Ronald McCoy



In an opinion piece in the December 2001 issue of the Berita MMA, Dr S Radhakrishna has asked the question: Should the MMA get involved with the ISA? This is a question that he should have asked at the 1999 MMA annual general meeting, at which he was present when my resolution on Human Rights and the ISA was put to the house. The minutes of the AGM show that no one spoke against the resolution; Dato' Dr G Sreenevasan spoke in support of  the  resolution;  and  the  resolution  was  adopted  with  an  overwhelming  majority   -  75 for, 2 against, and 4 abstentions.


Dr Radhakrishna questions the democratic validity of resolutions or, for that matter, any decisions taken by the general body of members attending an annual general meeting, by arguing that the voting at general meetings "represents the view of the minority" because the numerical majority of the MMA membership was not present when the  vote was taken.


In fact, the president and other office bearers of the MMA are elected every year by votes that fall far short of half the MMA membership at the national or state level. For the past seven years, between 14 percent and 37 percent  of the membership voted in the election of the president. In other words, the president is invariably elected by a small minority of the membership. If members were to insist that only a numerical majority of the total membership can validate decisions, the MMA will cease to function. That is why there is a Constitution which lays down parameters to give legitimacy and practicality to the affairs of the MMA.


Being political

If my reading of Dr Radhakrishna's article is correct, he implies that the MMA should "remain apolitical and refrain from getting embroiled directly in a matter of political governance". He should know that MMA dialogues with the Ministry of Health and advocacy in health matters are essentially political acts. By being "apolitical" and fearing to disagree with government policies when they are wrong, the MMA, as an influential professional body, will lose its soul.


Victor Sidel, a distinguished past president of the American Public Health Association, has this to say about the issue: 'The physician's role is always a political one, whether physicians recognise it or not. Even a decision to try to be "apolitical" is a political act; it permits others in society to make the decisions that profoundly affect the health of the society without appropriate physician input. Since the doctor cannot claim to be apolitical, the only question is what political role he or she will play. Will it be a role centred around short-run, self-serving demands or will it be a role centred around the health needs of the people and efforts to move society and medicine in directions that will meet those needs?'

Doctors need to understand both the science of medicine and the societal context in which it is practised. Every aspect of health and health care has a political component. One must not confuse generic politics with partisan politics. While it would be wrong for the MMA to participate in partisan politics, it would also be morally wrong for the MMA to avert its eyes and not address government policies that affect the health and welfare of the community.


Human rights and the medical profession

Medical ethics and human rights increasingly use the same language, a logical consequence of the increasing impact of  human rights on health in a changing world.  Throughout history, society has charged physicians with the duty of understanding and alleviating causes of human suffering. As we enter the 21st century, the nature and extent of human suffering has compelled health providers to redefine their understanding of health and the scope of their professional  interests  and  responsibilities, and to re-examine their narrow clinical concepts of   health.


In the past, when health professionals become involved in the human rights debate, they were inclined to focus on the medical issues of treatment of survivors of abuse rather than on the socio-political or legal aspects of human rights violations. However, there is now a growing willingness within medical associations to become involved in socio-political action and education and to address the root causes of human rights violations.


Doctors have always been seen as key players in exposing institutionalised maltreatment. In the 1990s, the World Medical Association (WMA) responded to a changing human rights agenda by establishing its own Working Group on Human Rights. For example, it broadened the range of its resolutions by deploring the effect on health of new weapons and  trade embargoes that hampered the flow of medicines.


The WMA Resolution on Human Rights declared  that medical associations "have an essential role to play in calling attention to such violations in their countries", " to review the situation in their own countries so as to ensure that violations are not concealed as a result of fear of reprisals", and "to support individual physicians who call attention to human rights violations in their own countries".


As such, the MMA must take an ethical position when fundamental human rights are violated, regardless of the policies of the government in power. To do otherwise is to betray our very humanity and honour. Long before Steve Biko was tortured, assaulted and killed by security police in South Africa, his fundamental rights were being continually violated.


As doctors, we are privileged and burdened with the opportunity to uphold and protect the rights of people in our care. We boast of lofty oaths and declarations and talk of ethics and morals, which guide our actions. From time to time, we need to remind ourselves to be faithful and true to ourselves and our ideals.


Medical associations have a crucial role to play in educating doctors about human rights issues, supporting the introduction of human rights into curricula for medical students, developing guidelines for conduct, standing firm with doctors who do uphold human rights, and sanctioning those who do not.


