  Oxford University Commonwealth Law Journal 237

IN THE COURTS

A HALF-WAY CHALLENGE TO MALAYSIA’S INTERNAL

SECURITY ACT
(MOHAMAD EZAM BIN MOHD NOR v KETUA POLIS NEGARA)

JOHN D CIORCIARI*

On 18 June 1948, to counter a crisis of criminality and a rising Communist insur-

gency, British colonial authorities declared a temporary State of Emergency in
Malaya. A series of special regulations granted authorities special powers to search
and arrest suspects without a warrant, detain suspects without a trial for up to two
years, restrict movement of people and vehicles, and otherwise frustrate subversive
activities.1 The regulations were intended to be transient tools for managing a
severe Communist threat. However, many of their provisions became permanent
features of law in 1960, when the newly independent State of Malaysia replaced
the Emergency Regulations with the Internal Security Act (‘ISA’).2 The ISA
concretized ‘emergency’ police powers in Malaysia. Throughout the Cold War,
Malaysian leaders justified the ISA as a necessary measure to combat Communist
subversion. Since the attacks of 11 September 2001 and the Bali bombings of
October 2002, the menace of Islamic terrorism has emerged as the ostensible
raison d’être for the draconian law. However, many domestic and international
critics view the statute primarily as a tool for political repression.
Among other things, the ISA enables authorities to arrest any person deemed a
threat to national security without a warrant and to detain him or her for up to 60
days without a trial.3 No evidence is required for the arrest, no charges need be

* AB, JD (Harvard), MPhil (Oxon); Wai Seng Senior Research Scholar, Asian Studies Centre, St
Antony’s College (Oxford); Visiting Research Fellow, Institute of Defence and Strategic Studies
(Singapore).
1
The emergency was first declared under the British Military Administration (Essential Regulation)
Proclamation and was replaced by legislation passed on 5 July 1948. For general discussions of the
emergency period and regulations, see generally R Stubbs Hearts and Minds in Guerilla Warfare: The
Malayan Emergency 1948–1960 (OUP Singapore 1989); K Ramakrishna Emergency Propaganda:
The Winning of Malayan Hearts and Minds 1948–1958 (Curzon Press Richmond Virginia 2002) chs 3–6.
2 For the most complete recent discussion of the ISA in the literature, see N Fritz and M Flaherty

‘Unjust Order: Malaysia’s Internal Security Act’ (2003) 26 Fordham Intl LJ 1345. The report is the
product of a year-long project undertaken by the Joseph R Crowley Program in International
Human Rights at Fordham Law School: ibid 1346–49.
3 ISA s 73(1)(b). An individual may be arrested if he or she ‘has acted or is about to act or is likely to

act in any manner prejudicial to the security of Malaya or any part thereof or to maintenance of
essential services therein or to the economic life thereof ’.
238 A Half-Way Challenge to Malaysia’s Internal Security Act     

filed, and until quite recently, the police have had considerable discretion in grant-
ing the detainee access to legal counsel.4 After that 60-day ‘investigation period’,
section 8 empowers the Home Minister to issue a two-year order of detention
without any presentation of evidence or judicial review.5 Measures for redress are
very limited. An ISA detainee may submit a habeas corpus application to a court
with respect to the initial investigation period. In its original form, the Act also
permitted judicial review of the Home Minister’s decision, but an August 1989
amendment prevented courts from challenging the two-year detention orders,
which are renewable ad infinitum.6
Despite widespread criticism of the law, the Malaysian judiciary has seldom
called the ISA into question. In fact, a series of legislative amendments and Federal
Court decisions between 1975 and 1988 enhanced police power under the ISA and
diminished the role of judicial review. The September 2002 case of Mohamad Ezam
bin Mohd Nor v Ketua Polis Negara7 provided the Federal Court in Malaysia with a high-
profile opportunity to review the ISA.8 Five prominent political activists argued that
their arrest and detention under the ISA had been unlawful. Their claims went to
the heart of the statute and related to broader principles of constitutional law,
judicial activism, and civil rights in Malaysia. As discussed below, the Mohamad Ezam
decision did issue a noteworthy challenge to the ISA and the police authorities, but
the holding ultimately underscored the relative passivity of the Malaysian judiciary
in checking executive behavior, particularly in the security sphere.

