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Cablegate: Pressure Mounts Against Internal Security Act (Isa)

VZCZCXRO3142
OO RUEHCHI RUEHDT RUEHHM RUEHNH
DE RUEHKL #1114/01 3580721
ZNY SSSSS ZZH
O 230721Z DEC 08
FM AMEMBASSY KUALA LUMPUR
TO RUEHC/SECSTATE WASHDC IMMEDIATE 2163
INFO RHEHNSC/NSC WASHDC IMMEDIATE
RUCNASE/ASEAN MEMBER COLLECTIVE PRIORITY
RUEHLO/AMEMBASSY LONDON PRIORITY 0552
RUEHBY/AMEMBASSY CANBERRA PRIORITY 2711
RUEAWJA/DEPT OF JUSTICE WASHINGTON DC PRIORITY
RHHMUNA/CDR USPACOM HONOLULU HI PRIORITY
RUEKJCS/SECDEF WASHDC PRIORITY

S E C R E T SECTION 01 OF 04 KUALA LUMPUR 001114

SIPDIS

E.O. 12958: DECL: 12/19/2028
TAGS: PTER PGOV PHUM KJUS KDEM
SUBJECT: PRESSURE MOUNTS AGAINST INTERNAL SECURITY ACT (ISA)

REF: A. KUALA LUMPUR 1026 - DPM NAJIB DISCUSSES ISA
B. KUALA LUMPUR 990 - RAJA PETRA RELEASED
C. KUALA LUMPUR 944 - MCA AND GERAKAN CRITICIZE UMNO
D. KUALA LUMPUR 846 - UPDATE ON RAJA PETRA
E. KUALA LUMPUR 834 - KOK RELEASED FROM ISA
F. KUALA LUMPUR 810 - UPROAR OVER ISA
G. KUALA LUMPUR 806 - JOURNALIST DETAINED UNDER ISA
H. 07 KUALA LUMPUR 902 - BEYOND ISA

Classified By: Political Counselor Mark D. Clark, reason 1.4 (b, c and
d).

NOTE: THIS CABLE TRANSMITS AN EDITED VERSION OF KUALA LUMPUR
1102 SENT ON 12/18/08 IN MORE RESTRICTED CHANNELS. END NOTE.


1. (S) Summary: The Malaysian government's use of the
Internal Security Act (ISA), which allows for detention
without trial and is central to the GOM's intelligence-driven
CT effort, has come under increasing political pressure over
the past three months. The GOM's employment of the ISA in
September to carry out three politically-motivated ISA
detentions unrelated to terrorism sparked unprecedented
public criticism. At least eight component parties from the
governing National Front (BN) coalition have since broken
ranks with the leading United Malays National Organization
(UMNO) and called for amending or abolishing the ISA. The
opposition party alliance led by Anwar Ibrahim has made the
revocation of ISA one of its highest profile policy goals.
In November, a High Court judge delivered a legal blow to the
GOM's wide discretion in using the ISA in a ruling that freed
blogger Raja Petra, and the GOM is appealing the decision.
Prime Minister Abdullah, his deputy and successor Najib and
Home Minister Syed Hamid have defended the ISA as essential
to national security, while Najib told the Ambassador
privately ISA should be retained but used more judiciously.
The GOM released 17 ISA detainees, among them 10 previously
linked to terrorist groups, including Yazid Sufaat, from
November 5 to December 4.

2. (S) Comment: The ISA is the cornerstone of Malaysia's CT
effort and has allowed Special Branch to take successful
preemptive action against suspected terrorists and their
supporters. Given the GOM's exclusive reliance on the ISA
"crutch" and on Special Branch's role, police and prosecutors
remain ill-prepared to investigate and bring to trial
terrorist suspects (or prosecute other complex criminal
conspiracies). The ISA also is subject to misuse for
political ends and is an important insurance policy for
maintaining UMNO in power. For both CT and political
reasons, the GOM will not readily give up the ISA. We doubt
that the increased political pressure and seeming swing in
public opinion against the ISA, due in part to its misuse in
September, will result in the ISA's amendment or revocation
in the near future, absent the Opposition coming to power.
These developments, however, reinforce the conclusion (ref H)
that Malaysia cannot take for granted the availability of the
ISA as a CT tool in the long run. It remains in the U.S.
interest to encourage and assist Malaysia to develop an
approach centered on prosecutions and convictions before an
independent judiciary to combat terrorism.

3. (C) Comment continued: It is unclear to what extent
outside political pressures played a direct role in the GOM's
latest release of ISA detainees. The decisions may have more
to do with Syed Hamid's personal exercise of authority as
Home Minister. Syed Hamid has taken a more proactive role as
Home Minister, compared to PM Abdullah who held the position
through March 2008 and tended not to become involved in
details. End Summary and Comment.

