Based on the reasons given above, it is submitted that the provisions regarding preventive detention in the States are not compatible with the provisions of the ICCPR. Instead, the legal standards set out in the States fall short of the standards expected by the ICCPR. This is the case both in theory and in practice.
There is no doubt that if the States were to be State parties of the ICCPR, their present laws regarding preventive detention cannot remain.
While there have been calls for the States to repeal their respective ISA, it is observed that only 2 major provisions in the ISA provide for preventive detention – the first is under section 73 which can be carried out by the police while the second is under section 8 which can be ordered by the Minister. SUHAKAM noted that “…the majority of the provisions that are contained in the ISA create criminal offences that are to be administered under the normal penal system and do not thus necessarily infringe human rights principles per se” . As such, it may be argued that there may not be a need to repeal the entire Act just because of these 2 offending provisions and those related to them.
Whatever the decision is, it is submitted that the new law (or the amended law as the case may be) must have the following provisions:-
(a) Clear definition as to when preventive detention can be carried out
(i) The discretion must not be arbitrary.
That means that it must be appropriate, just and predictable.
This can be achieved if the grounds of detention are severely limited to matters where the general laws of the land cannot deal with.
The grounds must be stated clearly and in unambiguous terms in the act.
In view of the serious consequences of an order for preventive detention, the discretion should not be extended to any police officers of any rank.
The discretion to detain further than 24 hours should rest with a court of law. As such, the detainee must be brought before a competent court which will have the power to either order an extension or a release. Extensions must be limited and reasonable. It is submitted that 1 week is reasonable and if the police requires more time to investigate, they should go back to the court and explain why they need to do so.
It must be used sparingly and only at the last resort
(ii) The discretion must be in compliance with the standards of lawfulness in the ICCPR. It is submitted that there should be a provision in the act which provides that in matters where conflict and/or inconsistencies may arise between the provisions of the act and the ICCPR, the latter should prevail.
(b) The right to be informed of reasons of detention must be guaranteed
The act should provide details on what must be informed. Basically, sufficient information must be given so that the detainee will understand why he is being detained and be able to instruct his solicitors competently if such grounds are not true
While it is recognised that in certain circumstances, it may not be practicably possible to inform the detainee of the grounds and reasons at the time of arrest, nevertheless, it must be informed as soon as possible.
(c) The right to take proceedings before a Court must be guaranteed
Such right must not only be made available to the detainee but it must be communicated to him.
This includes the right to consult his solicitor at any time after his arrest
Proceedings must be taken before a court which has the jurisdiction to rule on the lawfulness of the detention. This jurisdiction shall include the jurisdiction to rule on both procedural mattes as well as on the substantive issues.
The court must also have the power to order the release of the detainee if it finds the detention to be indeed unlawful
The courts shall also be given the freedom to consider the legality of the exercise of discretion by the state in an objective and subjective manner
Proceedings must be heard and disposed off in an urgent manner.
In order not to make a mockery of a court’s decision to order the release of a detainee, there should be a restriction on rearrest taking place immediately after a detainee is released by the court.
(d) Treatment of persons detained:-
(i) There shall be provisions on the places of detention.
Such places must be specifically meant for these detainees.
They should not be put in prison or held together with convicted prisoners
These detention centres must provide the necessities
They shall allow periodic visitations by recognised Human Rights organisations, be it governmental or non-governmental
(ii) There shall be provisions guaranteeing the right to be treated with humanity and with respect for the inherent dignity of the human person as well as the right not to be subject to torture, inhuman or degrading treatment or punishment. To ensure that these rights are guaranteed, there should also be provisions on:-
Disallowing incommunicado detention
Allowing the detainee to see his lawyer and family members in private on a regular basis for a reasonable amount of time
Disallowing prolonged solitary confinement
The right to lodge complaint against maltreatment must be guaranteed and communicated to the detainees
There should be provisions which obligates the state to investigate such complaints thoroughly, fairly and without delay
Punishment on those who violate these rights
There should be provisions regarding training, education and “refresher courses” for those personnel who have authority in the detention centres.
(e) There should be provisions allowing for compensation for unlawful detention
While having these laws in place is not a guarantee that abuses and violations of human rights will not take place, it is an improvement from the previous situation where the rights were not protected. Once these provisions are in place, the human rights violations which have been taking place can be curbed. After all, the ICCPR does not prohibit preventive detention completely. It merely provides that the human rights of those detained be respected and upheld.
It is submitted that the ISA has become such a handy tool for the executive in the States to deal with urgent matters involving national security that it is difficult for the States to limit its scope.
But the time has come where the States will have to realise that the laws on preventive detention which infringes the basic rights of the detainees can no longer stand. Further, the general laws of the land can easily be used to protect the national security through the normal due process of law and through the judiciary. There can surely be no good reason to retain laws which do not respect basic human rights but instead facilitates the violation of the same.