A B ACKGROUND TO THE C ASE

The Mohamad Ezam case emerged from the political tensions that followed the
Asian financial crisis of 1997. As the Malaysian economy tumbled, a struggle
emerged between Prime Minister Mahathir Mohamad and his deputy, Anwar
Ibrahim. After Mahathir dismissed Anwar from his posts as Deputy Prime
Minister and Finance Minister and suspended him from the ruling United Malays
National Organization (UMNO), Anwar launched an opposition Reformasii move-
ment. A few weeks later, Anwar and a number of his followers were arrested under

4 ISA ss 8, 16, 73; Internal Security Act (Amendment) Act 1989, s 8B. See Fritz and Flaherty (n 2)
1353–55.
5
ISA ss 8(1)–(2).
6
Section 8B(1) of the 1989 Amendment to the ISA now provides that ‘[t]here shall be no judicial
review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done
or decision made by the Yang di-Pertuan Agong [King] or the [Home] Minister in the exercise of
their discretionary power in accordance with the Act, save in regard to any question on compliance
with any procedural requirement in this Act governing such act or decision’.
7 [2002] 4 Malayan LJ 449 (Fed Ct) (Mohamad Ezam Federal Court Appeal).
8 The Federal Court is the highest court of appeal in Malaysia. Magistrates Courts and Sessions
Courts possess jurisdiction to deal with many cases in the first instance, but the High Court also has
jurisdiction over all civil and criminal matters. For an overview of the Malaysian judicial system, see
RH Hickling Malaysian Law (Professional Law Books Kuala Lumpur 1987).
  Oxford University Commonwealth Law Journal 239

the ISA. His arrest and the apparent abuse he suffered in detention sparked wide-
spread protests and propelled the Reformasii movement. In April 1999, Anwar was
convicted for abuse of power and sentenced to six years in prison,9 shortly after his
wife announced the formation of the Parti Keadilan Nasional (Keadilan). Keadilan
formed a coalition and quickly emerged as the chief opposition to the governing
UMNO-led coalition.10
Early in 2001, Keadilan won the by-election in the key western city of Lunas
and appeared to be making significant gains. However, on 10 and 11 April, the
police arrested and detained seven prominent young Keadilan leaders and associ-
ates. Inspector-General of Police Tan Sri Norian Mai announced that the
detainees were part of a ‘secret cell’ that planned to stage a massive violent rally
on ‘Black 14’, the second anniversary of Anwar’s conviction. Norian further
asserted that the detainees had planned to execute a coup d’état using bombs and
rocket-propelled grenades.11 The arrestees denied that they posed threats to
national security. Five of them filed an application for a writ of habeas corpus,
claiming that their detention was unlawful and that they had been denied
their rightful access to counsel. The applicants included Reformasii activist
Hishammudin Rais, Free Anwar Campaign director Raja Petra bin Raja
Kamaruddin, and three Keadilan leaders—Mohamad Ezam bin Mohd Nor,
Chua Tian Chang, and Saari bin Sungib.12

1 The High Court Decision

On April 25, the High Court of Kuala Lumpur denied their habeas corpus appli-
cation in a ruling strongly supportive of the ISA. Augustine Paul J, who had
convicted Anwar on corruption charges in April 1999, began by holding that pre-
ventive detention was lawful and that it was ‘not new and unique nor particular to
Malaysia’.13 The legal basis for preventive arrest and detention can be found in
Article 149 of Malaysia’s Federal Constitution.14 Under certain circumstances,
that article permits derogation from fundamental constitutional rights including
the right to liberty of the person, rights to property, freedom of speech, assembly,
and association, and freedom of movement.15 Preventive detention is lawful when