4. (C) The Malaysian government's use of the Internal
Security Act (ISA), central to the GOM's intelligence-driven
counterterrorism efforts, has come under increasing political
pressure since the September ISA arrests of three persons
based on political rather security considerations. The
September 12 ISA detentions of an ethnic Chinese journalist,
an ethnic Chinese Opposition MP (Teresa Kok), and a prominent
blogger (Raja Petra Kamaruddin) served the ruling UMNO
party's immediate political purpose of sending a warning to
opposition politicians and those considering defecting from
BN, as some UMNO politicians have told us. This came at a
time when Anwar Ibrahim was publicly threatening to bring
down the BN government via parliamentary crossovers by
September 16. The arrests, however, also sparked
unprecedented public criticism of the ISA, including from
UMNO's ethnic minority partners within BN. The Malaysian
Chinese Association (MCA), the key ethnic Chinese BN
component party, reportedly threatened to leave BN unless the
GOM released the Chinese journalist; the GOM complied within
less than 24 hours (ref F). Authorities freed MP Teresa Kok
after seven days. Home Minister Syed Hamid ordered a
two-year ISA detention period for Raja Petra, who was freed
on appeal in November in a surprise court ruling (see below).

5. (C) Comment: Unlike his predecessor Mahathir, PM
Abdullah refrained from using the ISA for political purposes
until December 2007 when police detained five leaders of the
ethnic Indian activist group HINDRAF that organized large
street protests. The public viewed the GOM's September 2008
ISA arrests as more transparently political, in part because
of the lack of public order concerns. End Comment.

6. (C) Political pressure against the ISA did not dissipate
following the release of the first two of the three recent
ISA detainees. At least eight component parties from the
governing BN coalition of 14 parties have since broken ranks
with UMNO and called for amending or reviewing the grounds
for the ISA, while several have supported the law's
abolition. In late September MCA, BN's second largest party,
called for "a comprehensive review of the ISA so that it will
apply strictly to cases relating to terrorism and subversive
elements," and also argued for the introduction of "checks
and balances in the use of ISA." The leader of the Gerakan
party, Koh Tsu Koon, called on the GOM to "abolish the ISA
once and for all," and rely on the judicial system instead.
The leader of the Peoples Progressive Party (PPP) also
initially called for ISA to be abolished, and on December 1
said PPP would withdraw from BN unless if the ISA were not
amended before the next election. In response, Prime
Minister Abdullah called PPP's bluff and said the small
party, which holds no seats in Parliament, could leave BN if
it wished. BN MPs so far have not backed up their criticism
of ISA with action. In response to a petition circulated in
Parliament for the review or repeal of ISA, only one BN MP
signed his name.

7. (C) The opposition party alliance (Pakatan Rakyat, or
Pakatan) led by Anwar Ibrahim has vocally condemned ISA as
undemocratic and unjust, and made the abolishment of ISA one
of its highest profile policy goals. A number of senior
officials from Pakatan's three parties, Anwar's Peoples
Justice Party (PKR), the Democratic Action Party (DAP), and
the Islamic Party of Malaysia (PAS) were detained under ISA
during the era of former Prime Minister Mahathir. Not
surprisingly, the three parties have vowed to revoke ISA if
they come to power. "Abolish ISA" was the most prominent
theme at PKR's annual party conference on November 29, which
Polcouns observed. The keynote event concluded with a focus
on ISA and featured large screens that scrolled through the
list of all 60-plus ISA detainees with the several thousand
attendees reciting the detainees' names as they appeared.
Well-known blogger Raja Petra, released from ISA detention
only days before, mounted the stage as the surprise guest of
the grand finale.

8. (SBU) On November 7, a High Court judge delivered an
unanticipated legal blow to the GOM's wide discretion in
using the ISA in a habeas corpus ruling that freed blogger
Raja Petra. The Embassy obtained the full text of the
judge's 22-page ruling. ISA Section 8.B states "there shall
be no judicial review in any court" of the Home Minister's
exercise of "discretionary powers in accordance with this
Act," except for compliance with procedural requirements.
The judge ruled, however, that the Home Minister decisions
could not be "unfettered and arbitrary," allowing for the
court to consider whether the Minister's ISA detention order
was "in accordance with the Act," and its focus on threats to
national security, including the national economy; threats to
maintenance of essential services; and threats to the public
emanating from a "substantial body of persons" who intend to
change the government through unlawful means. In the case of
Raja Petra, the judge concluded that the grounds for his
detention did not fall within the purview of the ISA. The
government has appealed the ruling and as of mid-December the
appeal remains pending.

