of the law. Pak Lah's two-year detention order under Section 8(1) of the ISA cannot be seen as separate from the Section 73 arrest and 60 days initial detention.

Since Sept 6, the Federal Court decision has been construed by many, as a balancing act rather than checking the excesses of executive action. It reminds us of the long struggle ahead in redeeming our political institutions, a responsible and accountable executive, and an independent judiciary.

Political struggle

Whether we like or not, the road to strengthening our institutions of democracy is still largely a political one rather than legal.

"Political" in this context is not necessary party politics or electoral democracy. The release of the ISA 6 (with Mohd Ezam in December) is largely the result of pressure by civil society actors and human rights defenders at home and abroad. Public vigilance remains the key factor.

Public vigilance of democracy comes to nought, if there is little protection and respect for the freedom of speech, assembly and association in our legal and political system.

Hishamuddin Rais and Tian Chua were not immediately released from state custody on the expiry of the detention order on June 1, as they were facing charges of being in illegal assemblies in 1999 and 2000.

The duo were among several people arrested and charged for illegal assembly in Sept 1999. Several hundred people had gathered in the vicinity of the National Mosque to protest the allegations in court that jailed former deputy premier Anwar Ibrahim was given arsenic during detention.

Both Hihamuddin and Tian Chua face another similar charge for protesting the Harakah circulation restriction in 2000. Tian Chua is also charged with rioting with several other Keadilan leaders at the November 1999 Lunas by-election.

These are political protests. There has been no damage to property nor injury to persons in these situations save when the police moved in to break up these protests in the Sept 1999 incident and the Harakah protest.

In the Lunas by-election, the campaign workers and supporters sought to divert the buses to the Lunas police station. From the reports at that time, they had intended to seek police assistance in verifying that the passengers are not 'imported voters'.

The law on illegal assemblies under the Penal Code and the Police Act are perceived to be criminal in nature.

When a peaceful protest does nothing but to speak out on injustices and unfairness that assembly must be one which deserves constitutional protection.

It is most unfortunate that the law as interpreted by our courts read literally and do not make any distinction between protected freedoms and crimes.

People's right

The 2001 Suhakam (Human Rights Commission of Malaysia) freedom of assembly report assumes that people have a right to peaceful protest.

The commission's press statement on Aug 3, 2001 states: "Our recommendations are based on the firm belief that peaceful assemblies are possible in present day Malaysia."

Suhakam recognises restrictions on grounds of national security and public order but urge "the government to be transparent and to provide evidence to justify the use of these restrictions in denying the public their right to freedom of assembly."

The report did not however make any attempt to review decided cases where the right of peaceful protest is never assumed by the courts. Suhakam makes a political plea to the government. It did not address the courts.

The courts and in the case under the Penal Code and the Police Act, the court having jurisdiction is the lowest court; the magistrates' courts, by and large have construed "illegal assembly" laws as a strict liability law, as a crime.

Did we ever wonder why cases are heard in the magistrates' courts like a common criminal case instead of being heard in the High Court when right of speech and assembly are constitutional rights which should be rightly dispensed in the higher courts? There is no recognition of the importance of the right of speech, assembly and association.

We have to still struggle to institutionalise a more tolerant and human response to forms of organised protests which stay broadly within the realm of non-violence. These are political processes and are not crimes.

Organised, non-violent protests or acts of non-violent civil disobedience could help create rather than undermine political stability.

Malaysia is a democracy. It is only totalitarian regimes which blur or erase the line between politics and crime and where any opposition politics (not limited to party politics) is also construed as crime.

Students' plight

June 8 this year marks the second anniversary of the peaceful assembly of a 100 or so of students from local universities and private colleges to protest the ISA and the April 2000 arrests of the reformasi activists.

The assembly was held in the vicinity of the National Mosque. Seven students were detained after being beaten by police upon dispersal. They were also beaten in police custody during the 24 hour period after their arrest.

While we celebrate the end of the two-year dubious detention order against the ISA 6, we need to be reminded that the seven students arrested and charged for illegal assembly (the ISA 7) have still not concluded their trial, two years after the incident. All were suspended from their studies as allowed under the University and University Colleges Act (UUCA).

Their complaints and various memoranda to Suhakam have not provided any remedy.

It would appear that Suhakam has since washed their hands of the matter. The students have stopped going to Suhakam on the June 8 incident.

According to Syahrir Mahmood, one of the campaigners for the ISA 7, Suhakam does not champion human rights, it merely works out technical matters pertaining to human rights.

After two years and the ISA 7 still in the dock, it is little wonder that our young human rights defenders are disillusioned.

The ISA 7 were beaten by police without recourse, their studies virtually terminated and they are prevented from studying in any public university under the UUCA until they are acquitted.

Their political stand as expressed on June 8, 2001: the ISA is a draconian and undemocratic law which allows for preventive detention without trial. In this country, to speak out against the ISA in an organised peaceful assembly is a crime.