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Second Speaker : Mr. Sivarasa Rasiah (Human Rights Lawyer)

Terima kasih saudara Shabrimi kerana dapat mengkongsi pengalaman beliau. Diharap dengan ucapan yang telah diberikan tuan-tuan dan puan-puan telah mendapat gambaran yang lebih jelas tentang kekejaman ISA.
Selepas ini, saya ingin menjemput Tuan Sivara Rasiah, seorang peguam terkenal yang banyak mewakili kes kes Hak Asasi Manusia. Beliau adalah seorang director SUARAM dan juga member of Bar Council. Beliau adalah seorang penasihat undang-undang untuk PRM.
Sekarang, saya ingin menjemput Tuan Sivarasa.

Saudari Puan Pengerusi Majlis, ahli panel yang saya hormati, tuan-tuan dan puan-puan sekalian. Izinkan saya menyampaikan ucapan saya dalam Bahasa Inggeris sebab masa yang diberikan adalah terhad sedikit dan mungkin fikiran saya akan menjalan lebih licin dalam bahasa itu.

Good afternoon, ladies and gentlemen, one month ago I didn’t think I would be before a forum like this again talking about, to me what is a .. (…) I started acting for ISA detainees since the ’87 arrests and have been interacting on a regular basis with ISA detainees since then. And somehow somehow I’m getting less… shall we say I’m getting more optimistic. And I just hope that not too long more we won’t have to do anymore forums like this, then but I can see it coming see it coming… see the kind of changes in the country, the change in public opinion about what is happening. I feel confident somehow that not too long more one day we’ll be meeting in a forum like this, where we will be celebrating the last days of the ISA.

But its important to understand what its about, what the ISA is about, because for some of us, sometimes its just three letters-I-S-A. Some people in ceramahs make jokes that ISA is ‘Ikut Suka Aku’. You know, that’s true, but we also need to understand the reality of the ISA and I think you saw some of it when saudara Shabrimi spoke about his experiences. And what I just want to share with you today is how what Shabrimi went through in 1998 with a lot of other colleagues and what our colleagues right now are going through right now, this very minute as we sit here, as we sit here and talk, ten of them are going through the very same tortures, if not worse than what Shabrimi went through, I want to show you from a few documents how this has been going on for 30 over years- how we carry the sins of this torture collectively- I think all of us carry it for this long. And I want to just share with you some experiences and when you listen to this, I hope you can see Shabrimi’s voice speaking again, because this was written in 1978, what I’m going to read to you. This is about the experiences of detainees. This is a general description.

When the prisoner first arrives at the interrogation center, he is deprived of his clothes, watch and spectacles. He is issued with prison clothing, consisting of a t-shirt or singlet and ill-fitting trousers without a belt, so that in all times, he is left in the humiliating position of having to hold them up. Throughout the 60-day period, the prisoner is kept in solitary, in complete solitary confinement. Of the ex-detainees and detainees families from whom Amnesty International has received testimony, not a single case has been reported of a prisoner who has not been held in solitary confinement. Initially, a detainee is subjected to continuous interrogation for long periods without sleep- periods of continuous interrogation from 48 to 72 hours are common, and in one case of 7 days. The detainee is held in a dimly lit windowless cell, with very poor ventilation, infected with mosquitoes and other insects and not infrequently given burmin. There is no furniture in the cell. The prisoner’s bed consists of little more than a concrete platform with perhaps some wooden planks. After a few weeks, some prisoners are issued with mattresses, but these are filthy, urine-stained and infested with bed bugs. Despite of the poor ventilation and the fact that many cells are underground, the prisoner’s cell is extremely hot and uncomfortably, according to many prisoners, hot in resembling an oven. The prisoners are completely denied soap, toothbrush, towel and comb, or in many cases, in some cases, washing and toilet facilities. In some cases, only after seven weeks, were prisoners allowed to bathe. They were not provided with a towel for that time; they were forced to dry themselves in their own clothes. These are some of the experiences. Abdul Razak Othman is a lawyer, a senior lawyer known to all of us in the panel, former chairman of Parti Rakyat Malaysia, and he gets his experiences here in the same way- “I was given prison clothes which are normally worn for about a weak before a new change of clothes was allowed. I walked barefoot, as no slippers were provided. I slept on wooden planks with no mattress. I was interrogated nearly everyday. I would be taken to a very dark room which was entirely painted in black. A light would shine right in front of my face. Normally about four to five interrogators would be present. The interrogations were intended to brainwash me,” and so on, and so on. These were the descriptions, ladies and gentlemen, in 1978.

