2008年10月1日星期三

废除内安法令,留下历史足迹――致首相公开信(转)

本文转载自:《独立新闻在线》

原文由再益依布拉欣撰述,由《独立新闻在线》庄迪澎翻译。

先说说这个再益依布拉欣,是我国难得的一个说到做到的政客,他是我国现任首相阿都拉在今年3月8日的选举遭到滑铁卢后,特地请来担任首相署部长一职,以便改革我国的司法,好顺应我国人民对改革司法的要求。

后来发生什么事情呢?我之前的文章有说到,完全不民主的内安法令再次被动用,来逮捕三个怎样看都没有能力对国家治安造成威胁的人。然后再益就要求政府放人,并宣称若不放人,就辞职。

本来还以为他也和其他政客一样,说说而已,没有想到真的看到他辞职了!好汉一个!

直到今天,虽然被扣留的三人中,有两人已经被释放出来了,可是拉惹伯特拉非但没有被释放,更被延长扣留多两年。这些对阿都拉宣称要改革司法的举动,讽刺之极!

在这种情况下,再益依布拉欣于昨天(9月30日)写了以下的信件给阿都拉,希望他可以在任内废除内安法令,成为我国历史上的一个英雄。至于首相愿不愿意听从,那就真的天晓得了。

以下是经翻译过的信件内容

亲爱的首相先生,

我国宣布独立时,我们的第一任首相提出了马来西亚人的崇高愿望与梦想:马来亚是凭自由与正义的原则立国,且承诺我们将时时携手改善国民的福祉与幸福。

那一个重要时刻已经历了许多年,但今时今日,这些愿望与梦想仍然一如既往那样实在且事关宏旨,这是建国初期营建的强有力基础所带来的成果。《联邦宪法》及凭其制订的法律都有很好的根基,它们体现了法治的民主社会的关键基石。马来西亚的司法曾经得到马来西亚人的尊敬,且成为其他国家的楷模。我们早期的首相――东姑阿都拉曼、拉萨及胡先翁――是实至名归的正直领导人、爱国志士;最重要的是,他们为人谦卑。他们相信我国宪法阐述的原则与价值,并凭此建设这个国家。

马来西亚国父及第一任首相—东姑阿都拉曼
马来西亚国父及第一任首相—东姑阿都拉曼
即使他们在1960年制订了《内部安全法令》,他们非常谨慎且抱着歉意。东姑阿都拉曼明确指出,制订该法案是要处理共产主义的威胁。“我和我的内阁同僚们向庄严的国会及国家承诺,《内部安全法令》赋予政府的巨大权力绝不会被用来扼杀合法的反对派和消除合法的异议”,这番话是东姑阿都拉曼说的。我们的第三任首相胡先翁强化这一立场时说道,制订《内部安全法令》的目的不是为了镇压合法的政治反对派及公民社会的民主活动。

三个星期前发生的事情,迫使我反思政府使用《内部安全法令》的方式。这一反思不幸地让我有此结论:政府一次又一次地令这个国家的人民失望,一再背弃东姑阿都拉曼所作的庄严承诺,这是因为政府及这道法律错误地允许内政部长凭他认为适当的任何理由扣留任何人。这种主观的审核权经被滥用,以谋取某些政治利益。

历史是伟大的教师,在此事上尤其意味深长。即使粗略的检验使用《内部安全法令》的方式,几乎从一开始就会发现,其原有用意如今已成了政治的牺牲品。

茅草行动的幽灵困扰着我们

令人遗憾的是,东姑阿都拉曼也背弃了自己的诺言。1965年,东姑阿都拉曼的政府扣留了布哈努丁希尔米(Burhanuddin Helmi),他是一名实至名归、地位崇高的马来人知识分子、一名曾任回教党领导人的民族主义者。他被关押至1969年逝世为止。布哈努丁希尔米是个政治反对派,但难以想象他竟被说成参与武装叛乱或《内部安全法令》原意要处理的共产主义活动。这场扣留是个畸变、是允许政治践踏法治的一段令人遗憾的时刻。

不幸的是,它似乎开创了一个先例,过去多年来,许多人因被视为威胁现有政权而被扣留。即使我国文坛宿将、已故国家文学家沙末依斯迈(A Samad Ismail)也曾在1976年遭受《内部安全法令》之害。他怎么可能会是国家安全的威胁?

