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