The Book of Prof Shad.docx

Political detentions isa the ministers subjective

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Political detentions ISA: The Minister’s subjective discretion was near-absolute and it was quite common to detain political opponents. It is alleged that nearly 10,000 political detentions had taken place over the years . During Operation Lallang, 106 public figures were detained. SOSMA: Under s 4(3) no person shall be arrested and detained solely for his political belief or political activity. Advisory Board ISA: Within 90 days of an arrestee making a representation to the Board, or such time as the YDPA allowed, the Board had to send its recommendations to the YDPA. The Board had no power to adjudicate, only to recommend. Its advice was not binding on the Minister. SOSMA: The whole process has been judicialised. The role of the Advisory Board has been taken up by the High Court after the 28 days of police investigation. The decision of the court is binding on the police. Withholding of evidence ISA: On grounds of national security etc. the Minister could withhold evidence from the Advisory Board . SOSMA: The decision on withholding evidence on the government’s request is in the hands of the court. If evidence is withheld, a summary of the evidence must be supplied to the accused. Lawyers ISA: The law was silent. Barring two or three cases, it was presumed that Art 5(3) is not applicable to ISA detentions. If lawyers were allowed, it was only after long delays SOSMA: Now lawyers must be allowed after a maximum period of 48 hours after arrest. Family informed ISA: There was no provision to keep the family informed. SOSAMA: Under s 5(1)(a) the next of kin must be immediately notified of the arrest and detention. Sunset clause ISA : Had no such clause SOSMA: The 28-day period of detention for investigation must be reviewed by parliament every five years. 102
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Appeal ISA: There was no appeal from the advice of the Advisory Board or the decision of the Minister. SOSMA: Under SOSMA as the trial is in the High Court, appeals against conviction will lie to the Court of Appeal and the Federal Court. Power to intercept communication, search & seize goods without warrant ISA: Wide powers existed. SOSMA: Similar powers exist. SOME CRITICISMS OF SOSMA Nature of the law : The law is not an ordinary piece of legislation. It is enacted under Art. 149’s power to combat subversion. In many places it specifically overrides the safeguards of Articles 5, 9 & 10 e.g. in s. 5(3) on the right to see a lawyer; s. 6(1) on the right to intercept communication; s. 7(9) on electronic monitoring devices; s. 14(1) on evidence of witnesses given in a special manner; s. 30(1) detention pending exhaustion of legal process. Scope of the law : Some of us were hoping that the law would be specific to terrorism. Actually its scope is just as wide as the ISA. Not just terrorism, sabotage and esponiage are covered but also public order and public safety offences are covered. Some of these should be covered by ordinary law.
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