Saturday, October 25, 2008

Free RPK: The 2nd Habeas Corpus Heard


I am sorry for not having done this earlier. It has been a busy week.

As you would have already read, the hearing went on as scheduled before Justice Syed Helmy. on 22nd October 2008. The hearing went smoothly, with Justice Syed Helmy giving both sides a fair hearing. I do not think anyone in court, Marina and family included, who could have asked for more. We were given every opportunity to say what we needed to in the way we wanted to.

There were some administrative glitches that could have been exploited for benefit, but counsel for the government very graciously chose not to. With an accommodating Judge, we got over these minor humps very quickly and got straight to what needed to be done: the hearing itself.

Azhar Azizan Harun and I presented the case for RPK. Azhar (a.k.a. Art Harun of Navel Gazing) is an old friend and a well-regarded advocate. Though specializing in commercial and corporate law, he has always maintained an interest in public law. As soon as news got out that RPK had been detained, I got a call from him asking for news of developments. Once he knew that I was involved, he immediately volunteered to “carry bags” (some of you may have noticed the comment on my earlier RPK postings).

Ashok Kandiah and Neoh Hor Kee once again handled the solicitors’ aspect of the brief and, as before, from the time the detention order was issued did all that could humanly be done to get us as quickly and smoothly as possible to that hearing that morning. They, together with Amarjit Singh, J Chandra and Sreekant Pillay, helped put together the case that we presented that morning.

As I had noted in an earlier RPK posting, we were faced with one serious obstacle, judicial attitudes towards a provision in the Internal Security Act. The provision, section 8B, ousts the jurisdiction of the court to scrutinize acts done by the Minister in the exercise of discretion under the ISA except on procedural matters. There were decisions of the courts that suggested that this immunity from review applied to all cases.

If correct, then this meant that the scope of review was so narrow so as to be virtually meaningless. This would, for all purposes and intents, mean that one could not point to bad faith on the part of the Minister (acting outside the scope of his permitted powers) leaving the Minister to detain at whim. In my view this could not be correct, as this would allow for highly undesirable consequences, in particular the misuse of powers with impunity.

On this footing, Azhar and I split the arguments. I was to take the first attack.

The arguments were technical and I will not bog you down with detail. I can summarise my arguments as follows:
  • For reasons going to constitutional pre-conditions to legislating exceptional laws such as the ISA, and in particulars sections that allow for detention without trial, section 8 is unconstitutional;
  • Section 8B does not oust the jurisdiction of the court to consider whether the Minister was acting with jurisdiction or where the issuance of the order to detain was a nullity (void in law) for having been done without jurisdiction. As such, the court would have to consider whether the elements making up the state of affairs contemplated by the ISA – threat by a substantial body of persons that actions of the specified kind would be taken – were present at the time the detention order was issued as these were preliminaries to the existence of jurisdiction. Further, if it was contended that the Minister had acted mala fide (in bad faith), then the court was to consider this contention as this was an act not in accordance with the ISA itself (the law does not permit acts of such a nature) and as such not within the ambit of section 8B;
  • The Minister had acted without jurisdiction, as the preliminaries to the existence of his jurisdiction to detain did not exist. There was no threat by a substantial body of persons and RPK was had not acted nor was he threatening to act in any of the manners specified. The Minister had no jurisdiction. This contention was reinforced by the fact that the Islamic authorities had not seen it fit to charge RPK for insulting Islam. These authorities had exclusive domain over matters of administration of Islam and as such, the Minister could not have acted without fist having obtained authoritative confirmation from these authorities that RPK had insulted Islam;The grounds of his detention were incredible and as the Minister had explained himself through his grounds of detention, which were before the court, the court could not ignore this. Further, the Minister had not established that RPK published the writings on Malaysia Today or that RPK owned Malaysia Today;
  • The detention infringed RPK’s freedom to profess and practice Islam under Article 11. Though the Constitution permits the enacting of exceptional legislation that contravenes the right to life (Article 5), the right to a fair trial (Article 5), the right to free movement (Article 9) and the right to free expression, assembly and association (Article 10), it does not permit the contravening of the freedom of religion. RPK had stated in his affidavits that e write as a Muslim, guided by the Islamic principle of amar makruf nahi mungkar. As such, his writing was an expression of his faith and conscience;
Azhar then took the factual arguments on bad faith arguing that the Minister had acted for collateral purpose – to silence RPK for being a vocal critic of the Government of the day. He pointed to the pending criminal proceedings for sedition and criminal defamation and RPK' being innocent until proven guilty, and the fact that no action had been taken by RPK that could be said to constitute a threat to national security nor had he threatened to take any such action.