In 1988, the experiences of Operation Lalang, we had identical experiences described. And I just read a summary from the report which was written in 1988. Statements recorded from detainees while in detention were often made after they had been subjected to prolonged interrogation under mental and physical duress, threatened with indefinite detention without trial and deprived of sleep for long periods of time. The detainees were further said to have been humiliated during interrogation in deliberately over cool rooms, and in some cases been subjected to mock sexual assaults. In cases where detainees were found to be uncooperative with the quotations, interrogation officers are reported to have additionally resorted to beatings, slaps and punches. This was in 1988.

And in 1999, Amnesty produced a further report detailing the experiences, of, including saudara Shabrimi and other persons, including Anwar Ibrahim arrested under the ISA, and that report sets out the testimonies of detainees like Dr Munawar Anees, and I think all of you know what he went through. The kind of experiences he went through, which shows you that nothing had changed- the treatment, the torture that have been going on for all that period of time… identical experiences.

I acted for 3 persons in the operation lalang arrests. One of them, at that time was a young man like Shabrimi. He was the youngest detainee. He was 25 years old. His name was Julian Jeseeran. He was detained for the first 60 days. For those of you who are not that familiar with the legal framework, the ISA allows a first detention of sixty days, and after that, further periods of two years detention at a time, which is renewable indefinitely. And I think there is something we ought to know that in Malaysia we have detained a person without trial, without any proof of guilt, without trial and kept the person in jail for up to sixteen years. That’s what we’ve done. And that’s not something to be proud of. That is how long- the longest ISA detention in this country is- 16 years. The man was arrested as a young man in his 20s and he was forgotten about. And it was only after the operation lalang, detainees went to Kamunting, they found him there – forgotten about. And because of the campaign for the release of detainees in operation lalang, he was released together with them, and they came out in 1989. But he was almost a man of 40 by the time he came out. Sixteen years of youth over, without proof of guilt of any offence. Without proof of guilt. That is what we have done. And he is not just one, we have put people away for very long periods. And its not just the time in jail, it’s the kind of... I think there’s no other word but torture ... and I will only use that word. Torture. The torture they are subjected to. It is not just physical beating. Let us not look at torture as just physical beating. The special branch officers can break a man or a woman to a shriveling hulk, to shriveling huddle, a wreck of a person without touching him… without physically touching him. They will break you, they can , and they’ve shown it. That is why they want to take you away, they want the law which can allow them to kidnap you in the middle of the night from your house, or like Raja Petra, like a bunch of thugs, they stop him in the middle of the road, like a bunch of robbers and they kidnap him physically from his wife and child. And they take him to a dark cell. This is what the ISA can do to you. They know that under that law, they can hold you for 60 days in a room, and they put the thought in your head they can do anything to you. And whilst they’re threatening you, they’re also telling you, “I can go out, I can rape your wife, I can beat your child,” and they put in all sorts of thoughts into your head and that is what use to break your mind. Ultimately that’s what it’s about. It is not about investigation, it is not about finding out about crime, as Shabrimi said. It is about breaking people. And that is what the ISA is about.

