Adapting To The Times

Adapting To The Times

Proponents of the Internal Security Act justify their viewpoint by reference to the need for law to enable the authorities to deal with threats to national security. In principle, there is nothing objectionable with that position. As I explain below, the Federal Constitution allows for the enacting of laws to that end.

The shape these laws take, however, depends on the nature of the threat that is sort to be addressed and the measures needed for that purpose. These features inform any discussion concerning the relevance, if at all, of laws that allow for detention without trial under our constitutional framework.

There is no general power in Parliament to validly enact laws that contravene the fundamental liberties guaranteed under the Constitution. That is why the Criminal Procedure Code has crystallized in the form it has, obliging the police to produce an arrested person before a magistrate within twenty-four hours of arrest. If the police want to keep that person in custody without charging him or her for a further period of time to allow for further investigation, they have to convince a magistrate of the need for this extension.

Where the offence being investigated is punishable by death or with imprisonment of more than fourteen years, the magistrate can order a further detention of up to seven days with it being open to the police to seek a further seven days thereafter. Where the offence is punishable with imprisonment of less than fourteen years, the maximum period of further detention is seven days, in stages of four and three days respectively.

The rationale is that the individual being investigated should be charged as soon as possible or be let go, the thinking being that if after that many days as is permitted the police have got no basis to charge, then continued detention is not justifiable. The individual can be rearrested subsequently if more evidence surfaces and then charged, but unless and until that occurs, he is entitled to liberty. If charged, the accused then has the benefit of all the safeguards of the criminal justice system the most important of which is a trial.

That is what the guarantee against the denial of life and liberty “save in accordance with law” means.

There is however a constitutionally entrenched exception to this general rule. Parliament can enact laws that circumvent the guarantees of liberty and associated guarantees to deal with the threat of action by a substantial body of persons that aims to destabilize the nation or undermine democracy.

The ISA was enacted using this exceptional power. The “substantial body of persons” concerned was the communist insurgent army whose actions had led to concerns about the security of the nation and its way of life. That is what made its enacting valid; it was a necessary means to disenfranchising the insurgents and preventing them from regrouping. The criminal justice system might have impeded efforts to deal with the insurgents effectively.

We tend to overlook the obvious truth that solutions must be crafted to suit the problems they are intended to solve. The ISA was designed to a particular end. It was never intended to define the upper limits of executive action where national security was concerned. It was never meant to be the yardstick.

There is no difficulty with invoking the criminal justice system to deal with individuals who are not affiliated to a larger body of persons, be they terrorists or the organizers of demonstrations or socio-political bloggers, no matter how convenient preventive detention may be.

This is not a matter of preference; it is the law.

If a crime has been committed, let the accused be tried. If no crime has been committed, then there is no basis for circumventing constitutional freedoms unless the nation itself is threatened.

For those who fear the uncertain, an anti-terror legislation will allow us to deal with actual national security concerns effectively. This law could be of a hybrid nature, applying general principles of criminal law for those acts of terrorism that do not fall within the constitutional exception but at the same time allowing for exceptional steps to be taken where the terrorism concerned does. The aim of these exceptional steps should be to deal with a clear and present danger and not to substitute criminal due process with executive whimsy. Detention periods should as such be of very limited duration, if a crime has been committed there should be a trial, and be made subject to strict judicial scrutiny. This would encourage less sloppy policing and lead to greater security.

Do we really need the ISA? With the range of more effective options available to us in this day and age, I do not think so.

(Malay Mail; 17th April 2007)

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Into The Depths

Moments in history leave their imprints on destiny. Actions translate into consequences.

I have often wondered what it is that was running through the minds of those who triggered Operasi Lalang on that fateful 27th of October 1987. They were about to trigger a chain of events that would put this nation on a collision course with its very foundations. They were about to cast the perspectives and attitudes of a generation of Malaysians who would in turn shape those of another.

Racialism, fear and loathing, supremacist beliefs; a belief in the right of might.

On October 27th, 1987, 106 persons were detained. They were mainly politicians and political activists. Their absence left a gash in our democracy through which ideals and principles were sucked out into nothingness.

In the General Election of 1986, the Opposition held 28 seats. Of these, the DAP held twenty-four seats. PAS held one.

Five DAP Members of Parliament, amongst them the then Leader of the Opposition, Mr Lim Kit Siang, the then Deputy Chairman of the party, Mr Karpal Singh, Mr Lim Guan Eng and the indomitable V David. Four DAP assemblymen were also detained and a host of civil society activists.

The opposition was emasculated.

On 28th October 1987, Lee Lam Thye attempted to move an urgent motion to debate the detentions. The speaker rejected his request, basing his decision on the Prime Minister having given notice that he was presenting a statement on the subject. This excerpt from the Hansard report of the proceedings of that day captures the essence of the Prime Ministe’s address.

