The Book of Prof Shad.docx

100 the act enhances the legitimacy of the government

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The Act enhances the legitimacy of the Government. The “sunset clause” in s. 4(11) putting a time limit on some provisions enhances the powers of parliament to scrutinize the exercise of powers by the executive. From the point of view of leadership, the Act marked the coming of age of a new national leader who is prepared to stand up to the reactionaries in his party, in the civil service and in the security forces. Without doubt great courage was needed to break with the past and to refute the doomsday prediction that if the ISA is repealed, chaos will be inevitable. The PM had to confront deeply ingrained presumptions, prejudices and personal interests. An American quote comes to mind: “Leaders of substance do not follow opinion polls. They mould opinion, not with guns, or dollars or position but with the power of their souls”. From a democratic point of view, this Act affirmed that in Malaysia, the voice of dedicated individuals and NGOs can make a difference. Change – slow though it is - is possible without revolutionary upheavels. We do not need an “Arab Spring”. The “fear factor” for social activists in this country has now greatly diminished. Their courage can now match the establishment’s power. The psychological impact of this Act on citizen-government relationship will indeed be significant. A bazooka in the hands of the police has now been taken away. The easy route that the police used to take - to arrest first and investigate afterwards – has now become difficult. Comparison between police power of preventive detention under ISA & SOSMA ISA: Under section 73 ISA, preventive detention by the police was allowed up to 60 days. SOSMA: Under section 4 detention is allowed initially for 24 hours and then extendable to maximum of 28 days. In lieu of detention up to 28 days the police may apply to the court to fit an electronic monitoring device on the suspect for a period not exceeding 28 days after arrest. Ministerial power of preventive detention ISA : under section 8 Minister could detain for 2 years and renew the detention again and again for 2 years each. There was no maximum period of detention. Minister could act independently of the police and did not have to wait for a recommendation by the police under section 73. SOSMA : Minister’s power to detain has been totally abolished. The Minister is now not involved in the detention at all. Matter is left to the police. Role of the judiciary ISA: Under the ISA courts had acquired the power to review the adequacy of the grounds of police discretion but no power to review the subjective discretion of the Minister except on procedural grounds. The police and the Minister were accusers, prosecutors and adjudicators all combined in one. 101
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SOSMA: Courts have no role in the first 28 days of detention. But when the person is charged and brought to trial, judicial procedures will apply fully . The courts will determine the guilt or innocence of the accused.
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