It is for me, I speak as a lawyer, as an activist as well, it is a political tool. It is a political tool, which is there to be resorted to every time I feel challenged, I feel I have to be accountable to people, and the ISA comes out to basically, physically bash people into submission. That’s what its about. Its dressed up as law, but its actually thuggery dressed up as law. That’s what the ISA is. I think its time we have to call it that – thuggery dressed up as law. No civilized nation should tolerate this. We are religious people. Ask ourselves, look at our religions, all our religions, we have the greatest religions of the world in this country. Look at the values of our religions. Every one of our religions teaches us – you cannot punish without judgement, you must have proper judgement. And for judgement there must be a fair trial. You cannot just accuse and punish without proof. Every one of our religions, every one of our spiritual traditions teaches us that. You cannot accuse falsely. You accuse (….) you prove the evidence before a fair and impartial trial. And having proven the wrong doing, then you may punish. You may punish by depriving liberty, and so on. There’s no other way. This is not about western values. Are those western values what I’ve just described? I say no. All that is what we are taught, we are taught in our own spiritual traditions. Our own cultural religious traditions teach us that. So if somebody wants to come and say that those who are against the ISA are speaking like western human rights activists, they don’t understand our country, I say I’m sorry. I don’t need to worry about western perspectives. I know through my own perspective this law is thuggery, this law has to go. It is wrong. And one just has to look at the damage that it has done, just to see them.

I was telling you about the young man I acted for in 1987 in operasi lalang, he was 25 years old, almost like Shabrimi. Imagine the kind of experience that he went through that it took him 10 years before he could stand up like what Shabrimi just did and speak in public about what he went through. It took him 10 years. Before that he could not, he could not talk about it. It was locked up. The only way he could deal with it, he had to lock it up in his mind and forget about it. Until he was counseled and counseled and he finally learnt to deal with it. And 10 years after that, he could stand up like Shabrimi and he could describe the horror of what he went through. So these are the kind of experiences that we have seen. A few days ago, four women detainees from operasi lalang described the kind of beatings, the torture that they went through. It’s not just men. They are prepared to subject women to similar treatment. And they have done it. They’ve done it in the past. So, ladies and gentlemen, that is the reality of the ISA.

We saw how it was used to arrest Anwar Ibrahim, hold him in jail, and beat him brutally. And I need to share this with you- In the habeas corpus hearings that were recently happened in Shah Alam High Court, when we spoke about physical and mental torture in ISA cases, and we used Anwar Ibrahim’s case as an actual proven example, the lawyers of the police, the litigators’ chambers said in open court, “Well, that is one isolated case.” That was their response, “One isolated case”. We didn’t say this in open court, but I think Anwar Ibrahim’s case was the only case ever subjected to a full independent inquiry, which was conducted - a Royal Commission of Inquiry, and they found assault. So as far as I’m concerned it’s a hundred percent record- one case investigated, one case proven. That’s the reality of it. Its the only case that we’ve ever investigated impartially and independently to find out what happened. And if we do the same with every other case we will reveal what Shabrimi just went through. What Shabrimi went through, should not be allowed to happen to any human being, unless you are actually proven guilty of some wrongdoing. I think that is a fundamental principal we cannot get away from. This principle is acknowledged, recognised in international human rights instruments, the Universal Declaration, the Convention on Civil and Political Rights and so on. For me, those principles are no strangers to us. We know those principles from our own traditions, and, but unfortunately we have the legacy of the ISA here to deal with, and we need to work against it.

habrimi also touched on the legal aspects.. if I could just develop that a bit more. Unfortunately in the 70’s or the 80’s we had cases taken to court on the ISA detentions, and the judgements that were handed down in the course of those cases has also made the power of the ISA even more absolute. Unlike other countries, in for example if I can use South Africa as an example, now South Africa, especially the apartheid era of South Africa is nothing to be proud of for any country. They also have an ISA, they had an ISA for that period. They removed it in 1993, after they removed apartheid, they brought in a very strong civil rights type constitution and they’ve removed the ISA. But for most of that period they have a very similar ISA to what we have- almost identical language. But even in the darkest times of apartheid, we found that South African judges were prepared to intervene in ISA arrests in South Africa. In other words, what they would do- If the police did an ISA arrest in South Africa, there would be habeas corpus applications and the court and the police would say I’m arresting this person because I believe he is a threat to national security – that is the usual language used in the ISA. And the court there would require the police to show in affidavit form some evidence that that person was actually a threat to national security. I other words, they would have to show some evidence that that person was involved with some group of people who was collecting arms, who was found with arms with them, who was planning some blowing up of some government buildings.. some evidence had to be shown to the court. Only then would the court accept that the detention was lawful and allow it to continue. That was the position even with the darkest times of apartheid South Africa.