Counsel for the Minister argued, in essence, that the court was not permitted to scrutinize the decision to detain as this was a matter left entirely by law to the Minister, i.e. it was in his subjective discretion. Further, section 8B shielded the Minister from scrutiny, even on bad faith, and the only permissible challenges were those realting to procedure. That being the case, as long as the procedures were complied with and the Minister said that there was basis for the detention in his view, the court had no power to review.

We concluded the arguments on the 22nd itself, thanks to the Judge having cleared his schedule to accommodate us. At the conclusion of arguments, the Judge indicated that he needed to time to go through the comprehensive submissions and the law.

The Judge scheduled his decision for 7th November, the first date he could do so on. The Judge noted that this was a habeas corpus but explained that this was the earliest he could manage. This was fair in view of the seriousness of the arguments and the fact that the court has other matters before it.

MIS

18 comments:

K W Waran said...

Dear Bro' Malik,

Thank you very much for the posting so that those who could not attend court that day have an opportunity to know the details, albeit, a "summarised" one.

To say that the legal team's performance with you as the lead counsel that day was splendid and sterling in nature would be an understatement.

We, the public attendees were thrilled to bits. Even the learned honuorable judge who at times looked rather tired took in almost everything in writing and when he decided to record your final submission, word for word, I must say, many of our respective hearts were beating much faster.

Lastly , to the Team of the Finest of Legal Eagles, a Garlanded Tribute to you all.

We look forward to the 7th November 2008 with fervent hopes, prayers and earnest anticipation. See you there, Bro'. Take care.

ChengHo said...

imtiaz,

what say you on tun salleh abbas application to bar council rejected??
read rocky ..

Antares said...

Once again, I greatly appreciate your update on the proceedings - and the fact that such a brilliant and dedicated legal team are doing their best on behalf of all decent Malaysians. Here's a blast of good energy and clarity and pure inspiration to all of you - and Judge Helmy!

delcapo said...

once again... excellent job!!!
i'm honoured to have been watching u work...

___________________________
http://delcapo.wordpress.com/

art harun said...

First of all, I wish to thank you, Imtiaz, for giving me the opportunity to contibute. It was indeed an honour to be beside you arguing the case.
I must confess that I did not have any experience at all in arguing a habeas corpus although I have some experience in arguing cases and advising clients involving administrative and constitutional law issues. I was therefore initially rather mindful of the possibility that my direct involvement in the case might jeopardise the whole case!
However, having Imtiaz as my co-Counsel - well, Imtiaz was not a co-Counsel as much as hew was the lead Counsel, actually - was more than I needed to instill confidence in me and the rest of the team. His vast knowledge and experience in the relevant area of law set the tone for the strategy which we finally thought of and adopted. For this, all credit goes to Imtiaz for his wealth of knowledge and advocacy skill.
My many thanks too to the "backroom" people ie Ashok, Neoh, Amarjit, Sreekant and Chandra, who tirelessly churned out the mountains of cause papers and all the bundles of authorities etc. Our task was made all the more easier due to their efforts, diligence and workmanship.
The learned Judge was initially almost reticent I felt. But he was attentive and to me was clearly troubled and concerned at the end of the day. He asked the right questions and was taking notes at the right moment. He was even almost thankful when I'd suggested that he took a short break after Imtiaz's submissions. He was very accomodative and indeed he afforded all of us a very fair hearing, which is the least we could ask of him. For that I am also grateful to the learned Judge.
I must also say something about Senior Federal Counsel Wahab. I know him personally as he was my senior in the Uni of Malaya, where I did my first degree. He was courteous and gracious throughout the whole proceedings and that helped a lot towards smoothening the proceedings. There were some procedural issues which he could choose to exploit but did not. For that I am thankful to him. I must say that that was the most cordial proceedings I had ever had against Federal Counsels in my entire career! Wahab argued and acted with dignity and that was honourable of him.
It was indeed an honour to be of some assistance to this team, and to RPK and his family. Marina was like a Goddess, dignified and calm throughout these tumultous time. She gave me a hug outside the Court after I had submitted.
That meant more than a pay cheque to me.
Let all of us now pray for the best.