9. (C) Many civil society groups took the opportunity over
the past three months to highlight their standing opposition
to the ISA, as well as other emergency ordinances that allow
for detention without trial. Both conservative and liberal
Muslim NGOs called on the GOM to abolish the ISA, as did the
inter-faith Consultative Forum that groups the leaders of all
major religions except Islam. The National Human Rights
Commission (SUHAKAM) chairman Abu Talib restated the
commission's existing position, namely "detention without
trial is against human rights principles; that's why we
advised the Government years ago to repeal the ISA."

10. (C) As questions over the ISA have mounted, Prime
Minister Abdullah, his deputy and successor Najib, and other
senior UMNO leaders defended the ISA as essential to national
security. In the wake of public criticism over the September
ISA arrests, Home Minister Syed Hamid, who has authority
under the ISA to approve detention orders, defended the Act
as essential and stated clearly that "we have no plans to do
away with ISA." In early December, Syed Hamid waved off
criticisms, arguing that the ISA "has never been abused or
used for politics." He also commented that, "Malaysians
sometimes don't know how lucky we are in that we have not
experienced what is happening in Mumbai (the terrorist
attack) and Bangkok (political unrest) now." He said the
fact that there have been no post 9/11 terrors attacks in
Malaysia was in part due to the ISA. On December 15, Syed
Hamid again publicly defended use of the ISA, stating, "More
apt, faster and better to use the ISA... detention under the
act is early action to prevent the security of the country
from being adversely affected."

11. (C) DPM Najib, who is anticipated to become Prime
Minister in late March 2009, told the Ambassador privately on
November 11 that the government continued to need the ISA,
"even though there are civil liberty concerns," but should
reserve ISA only for those who pose "serious threats, like
terrorists" (ref A). On December 8, PM Abdullah publicly
rejected calls for amendments to the ISA.

12. (SBU) In early December, local and international press
reported that the GOM had released 17 ISA detainees from
November 5 through December 4. Of those released, 10 had
been held for suspected links to Al Qaeda, Jemaah Islamiyah,
and/or the Darul Islam terrorist groups. The released
terrorist suspects included Yazid Sufaat, who played an
important role in Al Qaeda's anthrax development program,
according to the 9/11 Commission. The remaining seven
persons released consisted of suspected foreign agents (2
persons), southern Thailand separatists (2), document forgers
(2), and prominent blogger Raja Petra, according to an NGO
that consistently and accurately monitors ISA detentions.
In his public remarks, Syed Hamid said those recently
released ISA detainees had been rehabilitated and no longer
posed a security threat to Malaysia.

13. (S) Note: Authorities had detained the terrorist
suspects for periods between two and (in the case of Yazid
Sufaat) seven years, for an average detention period of four
years for the ten individuals. Special Branch relies on a
process for rehabilitating ISA detainees, and eventually
releasing them under restricted and monitored conditions when
judged necessary. The GOM has never attempted to prosecute
any terrorist suspects, including those held under the ISA.
This is due in large part to the fact that the GOM pursues
almost exclusively an intelligence approach to CT, as opposed
to a law enforcement approach that would involve criminal
investigations, collection of legally admissible evidence,
and development of cases for prosecution in the courts. In
2007, Malaysia amended anti-terrorism provisions in its penal
code and criminal procedures code, but authorities have not
yet utilized these provisions. Malaysia also has a poor
track record of prosecuting other complex criminal
conspiracies, including drug trafficking cases, preferring
instead to utilize the ISA and other emergency ordinances to
detain suspects without trial. End Note.

14. (S) A well-known journalist contacted us in early
December and said that officers of the Police Special Branch
had complained to him that Home Minister Syed Hamid had
ordered the recent releases of terrorist suspects without
adequate consultation and in some cases against the
recommendation of Special Branch. Australian and British
diplomats, speaking with Polcouns December 16, stated that
Syed Hamid, who is a lawyer by training, personally reviewed
the dossiers of ISA detainees and was inclined to approve
releases absent compelling justification from the Special
Branch.

15. (C) The Thai embassy contacted Poloff on December 15 to
express concern over the release of two ISA detainees (Abdul
Rahman bin Ahmad and Mat Tarmizi bin Shamsudin, who
apparently are dual-citizens of Malaysia and Thailand) who
had been held for their connection to the insurgency in
southern Thailand. The Thai diplomat said Bangkok considered
Abdul Rahman in particular to be a major player in the
insurgency. He noted that those released are required to
remain in Malaysia and check in periodically with the police.
The Thai diplomat said he believed the GOM released the
detainees in order to diffuse criticism of the ISA. We
learned that the Thai embassy also has contacted other
Western embassies (UK, France, Australia) to express concern
over the recent ISA releases.

KEITH

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