The Malaysia Option
We are several months away from the Obama Administration making a decision on whether to put into motion a practice of preventive detention, so that the government can hold terror suspects captured around the world without charges and despite a paucity of evidence. Despite federal judges finding that the government lacks evidence to imprison suspects in 28 out of 33 habeas corpus hearings on Guantanamo detainees so far, the White House, at least in early reports, wants to set up a system to keep those who they cannot charge but do not want to release. The courts have invalidated the 2006 provision in the Military Commissions Act that would have eliminated the right of habeas corpus for all Guantanamo detainees and so-called "enemy combatants," but the Administration is pondering a system to effectively deny that right anyway and detain suspects at their discretion for indefinite periods.
It's instructive to see examples of a system where a chief executive can lock up whoever they choose indefinitely without charges. Yesterday, citizens in Malaysia struck out in protest:
Police broke up Malaysia's biggest protest in nearly two years Saturday, firing tear gas and chemical-laced water at thousands of opposition supporters demanding an end to a law that allows detention without trial.
Witnesses estimated that as many as 20,000 people took to the streets of Kuala Lumpur, defying government warnings not to participate in the rally against the Internal Security Act, which allows the indefinite imprisonment of people regarded as security threats.
The crackdown could erode support for Prime Minister Najib Razak, who took office in April and has been battling efforts by opposition parties to portray him as a leader who disregards public opinion on issues such as human rights and freedom of expression.
Kuala Lumpur police Chief Mohammed Sabtu Osman said authorities arrested 438 people after about six hours of mayhem in which riot police wielding batons chased protesters down the city's streets, scuffled with them and dragged many into detention trucks.
Malaysia is a constitutional monarchy with a bicameral legislature and a British-style Parliamentary system. The Prime Minister is elected by the people. And yet the Internal Security Act, or ISA, has been around since the 1960s, designed to detain "security threats," no doubt including those detained yesterday after the protests. Incoming Prime Ministers traditionally let several ISA prisoners go when they first assume office, only to capture others soon after. Further, Malaysia has a troubled recent history when it comes to detention:
Human rights lawyers fought off an application by the Malaysian police to remand two youths aged 16 and 13 for allegedly taking part in an August 1 mammoth rally to protest a draconian law – the Internal Security Act – that allows for indefinite detention of civilians without trial.
“The two kids are free now. The application was denied but it was an eye-opener to see the grounds put forward by the police. They were so flimsy,” said Jonson Chong, who together with a team of other lawyers including N Surendran and S D Arunasalam challenged the bid to put the under-aged pair in jail [...]
But perhaps another key reason for the hysteria over the remand of the children was also because of the long string of custodial deaths. Through the years, hundreds of suspects and witnesses have died suspiciously while in the custody of federal agencies such as the police and the Malaysian Anti-Corruption Commission.
Barely two weeks ago, a 30-year Selangor state political officer Teoh Beng Hock fell to his death from the 14th floor office of the MACC after a marathon investigation. There is widespread belief that his interrogators contributed to his demise and an inquest is now taking place.
“Police ought to be trained in children’s rights. This is so basic. But what happened was that they were only concerned to carry out the bidding of their political masters without respecting the children’s rights. These two are clear cut cases of political retaliation because both parents are known activists,” said Jonson.
Another 16-year old Faizudin Hamzah was less fortunate. Arrested at 11.55pm on Friday night at the central bus station, he was remanded for four days. Police have still not given any reason. The magistrate granted an omnibus remand order without even seeing the boy, who was sleeping when he was detained.
So we have a country which engages in indefinite detention of those described as threats, though that has crept from threats of terrorism and security to "threats" of dissent. They have imprisoned even minors under this statute. And they have beaten, tortured and even murdered people in custody.
Absolutely none of this is in conflict with the recent past in America. The only thing different here is that Malaysia's indefinite detention law has proven durable and lasting, coming up on its 50th anniversary. Once an executive is handed such powers, one after another has sought not to repeal them but to implement them, even after initially freeing some prisoners. Prime Ministers of all political stripes have used the law. And the nature of power being what it is, that would surely be the outcome if Obama decided on a system of preventive detention here.
Last September, the US State Department actually had the nerve to criticize the Malaysian government for implementation of the Internal Security Act to silence dissent:
The United States summoned Friday Malaysia's top envoy in Washington to protest its crackdown on dissent at a time when the opposition was attempting to take over power in Kuala Lumpur [...]
"Peaceful expression of political opinions is a fundamental right and critical to a democracy," a State Department official told AFP.
"The United States believes that the Malaysian government should provide due process and treatment consistent with Malaysian law and international standards," said the official, speaking on condition of anonymity.
"We expect that democratic countries that purport to advocate free expression of political views will not curtail such freedom," the official said following the trio's arrest.
The Obama Administration should probably take a lesson in humility before making a similar statement. And they should look at how indefinite detention has endured in Malaysia and other countries throughout the world, with painful consequences, before trying to implement it here.