9
Public Prosecutor v Dato’ Seri Anwar bin Ibrahim (No 3) [1999] 2 Malayan LJ 1 (HC).
10
For a review of relevant events leading up to the Mohamad Ezam case, see Fritz and Flaherty (n 2)
1355–62.
11
T Emanuel ‘Mass Violence Planned’ New Straits Times (Kuala Lumpur Malaysia 12 April 2001) 1.
12 ‘Five Held under ISA File Writ for their Release’ New Straits Times (Kuala Lumpur Malaysia 13 April
2001) 4.
13 Mohamad Ezam Mohd Nor v Inspector General of Police [2001] 2 Malayan LJ 481 (HC) 501 (Mohamad
Ezam High Court Case). The applicants sought to disqualify Paul J on the ground of impartiality based
on his conviction of Anwar, but he dismissed that charge as ‘frivolous, vexatious, and an abuse of
the process of the court’: ibid.
14 The preamble to the ISA asserts that the law is enacted ‘pursuant to Article 149 of the Constitution’.
15 Malaysian Constitution arts 5, 9, 10, 13.
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‘action has been taken [or] threatened by a substantial number of persons’ with an
intent to prejudice ‘the security of Malaysia’. Action that can trigger Article 149
includes planning or participating in organized violence against people and prop-
erty or conspiring or attempting to alter the government by illegal means.16
The decision also stated that judicial review generally would be inappropriate
in matters of national security.17 Paul J followed the 1988 decision in Theresa Lim
Chin Chin v Inspector-General of Police,18 in which the Federal Court held that the
executive branch was the appropriate judge in the ‘matter of preventive detentions
relating to the security of Malaysia’.19 He concluded further that tests for the valid-
ity of detention orders under both sections 8(1) and 73(1) were subjective and
beyond the courts’ review:
The text20 to determine the validity of a detention order made under s 8(1) of the ISA is
subjective. ... As s 73(1) and s 8(1) are so inextricably connected, the subjective test should
be applied to both. ... The result is that the court cannot require a police officer to prove
to the court the sufficiency of the reason for his belief under s 73(1) of the ISA.21

To explain his rationale, Paul J quoted the well-known 1916 English case, The
Zamora: ‘Those who are most responsible for the national security must be the sole
judges of what national security requires’.22 The decision thus gave the police very
thick insulation from judicial review.
In fact, the High Court held that the only grounds for challenging an ISA deten-
tion would be to assert that the arrest and detention were made mala fide.23
However, Paul J concluded that the police and Home Minister were not required
to disclose the facts upon which their arrests and detentions had been made.24 He
based his conclusion on Article 151(1)(a) of the Malaysian Constitution, which

16
ISA preamble; Malaysian Constitution art 149(1)(a), (d), (f). The authority conveyed by Article 149
is not carte blanche. Article 151(1)(a) restricts the practice of preventive detention by requiring author-
ities, as soon as possible, to ‘inform [the detainee] of the grounds of his detention’ and afford him
‘the opportunity of making representations against the order’. Representations are to be made to an
advisory board composed of qualified judges, who are to issue timely recommendations to the Yang
di-Pertuan Agong (King) regarding the propriety of the detention. Malaysian Constitution art
151(1)–(2). However, this issue was not raised in court.
17
Mohamad Ezam High Court Case (n 13) 501 (citing Council of Civil Service Unions v Minister for the Civil
Service [1985] AC 374 (HL); Karam Singh v Menteri Hal Ehwal Dalam Negeri [1969] 2 Malayan LJ 129
(Fed Ct)).
18
[1988] 1 Malayan LJ 293 (Fed Ct).
19 Mohamad Ezam High Court Case (n 13) 501.
20 Here the court obviously meant ‘test’.
21 Mohamad Ezam High Court Case (n 13) 501 (citing Inspector-General of Police v Tan Sri Raja Khalid bin Raja
Harun [1988] 1 Malayan LJ 182 (SC); Karam Singh (n 17)).
22 Mohamad Ezam High Court Case (n 13) 501–2 (citing The Zamora [1916] 2 AC 77 (PC) 107).
23 Actions mala fide need not be malicious. They merely need to be undertaken for a ‘collateral’ or
‘ulterior’ purpose, meaning one other than what the legislature had in mind in passing the ISA.
Athappen a/l Arumugam v Menteri Hal Ehwal Dalam Negeri [1984] 1 Malayan LJ 67 (HC) 157; Karpal
Singh s/o Ram Singh v Menteri Hal Ehwal Dalam Negeri [1988] 1 Malayan LJ 468 (HC) 473.
24 Mohamad Ezam High Court Case (n 13) 503.
  Oxford University Commonwealth Law Journal 241