Compare the position with Malaysia. Our judiciary unfortunately, and I have to say this, unfortunately took a very much more hands-off approach, and virtually basically gave the executive a blank cheque to detain. In other words all the detaining authorities had to do in Malaysia, was to say in the affidavit, I believe that Shabrimi, for example, is a threat to national security. Full stop. And they say I won’t look into it. I, the court now, cannot ask for the basis, I cannot evaluate that. And since the executive has said so, I must accept it. And unfortunately that is the state of the law, that so when we.. cases in ’69 established that test, when we tried to challenge the test in 1987, the Supreme Court also maintained that test.

Its very interesting that, and in fact I remember one of the lawyers in the ’87 cases actually telling the judge in that particular case, “Even in South Africa my lord, they use an objective test.” What we call the objective test, meaning requiring the police to produce some evidence. And the judge got quite upset” What do you mean South Africa?” he said. He said “No, even in South Africa they ask for evidence… why can’t we do the same here?” Judge said no; Supreme Court agreed with him unfortunately.

It’s very interesting that even in Singapore in 1989, the Supreme Court there or rather the Court of appeal there decided to bring in the objective test for their ISA arrests. (…) there was a decision passed in 1989, but unfortunately, the Singapore government didn’t like the decision and passed legislation to neutralize the effect of the decision. But that is how.. I would say even Singapore judges were prepared to go that far. So now we hope we’ve gone back to court on the recent habeas corpus, recent ISA arrests, and we hope this time.. I don’t say it with much hope but I just say we hope that the Malaysian judiciary, or at least some in the Malaysian judiciary are prepared to re look the state of the law on the ISA…are prepared to at least intervene more to protect human rights in our country.

The state of the law for ISA arrests is actually, as I said earlier, almost, it gives the executive almost like a blank check in terms of the power to arrest …almost a total power. We have tried to argue in the past that when an application for habeas corpus is made (habeas corpus means where we challenge the detention and we say the detention is unlawful and we have a hearing in court). We have asked that the detainee must be present in court, which is the case all over the world and as even in South Africa.

Unfortunately, in the operation lalang cases and since then, our judiciary has taken the approach – no, there’s no need for the presence of the detainee. So you’re arrested, you’re locked up, your lawyers go to court, and you’re still stuck in the cell. I mean, you know when you look at it another way, you can be the most terrible of murderers, you can be the most foul rapist, you can be a robber of the most wicked kind, but you are given a trial. You are given a trial- if your offence is not faced with a penalty of death, you are given bail, unless of course if you are a political prisoner like Anwar Ibrahim then you are not given bail, but in every other offence except those facing a death penalty in our country you get bail- its automatic. It’s just a question of how much and what conditions… but bail is given unless there are some very very special reasons not to give bail. You get lawyers to defend you. The trial cannot proceed if you’re not well, if you’re not in court, it cannot proceed. It’s a fundamental principle in criminal law. The trial… no criminal process can take place in absenture – it’s a fundamental human right. But when it comes to ISA, detention without trial, all that goes out the window. So when we had the habeas corpus cases recently we asked for the detainees to be produced in court. One High Court judge took the old view and said, “No, I will not allow that” In Shah Alam, another High Court judge has taken a different view and said yes. His view has said, did any detention, and I think we need to abhor this position taken by the High Court- he says any detention is prima facie unlawful. The onus is on the detainer to come to court and show why it is lawful. The presence of the detainee is a critical part of that process. The detainee is a party to that process. He is the person who has been detained. So there is no way you can… there is no basis for keeping him away from that process. And he’s based it on article 5 of the Federal Constitution. So we have a High Court taking a different position. And I think pretty soon you will be hearing from the Federal Court of this country what their position will be. We can only hope that they will uphold a position that will protect human rights and not remove what we consider, what lawyers would consider as a fundamental protection of human rights. In other words the detainee is allowed to be present during the hearing, the detainee is allowed legal access- and that is fundamental as well.

