Wednesday, November 19, 2008

ISA and the separation of powers

It's really surprising to me that a lot of young people these days, who are politically aware, lack the history knowledge and the reasoning power to be in the politic arena. This is dangerous but not surprising since our education system pays very little attention to history that really matters. One such group are the young people advocating the use of ISA.

Very often, the advocates of ISA say that it was necessary because there will be time when we need ISA such as to apprehend communist, terrorist or religion extremist. They would further emphasizes that what is happening now in Malaysia is merely the abuse of ISA, but ISA in itself has merits and therefore we should we refrain from abolishing it. How should we justify the existence of a particular law? If a law is susceptible to abuse, should the law remain? If the law is susceptible to interpretation errors, should the law remain? If the application of the law is solely dependent on those that are in power, should the law remain?

First, let us go back in history and try to understand how our modern political structure has evolved and why such structure is the best the civilization has to offer so far.

Centuries ago, Monarchy is the dominating political structure. All the power to govern a nation is in the hands of the king. There isn't anything wrong with all the power in the world in one person's hand. In fact, history have shown that there were good leaders that used this power to the benefit of the country.

The problem is that it takes only one 'suck-up' corrupted leader to ruin the whole thing. Once this 'suck-up' leader gets hold of the power, he/she would never let go the power, undoing all the good that the previous leader had done. Simply said, such model is just not sustainable. Countries using such model are resting their fate all on one person, and knowing that a person's character is always susceptible to greed and difficult to predict, the country's fate would then be a matter of dice-throwing. For historical reasons, it is obvious now that this system fails.

Democracy, as many of us know, means that the power is in the hands of the citizens instead of the king. The elected leader should be 'of the people, by the people and for the people'. So many thought, since the power is now not in the hands of the king but in people like us, this should be good! But that is not why democracy prevails. For if the citizens, through election, has chosen a leader that has absolute power, then the situation is exactly the same as above. The only difference being the name of the leader. Instead of being called the 'king', he/she is now called president/prime minister.

Therefore it is important to introduce another concept - the separation of powers. The French philosopher Montesquieu introduced the idea that the power of governing a nation can be separated into 3 distinct groups - legislative, judicial and executive. By distributing such powers among different group of people we will ensure that no single entity will have absolute power. Through such distribution of power, check and balance will be achieved.

The important of check and balance can be understood in a more simple manner. Anyone can and will make mistakes in their lifetime. But the chances of 3 different entity of different views making the same mistake at the same time is slim. And the purpose of check and balance is to have this 'self-reparing' mechanism, to ensure that a stupendously grave mistake is avoided at the country's highest decision making.

Obviously, such system is by no means the most efficient system. Monarchy is more efficient because what the King says, the country do. No debate necessary, no discussion necessary. On the contrary, for even a single thing to move in democracy, countless debates and discussions and revisions are required. Slow, but at least it ensures that mistakes are minimised.

Recall again why historical reasons have led us to democracy and separation of powers. We would rather have a less efficient system than a system that is fast and efficient but will doom us all.

In Malaysia, our prime minister (executive) is the leader of the majority party in the Parliament (legislative) and he chooses the Chief Justice (judicial). So where's the separation? Every four years, aren't we just choosing another 'King'?

Surely, until this point you must be pondering what has this to do with ISA?

ISA gives the right to the leader of this country to capture anyone who is deemed a threat to the country. The interpretation of this 'threat' should be done by the judicial arm of the country. But in Malaysia, it's the executive. As far as ISA is concerned, it's a complete overlap of executive and judicial powers. Again, how does this differ from the Monarchy system that we once had? The 'King' or the leader of the country, has at its own discretion decides who is a threat and order the apprehension of anyone in this country.

I have no qualms on the nature of the ISA, as its initial intentions may be good. As always, initial intentions of all things are always good-natured but somehow, someway along the history, things turn sour. Such is the case for ISA too. Since the end of the emergency in Malaysia, the ISA has been numerously invoked in the name of peace for the country, but in reality it's for the self-perseverance of a certain political party. The interpretation of the law is so subjective that it is easily susceptible to abuse. Granted that no law is free of abuse, but if a law such as ISA have in the past shown to have been severely abused more than it has been properly used, should not we re-consider?

If a law is susceptible to abuse and its application to the benefit of the country is solely dependent on the good-will of our leaders, why should such a law still exist? Isn't this going back to the 'good-old' Monarchy days when the fate of a country is solely dependent on the King? Hasn't history already shown that this will not work (in the long run)?

There have been calls for the ISA to be invoked only upon approval from, perhaps, the Chief Justice of Malaysia. But where would the Chief Justice get the information/advice from? If it is from the Police or the Prime Minister or the Home Minister, the result will obviously be the same because the source of information is the same (albeit the interpretation may be different). If he/she has to go through a series of investigation to make a decision to invoke ISA, then why not go through the normal procedure of prosecution instead of ISA? If that is the case, then ISA is only ISA in its name but not in its nature, for its initial conception was to be used for apprehending a person before he/she is proven guilty.

Either way, it is clear that there isn't a need for ISA in Malaysia, at least for now.

1 comment:

earnyee.tuan said...