requires authorities to disclose ‘the allegations of fact on which the [detention]

order is based’, unless the authorities believe that disclosure would be ‘against the
national interest’.25 Paul J acknowledged that ‘in cases of this nature, [bad faith] is
not always easy to prove’. He found insufficient evidence to support the applicants’
claim with respect to the 10–11 April arrests.26
Finally, the High Court held that a detainee could be denied access to legal
counsel at the discretion of the police. This is in tension with Article 5(3) of the
Constitution, which provides that ‘where a person is arrested he shall be informed
as soon as may be of the grounds of his arrest and shall be allowed to consult and
be defended by a legal practitioner of his choice’.27 The ISA does not contain any
contrary provision and thus remains subject to Article 5(3).28 However, two key
court decisions chipped away at the protections granted to arrestees by holding
that Article 5(3) could be restricted when necessary to prevent undue interference
in an investigation and advance the interests of justice. In the 1975 case of Ooi Ah
Phua v Officer in Charge of Criminal Investigation, Kedah/Perlis,29 the Federal Court held
that the right of a detainee to counsel had to be balanced with the duty of the
police to protect the public. Such access could thus be delayed and subject to ‘legit-
imate restrictions’.30 In Theresa Lim, the Federal Court went further by allowing the
police to deny access to counsel whenever such right would interfere with an
investigation: ‘To show breach of Article 5(3), an applicant has to show that the
police has deliberately and with bad faith obstructed a detainee from exercising his
right under the Article’.31
The language of the decision was striking. Previous decisions had treated the
application of Article 5(3) as the norm from which derogation would occasionally
be possible. In Theresa Lim, the Federal Court suggested instead that the interest in
an effective investigation trumped the rights of defendants to counsel and inform-
ation. By establishing a standard of ‘deliberate and bad faith’ behavior and plac-
ing the burden of proof on detainees, the court granted authorities extensive
discretion. Following that decision, Paul J wrote:
The matter [of access to legal counsel] must therefore be left to the good judgment of the
detaining authority. A detainee under the ISA can therefore have legal access only when
it does not interfere with police investigation. Even if this conflicts with art 5(3) it is
validated by Art 149 of the Constitution.32

25 Malaysian Constitution arts 151(1)(a), 151(3).

26 Mohamad Ezam High Court Case (n 13) 502 (citing Karam Singh (n 17) 157).
27 Malaysian Constitution art 5(3).
28 Fritz and Flaherty (n 2) 1394.
29 [1975] 2 Malayan LJ 198 (Fed Ct).
30 Ooi Ah Phua (n 29) 200 (quoting Sundar Singh v Emperor AIR 1930 Lahore 945, 947).
31 Theresa Lim (n 18) 297–98.
32
Mohamad Ezam High Court Case (n 13) 514.
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He reasoned that ‘justice does not mean only for the accused; it also means the
interests of the state’.33
The five detainees quickly appealed the adverse High Court decision. The
appellants asserted that the police had violated Article 5(3) of the Constitution by
denying them access to counsel during the 60-day investigation period. They also
argued that the original detention was mala fide, motivated by ‘ulterior’ purposes,
and unsupported by negligible evidence that the detainees were threats to national
security. On 2 June, days before their scheduled appeal, Malaysian authorities
released Raja Petra, while Home Minister Ahmad Abdullah Badawi issued two-
year orders of detention for the remaining four men.34 The Inspector-General of
Police immediately filed for dismissal of the case on the grounds that Raja Petra
was no longer in custody and that the other four men had been turned over to the
Home Minister. The Federal Court unanimously rejected the motion and
declared that legal issues were ‘still alive’.35

