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When it comes to changes in Malaysia's security laws, read the political fine print
Asia Sentinel - September 19, 2011
But much will depend on what replaces the laws. There is considerable room for political theater. The new laws, however, are expected to be modeled on United States and British laws, which themselves are not particularly liberal.
There is not much time left in the campaign season. National elections are expected in the first quarter of 2012, perhaps in March, during the academic recess, when schools can be used as polling stations. This change of heart needs to be seen in the context of the elections, contrary to Najib's rhetoric about freedom of expression. There appears to be no move to abandon either the Sedition Act or the Official Secrets Act, which are routinely used against opposition figures and bloggers and journalists.
The ISA is detested by a large number of Malaysians. It was instituted in 1960 by the British colonial government at the height of the Communist insurgency but has since been used against political opponents of the government. In 1987, the government ordered Operation Lalang, which resulted in the arrests of 106 people including Lim Kit Siang, the secretary general of the Democratic Action Party; his deputy chairman Karpal Singh; the youth chief of Parti Islam se-Malaysia, Halim Arshat; and a flock of social activists. Lim, Singh and 40 others were ordered detained for two years under the ISA. In total, according to information supplied by the government in connection with Najib's speech, nearly 4,500 people were detained as suspected terrorists between 2000 and 2010. Some 37 are currently being held.
Najib announced his reforms on television last Thursday night. They include abolition of the ISA, which allows for indefinite detention of suspects, as well as the repeal of the Emergency Ordinance allowing for detention without charge for two years. Another provision does away with the annual renewal of press and publication permits. Laws governing right of assembly are to be reviewed "to bring Malaysia into line with international standards," while ensuring that police retain power to prevent violence, he said.
"They will formulate other laws," a source in Najib's United Malays National Organization said. "Other countries have provisions for detention without trial. Since the ISA has been stigmatized as draconian, they can just write a new law. They may model the new laws on America's anti-terrorism law. Britain also has a new law for detention without trial."
America's Patriot Act was jammed through the US Congress amid hysteria surrounding the attacks of Sept. 11, 2001. The new security law could also be modeled on British law, which allows detention for 28 days without charge for terrorism suspects. In neither case are the laws particularly liberal, nor would they expand civil liberties by much.
The Patriot Act has been under fire from civil libertarians since it was passed, as it vastly expanded police powers, creating new crimes, new penalties and new procedures for use against suspected domestic and international terrorists. It authorized the indefinite detention of immigrants, allowed for searches of homes and businesses without the owner's or occupant's permission or knowledge, expanded FBI authority for warrantless wiretaps and expanded access to business records, even including the authority to see what books suspects borrowed from public libraries. Although the law has been amended slightly, it has been allowed to stand largely in its original form.
There is probably one important change in Malaysia. The new laws will take powers away from the Home Ministry and its feared Special Branch police and vest them in the judiciary, as they are in the United States, Britain and many other countries. That means law enforcement officials presumably would now have to seek permission from the judiciary before conducting arrests or surveillance. Malaysia has a notoriously compliant judiciary that bends to the wishes of the government. This means there will probably be little change for now. But should elections deliver a future government that appoints an independent judiciary, the changes could be beneficial.
The lifting of a requirement that media companies renew their publishing licenses annually, as stipulated in the Printing Presses and Publishing Act, appears to be a bow to reality. The change, however, is not a very deep one and probably results from Malaysia's being deeply embarrassed when censors blacked out portions of a story in The Economist during the crackdown on demonstrations demanding reform on July 9.
"In no way is this going to transform Malaysian society," said Masjaliza Hamzah, the executive officer of Malaysia's Center for Independent Journalism. "Not the media landscape, for sure."
The right to grant or revoke initial licenses remains with the home minister and can't be challenged in court, she said. "There are all kinds of changes that his announcement didn't address."
The fact that all of the major media are owned by government parties means they won't be changing their political tune anytime soon, licensed or not. Despite restrictions on opposition party publications, in reality they are sold off the newsstands as well.
The government has hewed grimly to the promise by former Prime Minister Mahathir Mohamad that the Internet would not be censored. As a result, news sites including the Malaysia Chronicle, Malaysia Today, Malaysian Insider and Malaysiakini have gained hundreds of thousands of readers while the government-owned mainstream media have continued to toe the government line.
"I think UMNO feels that by trying to censor the news, it makes it even worse," a Kuala Lumpur source said. "This is all a matter of defusing land mines ahead of the elections. A lot of burning issues are being defused."
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