Access to lawyers is a very fundamental human rights protection. And its given, I mean it is something that is guaranteed under Article 5 of the Constitution. Again, under the ISA unfortunately, what happens is, the police stops all access to lawyers. For the first 60 days no ISA detainee has ever seen a lawyer in this country. They allow family visits after awhile, but family visits are part of the manipulation as far as I’m concerned. Family visits are used as a reward for the detainee for cooperation, to manipulate the detainee, to manipulate the family. Let’s not be mistaken about the purpose of family visits. The critical protection of access to a lawyer, which is a guaranteed fundamental right under our own Constitution is taken away. And unfortunately our Courts have gone wrong with that up to now. They are trying to battle away in Court to try to re establish that right, but again I don’t know.

We have to wait and see, whether the courts are prepared to change their previous attitude in these cases, and unfortunately their previous attitude has been to say that in a case like this the police have the right to postpone the access to the lawyer. So they have taken that view and so the police say this is National Security we will not allow lawyers and that is allowed.

Well, if you want to compare it to a different kind of situation, in Ireland for example, there you have a certain amount of what you call, a public order type of problem, with activities of the IRA, who have used guns, violence, blowing up buildings, shooting people, shooting security forces and so on –Even in a situation like that, a person who is suspected for being an ISA terrorist is given a lawyer after a few days of detention. It is a guaranteed right and if it refuses a lawyer, the detention will be declared unlawful. In a context like that. And , I mean, if you compare our context, it is so far removed even when you compare it to the IRA type of context. There is nothing in this country in the last 10, 15, 20 years that even remotely resembles any kind of serious public order problem, like what say you have in Northern Ireland, or in other countries. And the laws here are far worse and far more invasive of basic human rights.

So ladies and gentlemen, I think it’s important to sit back, and whilst we take in the reality of the ISA, I think we must also take the approach that knowing the ISA is also about empowerment, a lot of people are fearful about the ISA. A lot of people want to do something, they want to change things for the better, but when people start reminding them, “Hey, don’t do this, you’ll get arrested under the ISA, you get locked up”, they worry, sit down, they say, let me get on with my life … because of the ISA.
And if that is going to happen, then the ISA has worked. The ISA has worked. Because that’s what its there for. It is there for to make sure that all of us are frightened of the ISA. Are frightened to step out, do anything, to work to bring change by peaceful means. And if it makes us /increases that mindset, it has worked They arrest people now also…when people are showing they’re not fearful, people are coming out, demanding for change, then they say ah we’ll go one step further. I’ve to turn the threat into a real one, so I arrest a few people… so the people don’t see it as academic, they see it as real arrests. And they hope by arresting 10 people, that all of you will quietly sit down, go back home, lead your own lives, nothing will change. That’s what they want.
And if they have succeeded in creating that message in your minds, the ISA has worked. The law, which is actually thuggery dressed up as law has worked. So I think, we need to know the ISA, we need to know the realities, but we must not have the fear. That fear, we must transcend. That is very important to understand. Learning about what Shabrimi has gone through, must make you aware of what he has gone through, and must make you be prepared to go through what he has gone through. If you know it now, let’s not fear it anymore. We know it, we can go through it and we will survive it, (…) and we will remove this law one day. But we must have that mindset. And anyone who speaks in the fear of the ISA, we need to take that mindset away. Because any other approach will mean that, the persons who want the ISA to dominate this country, to be dictators over this country have won. On that note, ladies and gentlemen, thank you very much.