2 The Watershed Federal Court Holding

After some delay, the Mohamad Ezam appeal came before a panel of four Federal
Court judges on 6 September 2002. In several respects, the court’s decision on the
case represented a landmark in Malaysian law. It reversed course from the Theresa
Lim decision and expanded the protection afforded to detainees under the ISA.
Writing for a unanimous panel, Mohamed Dzaiddin CJ asserted that the right to
counsel is to be read into the ISA and other statutes.36 The court held that the right
to counsel can be subject to reasonable restrictions but not arbitrarily denied and
pointed to a line of decisions, including Ooi Ah Phua, to support that conclusion.37
‘Allowing access only after the expiry of their detentions is conduct unreasonable
and a clear violation of Article 5(3)’, Mohamed Dzaiddin CJ reasoned. Although
some delay would be acceptable to facilitate police investigation, ‘to stretch that

33
Mohamad Ezam High Court Case (n 13) 514 (citing Hashim bin Saud v Yahaya bin Hashim [1977] 2
Malayan LJ 116 (Fed Ct)). Five weeks later, the High Court in Shah Alam handed down a con-
trasting decision, ordering the release of two other Keadilan detainees, Abdul Ghani bin Haroon
and Gobalakrishnan Nagappan. In a rare grant of habeas corpus, Mohamad Hishamuddin
Mohamad Yunus J found their arrest and detention to have been in bad faith. He cited the absence
of evidence on the grounds for arrest and the unreasonable denial of counsel and family visits to the
two men during detention: Abdul Ghani Haroon v Ketua Polis Negara Application (No 4) [2001] 6 Malayan
LJ 198 (HC).
34
J Joheng ‘Four Arrested Under ISA Sent to Kamunting Detention Camp’ New Straits Times (Kuala
Lumpur Malaysia 4 June 2001) 1; ‘Decision Made on Grounds of National Security’ New Straits
Times (Kuala Lumpur Malaysia 5 June 2001) 2.
35 ‘IGP’s Objections Dismissed by Court’ New Straits Times (Kuala Lumpur Malaysia 7 June 2001) 6.
36 Mohamad Ezam Federal Court Appeal (n 7) 510 (citing Assa Singh v Menteri Besar, Johore [1969] 2 Malayan
LJ 30 (Fed Ct) 41).
37 Mohamad Ezam Federal Court Appeal (n 7) 510–15 (citing Ramli bin Salleh v Inspector Yahya bin Hashim
[1973] 1 Malayan LJ 54 (HC); Ooi Ah Phua (n 29) 200; Lee Mau Seng v Minister for Home Affairs, Singapore
[1971] 2 Malayan LJ 137 (Singapore HC)).
  Oxford University Commonwealth Law Journal 243

denial throughout the duration of the 60 day period makes a mockery of Article
5(3)’. There was ‘no justification’ for the argument that the ISA granted the police
the right during the whole period ‘to refuse access under the guise that the invest-
igations were ongoing’.38
In an extraordinary and unusual challenge to the police, the four-judge panel also
ruled that the initial 60-day order of detention was made mala fide. Mohamed
Dzaiddin CJ wrote that the responding affidavits of the police constituted ‘bare
denials’39 that were ‘grossly inadequate’40 to rebut the detainees’ claims. In addition:
[D]espite the press statement of the respondent that the appellants were detained
because they were a threat to national security, it is surprising to note from the appel-
lants’ affidavits that they were not interrogated on the militant actions and neither were
they questioned about getting explosives materials and weapons. Clearly ... the questions
that were asked were more on the appellants’ political activities and for intelligence gath-
ering ...41

Consequently, the Chief Justice concluded that ‘there is much force in the
contention of learned counsel for the appellants that the detentions were for an
ulterior purpose and unconnected with national security’.42
The court rejected the notion that the reasons of the police for detaining a sus-
pect under section 73(1) of the ISA were immune to judicial review. Writing for
the panel, Steve Shim CJ (Sabah and Sarawak) asserted that:
The executive, by virtue of its responsibilities, has to be the sole judge of what the
national security requires. However, although a court will not question the executive’s
decision as to what national security requires, the court will nevertheless examine
whether the executive’s decision is in fact based on national security considerations.43

The burden was on the police to demonstrate that they had had an objective
‘reason to believe’ that the appellants were threats to national security, as required
in section 73(1).44 Steve Shim CJ (Sabah and Sarawak) overturned the High
Court’s ruling that the police had no duty to disclose such information. He noted
that section 16 of the ISA released only the Home Minister from that duty and
asserted that Article 151(3) of the Malaysian Constitution justified police non-
disclosure of information to detainees, not to courts.45 In the case at hand, the
Federal Court concluded that the police made no such evidentiary showing.
Consequently, the original detention was illegal and void.

