Tuesday, October 21, 2008

The Ends Of Justice



The Ends Of Justice

In 2001, ten reformasi activists were detained by the police under the ISA, amongst them Ezam Mohd Noor, Tien Chua, Raja Petra, Abdul Ghani Haroon and N Gobalakrishnan. Habeas corpus applications were filed, challenging their detentions for being groundless and in bad faith as the detainees were in no way threats to national security.

In the order of things, the applications of Ghani Haroon and Gobalakrishnan came up before Justice Hishamuddin Yunus who was then a judge at the Shah Alam High Court. A team of lawyers led by R Sivarasa presented their case and as the issues involved were complex, the Judge reserved his decision to a later date to give himself more time to fully consider the submissions and the law.

It was decided by the team that I would appear before Justice Hishamuddin on the day he was due to deliver his decision. If the decision was favourable, I was to obtain a statement from both Ghani Haroon and Gobalakrishnan as to what had happened during their detention by the police. The detainees had not been permitted to see their lawyers from the time they were detained. Five of the other eight detainees had had their habeas corpus applications disallowed by Justice Augustine Paul, then of the Kuala Lumpur High Court, and his decision was under appeal to the Federal Court. Any information I could get was relevant to whether the police had acted in bad faith and would be of great significance to the appeal.

The team was however concerned that should the court free Ghani Haroon and Gobalakrishnan, they would be rearrested as soon as they stepped out of the courthouse. This was not an unknown occurrence, Karpal Singh having been famously rearrested upon his being granted habeas corpus in 1987.

My brief was as such to come up with a way to keep our two clients within the courtroom and get a statement from them before they were rearrested, if this was to occur. This was not going to be easy and I remember thinking that law school had not prepared me for this. There I had learnt of an ideal world where decisions of courts were respected not just in letter but also in spirit.

The decision was handed down as scheduled late in the morning. Nerves had denied me any sleep the night before and were making me nauseous. Justice Hishamuddin began to read out what we were to soon discover was a comprehensive and admirable treatise on the liberty of the individual and the care with which that right was to be safeguarded against executive arbitrariness. Armed with the Constitution, his hand guided by justice and humanity, the Judge struck down the detentions with all the condemnation that oppressiveness deserved.

I did not know that at the outset of course. As Datuk N H Chan, formerly of the Court of Appeal, muses in his book ‘Judging The Judges’, keeping audiences in suspense was one of the small pleasures of being on the bench. Justice Hishamuddin exploited that privilege and saved his conclusions to the end. There were hints though and as I began to believe that we might just win, a shiver ran down my spine. It, and the immense satisfaction that I felt at seeing the law serve the ends of justice as the judge granted habeas corpus, have stayed with me till this day. That memory, and the undying hope that it gave life to, have taken me back into court time and time again since.

It was a Friday and the Judge directed that our clients be produced in court that afternoon to allow him to direct their release. I was grateful for the extra time this gave me to come up with a firmer plan of action. Though I knew what I was supposed to do, the details were more than slightly hazy.

Thankfully, adrenaline works wonders. As we made our way to the courthouse, it was clear that something was afoot. There was a tremendous police presence in the precinct and in the court complex. Roadblocks had been set up and visitors were being screened. It was apparent that the police expected trouble and it was not difficult to see why. Though by winning supporters would be jubilant, not angry, an outburst could occur if provoked in the way a re-arrest would.

I felt outraged. We had fought hard and fair, and we had won the day. Surely, that could not just be wiped away.

If it was naiveté that fueled my emotion, I was glad. By the time I got to my feet, all nervousness was gone. Luck was also on my side, it would seem. Datuk Hishamuddin had had to walk through the throng of police officers as well. As I pointed their presence to the Judge and expressed my concerns about the possibility of a re-arrest, he turned to counsel for the government and asked whether this was going to happen. Counsel was equivocal and the Judge was not impressed. Turning to me, he said that I could take it that there was going to be a re-arrest and asked what I wanted.