As a member of the WMA, the MMA is beginning to focus on human rights in general.  Apart from referring the 1999 resolution on human rights to the Minister of Home Affairs and SUHAKAM, and apologetically raising the issue of the ISA at the 41st annual general meeting, and holding a joint consultation with the Commonwealth Medical Association on Medical Ethics and Human Rights, the MMA appears to be reluctant, if not fearful, to address those human rights issues that come into conflict with government policies.


Dr Radhakrishna is of the view that "our esteemed professional body", the MMA, would "lose respect forever", if it allowed itself "to get involved with the repeal of the ISA", a law that contravenes two articles of the Universal Declaration of Human Rights:


Article 9:  No one shall be subjected to arbitrary arrest, detention or exile.


Article10:  Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.


The MMA president, Datuk Dr N Athimulam, has informed me that the 1999 MMA resolution on health and human rights would be referred back to the next annual general meeting for review . If the MMA were to get cold feet and repudiate its position on human rights and the ISA, it  would be doing a great disservice to itself and to the Malaysian people. The MMA will stand to lose its credibility with medical associations all over the world. The esteem and respect for the MMA would be irretrievably harmed as was the South African Medical Association over the Steve Biko affair.


Instead, the MMA should take a proactive role and coordinate and facilitate projects on human rights with other medical associations, lawyers, journalists and human rights organisations, such as HAKAM, SUARAM and Amnesty International. In a letter to the MMA president, dated 30 October 2001, I drew his attention to a 24 October report by Amnesty International that six Malaysian prisoners of conscience, held under the ISA, were suffering health problems as a result of poor quality of food and their segregation from other prisoners in semi-solitary confinement in Kamunting Prison. I requested that the MMA Health and Human Rights Committee look into their health problems and ensure that the Standard Minimum Rules for the Treatment of Prisoners are being observed.  This request has not been acted on.


The origins of detention without trial

Preventive or executive detention without trial in Malaysia had its origins as early as 1930 during the British colonial regime. Essentially it was a political and administrative practice, exercised by the colonial government in power and aimed at individuals or groups who were deemed to be potentially dangerous to the State.


In 1948, when the armed struggle of the Malaysian Communist Party began, the British High Commissioner proclaimed a state of emergency by passing the Emergency Regulations Ordinance, which enabled the colonial government to detain persons for any period not exceeding one year, primarily to counter acts of violence. By the end of 1949, up to about 8,500 persons had been detained.


When the Emergency ended in 1960 and the Emergency Regulations were repealed, the a parliamentary debate on the ISA established that the ISA was enacted for the sole purpose of fighting the communist insurgency and that it was intended as a temporary measure until the communist threat was removed.


However, Parliament made the decision to continue with the ISA on the grounds that 600 armed terrorists still remained in the north and  could still pose a threat. However, once the 1989 Bangkok Accord was signed and communist activity ceased altogether, the need to persist with the ISA is no longer tenable and becomes highly questionable.


Hickling, the original draftsman of the ISA, commented in 1962: "….I must hope that the practice of imprisonment without trial, charge or conviction admitted by the Act 1960 will not be regarded as a permanent feature of the legal and political landscape of Malaya or for that matter of Asia generally."


Since 1960, the ISA has been amended repeatedly to enhance the discretionary powers of the police and the Minister of Home Affairs. In 1989, an amendment was made to disallow judicial review in any court of law. As a result, the courts have adopted an unduly restrictive position in their treatment of habeas corpus and judicial review applications. In all these amendments, the trend has not been to strengthen the rule of law but to add to the already formidable array of executive powers.


Preventive detention as a method of governance

Currently, there three major laws in force in Malaysia which provide for detention without trial: the Internal Security Act 1960, the Emergency (Public Order and Prevention of Crime) Ordinance 1969, and the Dangerous Drugs (Special Prevention Measures) Act 1985.


These laws enable the Minister of Home Affairs to detain a person for a period not exceeding two years on the suspicion or belief that the detention of that person is necessary in the interest of public order and security.


In addition, there are eleven other pieces of legislation that curtail and/or marginalise civil rights.


Detention without trial is the antithesis to the rule of law and it has come to be endorsed, if not accepted, when states are threatened by severe subversion or terrorism. We now see this happening in many parts of the  world, since the terrorist attacks on the United States on 11th September 2001. In Malaysia, the government has been praising the 'virtues' of the ISA and trying to justify it as an acceptable anti-terrorist instrument.