我无需提醒你,1987年茅草行动的可怕影响,其幽灵仍困扰着政府,也困扰着这个国家爱好和平的人民,其投下的阴影深深的笼罩着我们所有人。那段黑暗的日子里,超过一百人因威胁国家安全的说法而被扣留,而时至今日仍有许多疑问尚未解答。他们为何会被扣留,政府从来没有清楚地向马来西亚人说明,而且为何他们从没有被控上法院,也没有任何解释。那些被扣留者包括目前仍活跃于国会的资深在野党国会议员。唯一确定的一件事,是当时正是巫统面临领导危机的时刻。最近一连串的《内部安全法令》逮捕行动,也在巫统再次浮现领导危机之际发生,是不是那么巧合?

在2001年,公正党的改革人士被扣留,政府的举措已被联邦法院裁决为恶意及非法。这些扣留者之所以会继续被扣留在甘文丁扣留营,是由于《内部安全法令》已在1988年经历了令人质疑的修订,以排除法院就内政部长的扣留令展开司法复核。马来西亚人被告知,这些被扣留者试图通过军事手段和暴力示威推翻政府,但已经过了七年,政府还没有提出证据支持这一论断。更令人不解的是,其中一名所谓的武装分子依占(Ezam Mohamad Noor)不久前还大张旗鼓地重新加入巫统,俨然巫统的重大斩获。

政府任意打压合法异议

大约在同一时间,回教党党员也因被指为武装分子且和国际恐怖主义有联系而被扣留,包括吉兰丹州务大臣聂阿兹的儿子聂阿德里(Nik Adli)。政府向马来西亚人承诺,将公布恐怖活动及这些被扣留者的联系的证据,但到目前为止都没有出示这些证据。

政府在2007年杪扣留兴都权利行动力量(Hindraf)的五名领导人时,也采用了同一公式;他们告诉马来西亚人,这些人试图推翻政府,且和斯里兰卡的“淡米尔之虎”军事解放组织有联系。不过,迄今为止,政府还没有举出具体证据,以支持这一说法。因此,这五个人被扣留,似乎乃因为他们动员马来西亚印度人以和平手段表达他们对于族人被边缘化的挫折感。这个事业一直被视为正当的,而兴都权利行动力量的示威并非法外行为,因为举行类似集会经被普遍公认为合法的表达方式。

同样,用以辩解最近扣留陈云清、郭素沁及拉惹柏特拉的理由也有诸多不足之处。扣留陈云清是为了保障其安全的说词是可笑的,至于说郭素沁煽动宗教情绪则是毫无根据的说法,她后来获释说明了这点。

《当今大马》主编-拉惹柏特拉
《当今大马》主编-拉惹柏特拉
至于著名的政府批评者拉惹柏特拉,细读他的作品能发现他可能羞辱政府和政府里的某些人,但言辞尖锐及羞辱人无论如何都不足以对国家安全构成威胁。如果认为他的作品侮辱回教、回教徒或先知,那就应以《刑事法典》提控他,而不是以《内部安全法令》扣留他。无论如何,他已因一些言论而被控煽动罪及诽谤罪,而他要受审,这表明他愿意且有能力为自己辩护。让他在法院受审,才能恰如其分的让正义伸张,毕竟在公众的观念里,由于政府是拉惹柏特拉刺耳批评的目标,因此政府有利益冲突。

上述例子显著说明,政府是不民主的。从这个角度看,过去25多年来政府似乎任意扣留政敌、公民社会及消费者权益工作者、作家、商人、学生及新闻工作者,而他们的罪名(如果可以这么说的话)就是批评政府。这些人为何被视为国家安全的威胁,已超出我的理解。不言自喻的现实是,政府笨拙地使用《内安法令》打压合法异议。

有些人支持和提倡如此这般任意解读使用《内安法令》,他们将设法说服你,为了维护国家利益,必须保留这种权力,即马来西亚人享有的和平与稳定,有赖于诸如《内部安全法令》的法律。这忽视了一个简单事实,即马来西亚各族人民都珍惜和平。过去四百人年来,我们都和谐地生活在一起,并不是因为这些法律的功劳。

人民的智能足以分辨“威胁”

我相信这个国家的人民的成熟与智能足以区分何者“真正”威胁国家,而何者只是威胁一些人的政治利益。马来西亚人已经知道,《内部安全法令》经被用来对付政治反对派,尤其是当领导层面对执政党内部或外在挑战之际。

今天的马来西亚人希望政府尊崇法院程序,让法院裁决某人是否犯下煽动种族或宗教情绪的罪行。他们不太愿意如过去那样,相信只有内政部长一个人最懂得国家安全问题。他们推崇自由及保护公民自由,其他国家的人民亦如是。