Anonymous said...

Good work, to you and the bag carriers.
And thank you for taking the trouble to educate and enlighten us non-legal eagles.
Regards,
CPK

Richard Loh said...

Malik,

As a common layman, I think you all have done a very good job. Even though the fight may be fruitless, neverless, you and your team are doing all you can to set RPK free. I am sure Marina and family are pleased with all your works.

Fight them till the end, there is always still a little bit of hope and we will pray for that little hope to happen.

May GOD be with you all and provide the strength to overcome this inhuman ISA act.

Umbrage said...

Imtiaz,
I just had a chat with Azhar and after he had regaled me with what transpired, I am cautiously optimistic. For the moment we, like the statisticians would say, have an equal chance.
Umbrage

Ka Ea Lim said...

Imtiaz, thanks for posting the updates on RPK's trial. It's a valuable piece of information for those who are so far away from this, and yet are given the benefit of having a "first hand" information through you.

I am very concern when I read the arguments presented by the counsel for government.

"Further, section 8B shielded the Minister from scrutiny, even on bad faith, and the only permissible challenges were those realting to procedure."

The emphasis here is "bad faith" and it is beyond my comprehension that there should be any legal justification whatsoever for having such provision under Section 8B; giving absolute power to the executive, even if carried out in bad faith, to implement the arrest and detention.

How can anything be justified, if carried out in bad faith? Can this be considered as a good law, or even a law for that matter, if it doesn't take into account the element of mala fide?

What can be done to challenge this?

CHIA, Chin Yau said...

Thanks for the updates. We know you guys have done your best.

For the man who was silenced, we pray for his early release.

Keep it up!

zorro said...

You were superbly brilliant!Will this go to waste considering.....and I can't afford to hold my breath longer than necessary!

Malik Imtiaz Sarwar said...

Dear all,

thanks for the kind words everyone. I believe we can change the way things work, for the benefit everyone. We have to believe that we can though. And I think we're beginning to.

I have had been asked for my views on the Tun Salleh-Bar Council issue. I a traveling at the moment but will get to it as soon as possible.

I will say however that the law is the law and if the rule lays down a requirement, it must be complied with unless the rule provides for discretion on the matter. The fact that the rule may have been interpreted in such a manner in the past (I think I may have been on the Bar Council at the time) to allow for K C Vohrah cannot be ignored. If the rule is now being read strictly, then KC Vohrah's admission must be scrutinized to see whether it can be permitted to stand. I have not had a chance to consider this but have read a view that the admission having been permitted, it must stand.

Regards
MIS

eskay said...

As a concerned Malaysian, sincerely thank all your team members for everything you do for RPK !

mei1 said...

When I read the comment from the justice last week, I had the feeling that your team stands a good chance to get the habeas corpus. No matter how, keep up the fighting spirit, just like what Liverpool did yesterday, beating Chelsea 1-0 away home. Remember, You'll Never Walk Alone!

Regarding the Tun Salleh's matter, there're quite a number of articles posted on the Bar Council website (http://malaysianbar.org.my/) which I think is very useful for a lay person like me to understand the situation, the mentioned articles are as follows:

1)Is Rocky's Bru barking up the wrong tree?
http://www.malaysianbar.org.my/bar_news/
berita_badan_peguam/
is_rocky_s_bru_barking_up_the_wrong_tree_.html
2)Malaysian Bar's Press Release: Clarification on appointment as Consultant
http://www.malaysianbar.org.my/
press_statements/
malaysian_bar_s_press_release_clarification_on_appointment_as_consultant.html
3) Salleh puzzled by decision
http://www.malaysianbar.org.my/
bar_news/berita_badan_peguam/
salleh_puzzled_by_decision.html
4) Bar-red by Council's double standards http://www.malaysianbar.org.my/
legal/general_news/
bar_red_by_council_s_double_standards.html

Martin said...

Dear Imtiaz
I had longed to show RPK support by attending one of his related trials. I was indeed elated when my efforts to attend RPK's HP hearing became a reality. I was disappointed when told that RPK would not be brought to court, but that disappointment was overcome by the privilege of watching you present your case -- you were no doubt inspiring, incisive -- incredible! I was so very keen on writing about it but was told that the summary that you gave out was "only meant for reporters"!
May God continue to give you courage and wisdom in this long journey towards justice in Bolehland.
Martin (Jalleh)

Anonymous said...