38 Mohamad Ezam Federal Court Appeal (n 7) 515–16.

39
Mohamad Ezam Federal Court Appeal (n 7) 470.
40
ibid.
41
ibid.
42
ibid.
43
Mohamad Ezam Federal Court Appeal (n 7) 480. For a similar holding, see Chng Suan Tze v Minister of Home
Affairs [1989] 1 Malayan LJ 69 (Singapore CA).
44
ISA s 73(1).
45
Mohamad Ezam Federal Court Appeal (n 7) 475–79.
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B L IMITS OF THE M OHAMAD E ZAM D ECISION

By confronting executive authority and asserting judicial power in security affairs,

the Mohamad Ezam decision marked a significant diversion from pre-existing judi-
cial trends in Malaysia. However, the Federal Court’s ruling had a major catch
that undermined much of its practical legal effect. Although the fact that the court
invalidated the 60-day detention was striking, all four judges agreed that the
Home Minister’s detention order pursuant to section 8 of the ISA was a separate
legal matter and was not affected by the illegality of the initial arrest. Steve Shim
CJ (Sabah and Sarawak) wrote that sections 73(1) and 8(1) were not ‘inextricably
connected’, because that linkage ‘would have the effect of inhibiting or restricting
the unfettered discretion of the minister’. The minister need not rely on police
investigations to make his decision, and he may weigh other ‘public considera-
tions’ in his determination of what national security requires.46 Under section 8B
of the ISA, the Home Minister’s detention order remained subjective and beyond
judicial review.
Consequently, despite winning their appeal, the appellants remained in deten-
tion with no right to a trial.47 The court’s inability or unwillingness to challenge
the Home Minister’s actions rendered its invalidation of the original arrest and
detention partially moot. The Mohamad Ezam decision placed limits on police con-
duct under the ISA, but it did not deal with the constitutionality of section 8B. The
Home Minister can still issue renewable two-year detention orders on the basis of
illicit arrests. If that order is signed before a habeas corpus application is approved,
detainees have no legal recourse. Mohamad Ezam thus did much to expose the
abuse of the ISA, but it represented only a modest practical curtailment of the
power of Malaysia’s executive branch to arrest and detain individuals on unspec-
ified grounds of national security.48
It was also noteworthy that the Federal Court based its decision in Mohamad
Ezam entirely on national law, concluding that international documents such as
the Universal Declaration of Human Rights (UDHR) and International Covenant
of Civil and Political Rights were not binding on Malaysian courts. Those
documents provide that an individual shall not be arbitrarily arrested and
detained and that he shall be informed promptly of the charges against him.49

46
Mohamad Ezam Federal Court Appeal (n 7) 473–74.
47 Three of the detainees—Saari bin Sungab, Chua Tian Chang, and Hishamuddin Rais—were
released in early June 2003, but their release depended on executive discretion, not legal entitle-
ment. S Yoong ‘Malaysian Government Releases Three Imprisoned Opposition Activists’ AP
Newswire (2 June 2003).
48 Fritz and Flaherty (n 2) 1387.
49 Universal Declaration of Human Rights (adopted 10 December 1948) UNGA Res 217 A(III) art 2;
International Covenant on Civil and Political Rights (adopted 16 December 1966, entered into
force 23 March 1976) 999 UNTS 171 art 9(1).
  Oxford University Commonwealth Law Journal 245

Writing for the court, Siti Norma Yaakob J wrote that section 4(4) of the Human
Rights Commission of Malaysia Act allows Malaysian courts to look to the UDHR
and other UN documents for guidance on human rights, provided that such
documents do not conflict with the constitution.50 However, relying on the 1981
case of Merdeka University Berhad v Government of Malaysia,51 he asserted that judges
are under no obligation to do so.52 The Federal Court also did not draw on
customary international law, despite a relative international consensus that
customary law prohibits arbitrary arrest and detention and mandates that suspects
be informed of the charges against them.53 The court’s reluctance to embrace
international norms reflects judicial deference to the Malaysian Parliament and
executive. Without recourse to international principles, challenging some of the
country’s more onerous laws will be difficult.