首相先生,本届全国大选结果清楚地表明,马来西亚人民要求恢复法治。我曾获您任命(尽管只是昙花一现)为负责法律事务和司法改革的部长,在这位子上,我更清楚地了解我们当中有多少人要改革,不是为了改革而改革,而是因为了解我国的体制已遭受何等的破坏,以及这些破坏对社会产生的冲击。

凭着您的祝福,我试图推动改革。我优先要做的是修复宪法在1988年的争议性修订之前存在的主要条款,进而恢复司法复核权。我无需提醒你,前述宪法修正案是因导致茅草行动及最高法院院长和两名高等法院法官被革职的一系列事件的结果。我最为关切的是,国会剥夺司法权及法院补救行政机关的违宪和任意行动的权力,以及公民自由因此被侵蚀的情况。正是那次的修宪,令《内部安全法令》有了几乎让内政部长免于司法复核的条款,此条款示范了1988年宪法修正案的不公义本质。

我还设法采取步骤,以协助司法机关重拾它曾享誉的独立性与权能。不幸的是,一些人把这些努力看作是不可取的,因为独立的司法机关意味着行政机关的“影响力”将会削弱。

我尝试做这些事,是因为体认到马来西亚的民主传统和法治正遭受围剿。不管怎样,让人人享有独立司法及公平审讯的机会,乃无可厚非。这是符合普世的人权准则,也符合回教――联邦宗教――的教义。未经制衡而能随心所欲扣留人的权力,是最为压迫的;即使在以色列这个永远处于战争的国家,扣留权也不会只掌握在一个人手中,而拘留令也必须得到法官认可。

废除内安法令,留下历史足迹

如果有国家安全方面的考虑,那么也应保障公民免于遭受不当处罚。在其他存在武装冲突的国家,审判是秘密进行的,以让法院审查被认为过于敏感而不便公开的证据,以符合正义所需。如果这些国家可以这么做,为何这里不能,毕竟造成政府制订《内部安全法令》的最后一场武装斗争已在1980年代结束了。马来西亚人权委员会的建议应能消除认为现有形式的《内部安全法令》仍然事关宏旨的看法,人权委员会主张废除《内部安全法令》,制订合时合地的反恐怖主义法律。《内安法令》制订时的条款已经过时了,它从来都无意成为马来西亚法律景观里的永久性特色。

政府以前述方式及不顾公众情绪继续使用《内部安全法令》,只会让人民自然而然地铭记这道法律是个压迫工具,而政府是行使压迫手段的政府。继续使用《内部安全法令》对一个正努力在全球舞台上寻觅自己的位置的社会,并无好处;对于帮助我国永续发展何其重要的民主,也不是个好兆头。

首相先生,我非常清楚地记得你曾经说过:如果一个人有机会为国家做些好的和正确的事情,那么他就责无旁贷。这句话令我非常尊重您,如果我有信心还能为马来西亚做一些好事,我会留在您的团队。您仍是首相,您仍有机会在马来西亚历史上留下您的足迹,我敦促您一劳永逸的废除《内部安全法令》,凭此留下您的足迹。

让我们努力实践我们敬爱的第一任首相向这个国家的人民所许下的庄严承诺。

接着是原文的(英文)

Dear Mr Prime Minister,

In our proclamation of independence, our first prime minister gave voice to the lofty aspirations and dreams of the people of Malaya: that Malaya was founded on the principles of liberty and justice, and the promise that collectively we would always strive to improve the welfare and happiness of its people.

Many years have passed since that momentous occasion, and those aspirations and dreams remain true and are as relevant to us today as they were then. This was made possible by a strong grasp of fundamentals in the early period of this nation. The Federal Constitution and the laws made pursuant to it were well founded; they embodied the key elements of a democracy built on the Rule of Law. The Malaysian judiciary once commanded great respect from Malaysians and was hailed as a beacon for other nations. Our earlier prime ministers, Tunku Abdul Rahman, Tun Razak and Tun Hussein Onn were truly leaders of integrity, patriots in their own right, and most importantly, men of humility. They believed in and built this nation on the principles and values enunciated in our Constitution.

Even when they had to enact the Internal Security Act (ISA) in 1960, they were very cautious and apologetic about it. Tunku stated clearly that the Act was passed to deal with the communist threat. "My cabinet colleagues and I gave a solemn promise to Parliament and the nation that the immense powers given to the government under the ISA would never be used to stifle legitimate opposition and silence lawful dissent", was what the Tunku said. Our third prime minister Tun Hussein Onn reinforced this position by saying that the ISA was not intended to repress lawful political opposition and democratic activity on the part of the citizenry.