With you and the rest of RPK's legal team, he has a fighting chance for freedom. We are all watching and hoping that come Nov 7th, RPK will be reunited with his loved ones. Thank you for working so tirelessly and fearlessly for him and ultimately, for us all.

Tangerynne

Old Fart said...

Malik,

How about competence?

The ISA obviously provides all that power to the Home Minister without the slightest of contemplation that there would be any question of competence of the Home Minister when he acts on these laws.

On the same date he issued the orders for RPK's detention he obviously also issed orders for the Sin Chew Reporter as well as Teresa Kok to be detained.

The competence of these detentions need to be questioned and needs to be respondd to.

If I remember correctly he did try to deny the use of the ISA on the Sin Chew reporter. Nevertheless he allowed that excuse of the ISA having been applied in her detention persist even until after her release 16 hours later. Considering there is no provision for the involuntary detention of anyone for the purpose of providing police protection as Home Minister and the Minister in charge of the police, his comptence is once again called to question as to his knowlege and understanding of the law and as to his obligations.

Assuming the ISA laws to be competent in themselves, surely it could not have contemplated incompetence on the part of the Minister who is to uphold that law.

Is there any possibility of incompetence being shown to question the conduct and act of the Minister?

davina isaac said...

Hello there,
Could you please publish this invitation to the ISA Forum in your web blog.

Below is the info.
Thank you again.

Regards,
davina


Invitation to a Public Forum
‘ISA and Police Reform Process: What’s next after Pak Lah?’
6 November 2008, Thursday, 8.00 pm
The Selangor Chinese Assembly Hall, Jln Maharajalela, Kuala Lumpur.
Speakers: 1. YBhg Datuk Dr Denison Jayasooria, Suhakam Commissioner and former Commissioner of the Royal Commission on Police Reform.
2. YB Saari Sungip, State Assemblymen, Former ISA detainee and leader of Abolish ISA Movement.
3. YB Sivarasa Rasiah, Vice President of Parti Keadilan Rakyat, Member of Parliament and human rights activist.
4. Mr Edmond Bon Tai Soon, Chairperson of the Bar Council Human Rights Committee and Secretariat member of Suaram.
In December 2003, the Prime Minister, YAB Dato’ Seri Abdullah Ahmad Badawi, announced the formation of the Royal Commission to Enhance Operation and Management of Royal Malaysia Police, to examine the conduct and management of the Malaysian police force. He stated, “The police must be well-versed in Human Rights when discharging their duties and dealing with the public. Police brutality, poor service, corruption and other negative traits must be eradicated.”
In 2005, the Royal Commission released a report in which it made 125 recommendations to improve the police force. According to the Commission, there were numerous deficiencies in the police force’s compliance with human rights obligations as a consequence of two main factors: (1) Existence of a range of preventive legislations that restrict fundamental liberties and (2) Police abuse of the safeguards provided for human rights in prescribed laws and regulations.
Four years have passed since the Royal Commission launched its report containing recommendations to ensure the police’s accountability and adherence to human rights principles. Despite this, we continue to witness the police force’s abuse of power, arbitrary arrests and detentions. The ISA arrests of State Assemblywoman Teresa Kok, blogger Raja Petra Kamaruddin, journalist Tan Hoon Cheng and Suaram activist Cheng Lee Wee under Section 28 of ISA have raised concerns over the deterioration of human rights standards in Malaysia and serious questions on the roles of the police force and its abuse of power.
Recently, Dato’ Seri Abdullah announced his intention to resign from the Government and hand over power to his chosen successor Datuk Seri Najib Tun Razak. The question now is: Would the reforms initiated by Abdullah be continued? Furthermore, does the ISA give the police wide and arbitrary powers to undermine the rights of the people?
Through this forum, we hope to share and discuss our concerns regarding the use of the ISA and the police reform process. This forum is jointly organized by Amnesty International Malaysia, Suaram and the Human Rights Committee of the Selangor Chinese Assembly Hall.
Please contact us at 03-79552680 or email aimalaysia@aimalaysia.org (Amnesty International) or 03- 79552535 or suaram@suaram.net (Suaram) to confirm your attendance or for more information.
We look forward to seeing you at the forum!