C S IGNIFICANCE OF THE C ASE

Shortly after the case, then Prime Minister Datuk Seri Dr Mahathir Mohamad
cited the decision as evidence that the Malaysian judiciary was independent and
free from political interference. However, he reaffirmed his support for the ISA by
arguing that absolute freedom would lead to anarchy. He asserted that Home
Minister Abdullah would continue to use the ISA, and at a speech delivered on
9 September, he argued:
The Western concept of rights differs from that of Asian countries. While the West places
rights of the individuals before the interest of the group or society, Asian culture places
society above self. The Internal Security Act, which has been vehemently condemned by
the West, is necessary to safeguard the nation’s security and hence provide protection for
the vast majority.54

Throughout Mahathir’s long stay in power, he and others have advanced this
‘Asian values’ argument to support the ISA and other legislation that grants wide
powers to the governing executive authorities.55 Proponents of the ISA have
also argued that it is necessary to safeguard national stability and economic

50
Human Rights Commission of Malaysia Act 1999 s 4(4).
51
[1981] 2 Malayan LJ 356 (HC).
52
Mohamad Ezam Federal Court Appeal (n 7) 513–14.
53
Fritz and Flaherty (n 2) 1380–81. For statements of this customary principle, see Restatement of the
Law (Third) Foreign Relations Law of the United States s 701 (American Law Institute 1987); African
Charter on Human and Peoples’ Rights (adopted 27 June 1981, entered into force 21 October
1986) (1982) 21 ILM 58 art 6; American Convention on Human Rights (adopted 22 November
1969, entered into force 18 July 1978) 1144 UNTS 123 art 7.
54
‘PM: Federal Court Ruling Against Police Shows Independence of Judiciary’ New Straits Times
(Kuala Lumpur Malaysia 10 September 2002) 4.
55
For a general overview of the ‘Asian values’ debate, see A Whiting ‘Situating Suhakam: Human
Rights Debates and Malaysia’s National Human Rights Commission’ (2003) 39 Stanford J Intl L
59, 61–66.
246 A Half-Way Challenge to Malaysia’s Internal Security Act     

development. In response to the Mohamad Ezam decision, the Malaysian govern-

ment has threatened to take that principle even further by amending the ISA to
exempt the police from defending their detentions in court.56
Government concerns increased in November, when the Kuala Lumpur High
Court ordered the release of a suspected Jemaah Islamiyah member for lack of
evidence against him.57 Datuk Haji Suriyadi bin Halim Omar J noted that the law
of habeas corpus had seen a ‘radical shift’ after the Mohamad Ezam appeal and fol-
lowed that decision in his verdict.58 In response, government plans to amend the
ISA accelerated.59 That development would make habeas corpus applications,
which are now extremely difficult, nearly impossible.
Thus far, the proposed amendment has not materialized. It continues to face
strident opposition from human rights groups, Keadilan, and Parti Islam
SeMalaysia, the country’s largest Islamist political party. However, the govern-
ment has continued to use the ISA aggressively, using the war on terror as its
primary justification.60 Referring to the Act, Mahathir said:
If someone commits an act that violates the human rights of the majority, then he has
done something that shows he has no respect for human rights ... and if he has no respect
for human rights, there is no need for us to respect his human rights.61