This was the moment of truth. Noting how he had concluded that the detention was unconstitutional and inhumane, I explained how the wives of the detainees had been informed and were on the way from Penang even as I spoke. I urged him to consider how unjust a re-arrest of the detainees would be and reminded him how, as a High Court Judge, he was empowered to give any direction to give effect to my clients’ constitutional rights. I asked that he restrain the police from re-arresting the detainees for a period of twenty-four hours and then I prayed.

Justice Hishamuddin granted the order. Our clients saw their wives and families. They were never re-arrested under the ISA.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamaruddin whose habeas corpus application is scheduled before the Shah Alam High Court on 22nd October 2008. He is also the President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)

(Malay Mail; 21st October 2008)

MIS

18 comments:

Antares said...

There are times when a big hug works better than a comment, Imtiaz - and this is one of them. Thanks for sharing this firsthand report of your
first encounter with Justice Hishamuddin Yunus, a man worthy to be called 'Your Honour'!

Anonymous said...

Imagine.
Imagine when the government of the day is not UMNO, where would you be, Mr Malik?
Imagine.
Imagine when the ISA is abolished, what would you become, Mr Malik?
Imagine.
Imagine when RPK is a politician, will you be his political adviser, Mr Malik?
I doubt so.

Anonymous said...

hope that you kick some A** tom..all the best

mei1 said...

All the BEST & let's pray that there's still a hope in our judiciary system. God bless.

peng said...

A nightmare revisited? No, if you have a fair judge presiding. There are still a few good men left in the government. May God bless them.

Umran Kadir said...

A thrilling read from start to finish. I wish you every success with RPK's habeas application!

Anonymous said...

Good luck for tmr Malik. I thought I cld make it there alas...hopefully we cld have a drink at cava again soon. J..

Anonymous said...

All the best for tomorrow's hearing - may the force be with you.
I hope there are still some brave and principled judges in Malaysia.
Regards,
CPK

Miriam said...

My prayer for you has the following words....."and enkindle in Malik the light and power of thy Divine Wisdom".

Anonymous said...

malik,

you are a good man.

as for the irrelevant judge, let him face his maker. for him, spirit is needed fervently believe me until sayonara time. does he believe in KARMA? its for him to answer.

Anonymous said...

i am not ashamed to say i shed a tear reading this. My beloved Malaysia indeed has citizens with it's best interest at heart.
I applaud u Justice Hishamuddin Yunus and to u Malik.
My prayers, nay my hearts desire is to see blessing over flowing be upon the both of u.
God Bless

Ka Ea Lim said...

Sometimes, it takes only one good man to give hope and inspiration to many others. In this case, there are two; the judge and you, Imtiaz.

Looking forward to reading more inspiring stories from you.

KE

Damansara said...

a good piece indeed!

Anonymous said...

Dear Mr Imtiaz,

You are a great inspiration to me as a young lawyer. In a time when many lawyers are self-serving (to say the least), you are prove that not all is lost. Thank you for the ray of hope.

Karen.

Anonymous said...

Dear Maliok

I have only recently started reading your blog and have posted some comments where I have felt the urge to do so. One simple reason I enjoy reading your blog is you write from the heart and that is very obvious. Another, your writing is well underpinned in law and reason.

It is heartening that we have men of Justice and Integrity in our system. And that alone will ensure that Malaysia can survive all its travails

Pratamad said...

When I read your story (a report), tear started to well in my eyes. I could feel the joy of justice being served from your words, and at the same time also feeling the sadness at the state of our judiciary.

Keep up the good work. And like you, we all have faith, that justice will always be served, either way.

(Honoured to have met you personally in Singapore!)

Damansara said...

Dear Malik,

What is your opinion on Tun Salleh’s problem? Are Ambiga and Patail ‘Delaying Justice’?

What about Anwar’s claimed that Abdullah’s refusal to call a special Parliament session amounted to the opposition being denied "constitutional legal options" to bring down the government.

Is this a case of Ends of Justice or Hiding Behind Justice?

Damansara said...

Dear Malik,

What is your opinion on Tun Salleh’s problem? Are Ambiga and Patail ‘Delaying Justice’?

What about Anwar’s claimed that Abdullah’s refusal to call a special Parliament session amounted to the opposition being denied "constitutional legal options" to bring down the government.

Is this a case of Ends of Justice or Hiding Behind Justice?