The events of the last three weeks have compelled me to review the way in which the ISA has been used. This exercise has sadly led me to the conclusion that the government has time and time again failed the people of this country in repeatedly reneging on that solemn promise made by Tunku Abdul Rahman. This has been made possible because the government and the law have mistakenly allowed the Minister of Home Affairs to detain anyone for whatever reason he thinks fit. This subjective discretion has been abused to further certain political interests.

History is the great teacher and speaks volumes in this regard. Even a cursory examination of the manner in which the ISA has been used almost from its inception would reveal the extent to which its intended purpose has been subjugated to the politics of the day.

Regrettably, Tunku Abdul Rahman himself reneged on his promise. In 1965, his administration detained Burhanuddin Helmi, the truly towering Malay intellectual, a nationalist who happened to be a PAS leader. He was kept in detention until his death in 1969. Helmi was a political opponent and could by no stretch of the imagination be considered to have been involved in the armed rebellion or communism that the ISA was designed to deal with. This detention was an aberration, a regrettable moment where politics was permitted to trump the rule of law. It unfortunately appears to have set a precedent, and many detentions of persons viewed as having been threatening to the incumbent administration followed through the years. Even our literary giant, the late Sasterawan Negara Tan Sri A Samad Ismail was subjected to the ISA in 1976. How could he have been a threat to national security?

I need not remind you of the terrible impact of the 1987 Operasi Lalang. Its spectre haunts the government as much as it does the peace-loving people of this nation, casting a gloom over all of us. There were and still are many unanswered questions about those dark hours when more than a hundred persons were detained for purportedly being threats to national security. Why they were detained has never been made clear to Malaysians. Similarly, no explanation has been forthcoming as to why they were never charged in court. Those detainees included amongst their numbers senior opposition members of parliament who are still active in Parliament today. The only thing that is certain about that period was that Umno was facing a leadership crisis. Isn't it coincidental that the recent spate of ISA arrests has occurred when Umno is again having a leadership crisis?

In 2001, Keadilan reformasi activists were detained in an exercise that the Federal Court declared was in bad faith and unlawful. The continued detention of those that were not released earlier from the Kamunting detention facility was made possible only by the fact that the ISA had been questionably amended in 1988 to preclude judicial review of the minister's order to detain. Malaysians were told that these detainees had been attempting to overthrow the government via militant means and violent demonstrations. Seven years have gone and yet no evidence in support of this assertion has been presented. Compounding the confusion even further, one of these so-called militants, Ezam Mohamad Noor, recently rejoined Umno to great fanfare, as a prized catch, it would seem.

At around the same time, members of PAS were also detained for purportedly being militant and allegedly having links to international terrorist networks. Those detained included Nik Adli, the son of Tuan Guru Nik Abdul Aziz Nik Mat, the Menteri Besar of Kelantan. Malaysians were made a promise by the government that evidence of the alleged terrorist activities and links of these detainees would be disclosed. To date no such evidence has been produced.

The same formula was used in late 2007 when the Hindraf five were detained. Malaysians were told once again that these individuals were involved in efforts to overthrow the government and had links with the militant Liberation Tiger of Tamil Eelam of Sri Lanka. To date no concrete evidence has been presented to support this assertion. It would seem therefore that the five were detained for their involvement in efforts that led to a mobilisation of Indian Malaysians to express, through peaceful means, their frustration against the way in which their community had been allowed to be marginalised. This cause has since been recognised as a legitimate one. The Hindraf demonstration is nothing extraordinary as such assemblies are universally recognised as being a legitimate means of expression.

In the same vein, the grounds advanced in support of the most recent detentions of Tan Hoon Cheng, Teresa Kok and Raja Petra Kamarudin leave much to be desired. The explanation that Tan Hoon Cheng was detained for her own safety was farcical. The suggestion that Teresa Kok had been inciting religious sentiments was unfounded as was evinced by her subsequent release.

As for Raja Petra Kamarudin, a prominent critic of the government, a perusal of his writings would show that he might have been insulting of the government and certain individuals within it. However, being critical and insulting could not in any way amount to a threat to national security. If his writings are viewed as being insulting of Islam, Muslims or the Holy Prophet (pbuh), he should instead be charged under the Penal Code and not under the ISA. In any event, he had already been charged for sedition and criminal defamation in respect of some of his statements. He had claimed trial, indicating as such his readiness and ability to defend himself. Justice would best be served by allowing him his day in court more so where, in the minds of the public, the government is in a position of conflict for having been the target of his strident criticism.