The idea that human rights should be recognized selectively endangers civil
liberties in Malaysia, but it is by no means a problem confined to that Southeast
Asian country. Singapore possesses a similar statute, although many fewer abuses
have been alleged. Indonesia passed an anti-terror law with some comparable
provisions after the October 2002 Bali bombing, and Australia has recently intro-
duced a broadly similar package of legislation.62 Thai Prime Minister Thaksin
Shinawatra also pushed through tough emergency anti-terror decrees in August
shortly after the bombing of the JW Marriott Hotel in Jakarta.63 In the United
States, the USA Patriot Act of 2001 has come under fire, and American forces
continue to hold numerous detainees without trial at the American base in

56 B Pereira ‘Security Act Tightened to Keep State’s Secrets’ Straits Times (Singapore 5 October 2002).
57 Nasharuddin bin Nasir v Kerajaan Malaysia (No. 2) [2002] 4 Malayan LJ 617 (HC).
58 ibid 621.
59 ‘Malaysia to Tighten Security Laws After Court Frees Suspect’ Agence France Presse (9 November
2002).
60 Z Mustafa ‘Suhakam Concerned Over Use of ISA’ New Straits Times (Kuala Lumpur Malaysia 21
December 2002) 8.
61
‘Malaysian Leader Rejects Demands to Loosen Tough Internal Security Laws’ AP Newswire (21
December 2002).
62
Anti-Terrorism Act 2003 (Indonesia); Criminal Code Amendment (Terrorist Organizations) Act
2002 (Cth) (Australia); Security Legislation Amendment (Terrorism) Act 2002 (Cth) (Australia). For
other examples of recent anti-terror statutes, see Prevention of Terrorism Act 2002 (India); Anti-
Terrorism Act RSC 2001 c 41 (Canada).
63
Anti-Terror Decrees (Amendments to the Thai Penal Code) enacted 12 August 2003.
  Oxford University Commonwealth Law Journal 247

Guantanamo Bay.64 In fact, Mahathir has explicitly pointed to the American

conduct at Guantanamo to justify the ISA, noting that ‘events in the United States
have shown that there are instances where certain special powers need to be used
in order to protect the public for the general good’.65 States inside and outside of
Southeast Asia have stopped short of enacting provisions akin to the ISA.
Nevertheless, legislative and executive measures taken to combat terrorism pose
potential threats to the protection of human rights in jurisdictions throughout the
world.
The Mohamad Ezam decision was an important and laudable step toward the
enhancement of human rights and executive accountability in Malaysia.
However, it stopped well short of challenging the ultimate authority of the Home
Minister. It also revealed a continued reluctance by the Federal Court to import
international norms into Malaysian law and to scrutinize legislation in the area of
national security. Mahathir’s recent retirement and the appointment of former
Home Minister Abdullah as Prime Minister gives Malaysia an excellent and
appropriate opportunity to review and amend the law. However, it appears
unlikely that Parliament will repeal significant portions of the Act in the immedi-
ate future. Trends presage instead to a hardening of the statute. Without greater
judicial willingness or ability to subject acts of Parliament to tough constitutional
review, and as long as courts remain reluctant to import international law on the
matter, the ISA is apt to remain insufficiently balanced as an instrument of the
governing party’s power in Malaysia.

64
Uniting and Strengthening America by Providing Appropriate Tools Required to Intercept and
Obstruct Terrorism (USA Patriot Act) Act of 2001 Pub L No 107–56 (26 October 2001). Much has
already been written about the legal and human rights implications of the USA Patriot Act:
AA Bradley ‘Extremism in the Defense of Liberty? The Foreign Intelligence Surveillance Act and
the Significance of the USA PATRIOT Act’ (2002) 77 Tulane L Rev 2; JW Whitehead and
SH Aden ‘Forfeiting “Enduring Freedom” for “Homeland Security”: a Constitutional Analysis of
the USA Patriot Act and the Justice Department’s Anti-Terrorism Initiatives’ (2002) 51 American
U L Rev 6; JC Evans ‘Hijacking Civil Liberties: The USA PATRIOT Act of 2001’ (2002) 33 Loyola
U of Chicago LJ 4.
65 J Chao ‘Malaysia’s War on Trerror Worries Human Rights Advocates’ Cox News Service (Atlanta
Georgia USA 15 November 2002).