By invoking draconian laws like the ISA, human rights are violated and individuals deprived of their civil liberties. The meaning of the phrase "prejudicial to the security of Malaysia" has not been defined objectively. Its interpretation has been left to the political expediency of  the executive. The courts have willingly complied and have divested themselves of the jurisdiction to question the subjectivity and discretion of the executive. As long as this prevails, the rule of law in the preservation of fundamental human rights becomes marginalised.


Through the ISA, persons may be detained and held incommunicado in unknown locations for sixty days for interrogation. Denied access to lawyers, family and independent medical care, they are at grave risk of police brutality and abusive interrogation methods. There have been  numerous accounts of verbal abuse, threats of physical harm to detainees or their spouses, and humiliating experiences of being stripped naked and forced to crawl on the floor.


Lets look at some of the detentions made under the ISA:


        Tan Hock Hin, a former Socialist Front legislator for the constituency of Jelutong, Penang, was detained for 15 years (1967-1982).


        Dr M K Rajakumar, a former president of the MMA, was detained for almost three years (1966-1969) "for consciously or unconsciously supporting policies that could help the communist cause."


        Loo Ming Liong, suspected of being a communist, was detained for 16 years (1972-1988).


        Dr Syed Husin Ali, a sociologist in the University of Malaya, was detained for almost six years (1974-1980) "for being involved willingly and knowingly in an attempt to overthrow the government by force and for cooperating with the communists."


        In Operation Lalang in 1987, 106 persons were detained under the ISA for allegedly being involved in activities "prejudicial to the security of Malaysia." These included Lim Kit Siang, Leader of the Opposition, and Dr Chandra Muzaffar, a prominent human rights activist (both detained for two years), as well as university lecturers, environmentalists, businessmen and some members of UMNO. All had been critical of the government.


        In 1990, three persons were detained for taking part in a public demonstration that opposed the setting up of  a highway toll in Cheras.


        In 1991, Dr Jeffrey Kitingan, brother of the then Chief Minister of Sabah, was detained for two years "for trying to champion the secession of Sabah from the Federation of Malaysia".


Why the ISA should be repealed

There are good reasons why an unjust law like the ISA should be abolished:


        The communist insurgency ended 40 years ago and there has been no real subversion or security threat to the country since the racial riots in 1969. Organised violence or acts of terrorism are not major problems in Malaysia. There is already sufficient legislation to deal with every conceivable eventuality relating to public order and security.


        There are no judicial or legislative safeguards against the abuse of discretionary power under preventive detention laws, nor statutory provisions that require periodic reports on preventive detention to be tabled before Parliament. All actions taken under the ISA are only subject to the discretion of the Minister of Home Affairs, whose decisions are based on the recommendations of the police. For example, the ISA has been invoked against those alleged to have spread rumours, forged passports, cloned hand-phones, or breached copyright laws.


        Although Malaysia has not signed and ratified all the conventions of the United Nations on human rights, as a member of the UN, it has an inherent obligation to respect and observe them.


Amnesty International, the International Commission of Jurists, international human rights lawyers and local groups have all argued and advocated changes in the legislation and administrative practices related to detention without trial. Some have accepted the need for a government to effect limited and restricted preventive detention in special circumstances that call for state action against individuals, who are de facto security threats. One of the salient recommendations was to provide for adequate judicial review of all administrative acts of the executive or civil service. There is as yet no sign that the Malaysian government is receptive to such recommendations.


The national security of any country is a sensitive area, where the secrecy demanded by the executive in safeguarding security is understandable to a certain extent. However, the ISA should not be used as an obstacle to preclude the courts from intervening in cases when an individual's freedom is being violated. The courts have a clear duty to uphold the rule of law and to be vigilant in ensuring personal liberty, a duty that must not be obstructed by legislative and administrative powers.


However much the executive may assert the necessity for it to be the 'sole judge' of the requirements of national security, it is essential for the courts to be satisfied that executive power has been exercised for the genuine purposes of national security.


In the absence of judicial review and an independent judiciary, the ISA can become an instrument of the executive. This raises the danger that, at some future date, the executive could replace the rule of law completely, leading to a severely authoritarian government or even a dictatorship.


It cannot be denied that the incarceration of persons without trial sets the stage for physical and mental illness which cannot be ignored or glossed over by the medical profession.


31st January 2002

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