The instances cited above strongly suggest that the government is undemocratic. It is this perspective that has over the last 25-plus years led to the government seemingly detaining arbitrarily political opponents, civil society and consumer advocates, writers, businessmen, students and journalists whose crime, if it could be called that, was to have been critical of the government. How it is these individuals can be perceived as being threats to national security is beyond my comprehension. The self-evident reality is that legitimate dissent was and is quashed through the heavy-handed use of the ISA.

There are those who support and advocate this carte-blanche reading of the ISA. They will seek to persuade you that the interests of the country demand that such power be retained, that Malaysians owe their peace and stability to laws such as the ISA. This overlooks the simple truth that Malaysians of all races cherish peace. We lived together harmoniously for the last 400 years, not because of these laws but in spite of them.

I believe the people of this country are mature and intelligent enough to distinguish actions that constitute a "real" threat to the country from those that threaten political interests. Malaysians have come to know that the ISA is used against political opponents and, it would seem, when the leadership is under challenge either from within the ruling party or from external elements.

Malaysians today want to see a government that is committed to the court process to determine guilt or innocence even for alleged acts of incitement of racial or religious sentiment. They are less willing to believe, as they once did, that a single individual, namely the Minister of Home Affairs, knows best about matters of national security. They value freedom and the protection of civil liberties and this is true of people of other nations too.

Mr Prime Minister, the results of the last general election are clear indication that the people of Malaysia are demanding a reinstatement of the rule of law. I was appointed as your, albeit short-lived, minister in charge of legal affairs and judicial reform. In that capacity, I came to understand more keenly how many of us want reform, not for the sake of it, but for the extent to which our institutions have been undermined by events and the impact this has had on society.

With your blessing, I attempted to push for reform. High on my list of priorities was a reinstatement of the inherent right of judicial review that could be enabled through a reversion of the key constitutional provision to its form prior to the controversial amendment in 1988. I need not remind you that that constitutional amendment was prompted by the same series of events that led not only to Operasi Lalang but the sacking of the then Lord President and two supreme court justices. Chief amongst my concerns was the way in which the jurisdiction and the power of the courts to grant remedy against unconstitutional and arbitrary action of the executive had been removed by Parliament and the extent to which this had permitted an erosion of the civil liberties of Malaysians. It was this constitutional amendment that paved the way for the ouster provision in the ISA that virtually immunises the minister from judicial review, a provision which exemplifies the injustice the constitutional amendment of 1988 has lent itself.

I also sought to introduce means by which steps could be taken to assist the judiciary to regain the reputation for independence and competence it once had. Unfortunately, this was viewed as undesirable by some since an independent judiciary would mean that the executive would be less "influential".

I attempted to do these things and more because of the realisation that Malaysia's democratic traditions and the rule of law are under siege. Anyway, there is nothing wrong with giving everyone an independent judiciary and the opportunity to a fair trial. This is consistent with the universal norms of human rights as it is with the tenets of Islam, the religion of the Federation. Unchecked power to detain at the whim of one man is oppressiveness at its highest. Even in Israel, a nation that is perpetually at war, the power to detain is not vested in one man and detention orders require endorsement from a judge.

If there are national security considerations, then these can be approached without jettisoning the safeguards intended to protect individual citizens from being penalised wrongfully. In other jurisdictions involved in armed conflicts, trials are held in camera to allow for judicial scrutiny of evidence considered too sensitive for public disclosure so as to satisfy the ends of justice. If this can be done in these jurisdictions, why not here where the last armed struggle we saw, the very one that precipitated the need for the ISA, came to an end in the 1980s? Any doubts as to the continued relevance of the ISA in its present form should have been put to rest by the recommendation by the National Human Rights Commission (Suhakam) that the ISA be repealed and an anti-terror legislation suited to the times enacted in its place. Containing as it did a sunset clause in its original times, the ISA was never intended to be a permanent feature of the Malaysian legal landscape.

Through its continued use in the manner described above and in the face of public sentiment, it is only natural that the ISA has become in the mind of the people an instrument of oppression and the government is one that lends itself to oppressiveness. Its continued use does not bode well for a society that is struggling to find its place in the global arena. It does not bode well for the democracy that is so vital for us to develop sustainably.

Mr Prime Minister, I remember very clearly what you once said: that if one has the opportunity to do what is good and right for the country, then he must take on the task. I respect you deeply for that, and if I were confident that I would have been able to do some good for Malaysia, I would have remained on your team. Sir, you are still the prime minister and you still have the opportunity to leave your footprint in Malaysian history. I urge you to do so by repealing the ISA once and for all.

Let us attempt to fulfil that solemn promise made by our beloved first prime minister to the people of this country.

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