Tuan Yang di-Pertua, kita semua masih ingat peristiwa 13 Mei, 1969. Tentulah tidak ada di antara kita yang suka mencetuskan rusuhan berdarah seperti itu sekali lagi. Oleh itu, sikap tidak bertanggungjawab dan kegiatan menjolok isu-isu yang sensitif sepatutnya tidak berlaku.

Walau bagaimanapun, pihak Polis yang sepanjang masa memerhati dan meneliti perkembangan politik dan lain-lain gerak-geri rakyat, mendapati bahawa ada pihak-pihak tertentu yang tidak menghargai sikap Kerajaan. Mereka sebaliknya menggunakan peluang daripada pendirian Kerajaan ini untuk memperalatkan isu-isu sensitif untuk kepentingan mereka dan dalang-dalang mereka. Mereka tidak mempedulikan kesan buruk akibat daripada sikap tidak bertanggung- jawab ini.

Tuan Yang di-Pertua, pihak Polis mendapati bahawa beberapa tokoh pemimpin parti Pembangkang dan kumpulan-kumpulan yang sebulu dengan mereka telah dengan sengaja membesar-besarkan isu yang ada kaitan dengan kaum. Pihak DAP khususnya, terlalu memainkan isu-isu perkauman Cina dan lndia secara terbuka. Mereka memberi gambaran hahawa Kerajaan menindas kaum-kaum ini. Mereka mengadakan rapat-rapat umum, mesyuarat awam, rally, demonstrasi dan lain-lain kegiatan untuk membakar hati orang-orang Cina dan lndia terhadap Kerajaan dan terhadap orang-orang Melayu.

Tuan Yang di-Pertua. pihak Polis mendapati bahawa pemimpin-pemimpin parti DAP amat gemar menggunakan isu-isu yang berbau pcrkauman untuk mendapat sokongan bagi parti mereka. Mereka bukan sahaja herlagak sebagai juara kaum Cina dan India, tetapi juga sengaja mencabar parti-parti kaum Cina dan lndia dalam Kerajaan kerana kononnya tidak memperjuangkan kepentingan kaum-kaum mereka. Dengan ini maka parti kaum Cina dan lndia dalam Kerajaan pun melenting dan cuba pula untuk melebihi parti DAP dalam ketebalan perkauman mereka.

Usaha menjadi jaguh ini meningkat apabila DAP dapat mengalahkan beberapa calon dari parti Cina dalam Barisan Nasional dalam Pilihanraya 1986. DAP sengaja mengejek parti Cina dalam Barisan Nasional sebagai "running dogs" parti UMNO. Dengan ini maka semakin bertambahlah usaha parti Cina dan India dalam Barisan Nasional untuk membuktikan bahawa mereka juga kuat dari segi perkauman bahkan lebih kuat lagi daripada DAP dan pemimpin-pemimpinnya. Berbagai isu dijadikan asas ujian tentang siapa lebih kuat perkaumannya. Beberapa daripada isu-isu ini amat sensitif termasuk soal tarian singa, soal koperasi, soal papan tanda dan iklan, soal bahasa Cina, soal Bukit Cina, soal pakaian, soal ikrar murid di sekolah, soal matapelajaran elektif di Universiti Malaya, KBSR, soal pribumi Bumiputera dan akhir- ahkir ini soal guru sekolah Cina. Satu perbuatan yang amat bahaya ialah penggunaan kuil untuk mesyuarat perkauman.

Dalam usaha-usaha yang dibuat sewaktu membincangkan isu-isu ini, banyak kata-kata kesat yang boleh ditakrif sebagai hasutan; disuarakan dengan lantang. Reaksi daripada orang Melayu juga meningkat kerana sebab-sebab yang tersebut sehingga ke peringkat yang melampaui batas. Semua ini dilaporkan oleh akhbar- akhbar dan majalah-majalah dan media massa ini juga semakin berani…

The Prime Minister’s address received approval from all the Barisan Nasional Members of Parliament present. Not one of those MP’s expressed concern.

The stage having been set for greater executive control, and taking advantage of a weakened opposition and a media lock down, laws were enacted to stifle expression. Amongst them was the constitutional amendment to Article 121(1) of the Federal Constitution that suborned the Judiciary to Parliament, the jurisdiction of the former being a matter that from that point on became a matter of federal law. On the heels of that amendment, came the amendments to the ISA that precluded judicial review. The Printing Presses and Publications Act was amended to vest a subjective discretion in the Minister to suspend or shut down publications. The Police Act was amended to enhance the power of the police to regulate public assemblies.

The Judiciary was assaulted, a new brand of justice given life to. Democracy was taken hostage.

All of this while the leadership of the Opposition was in Kemunting for conduct that was said to be wholly destabilizing of the nation. None of those detained were ever charged for any crime. Some of them are still in Parliament or serving the nation in other capacities.

The message that the Mahathir Administration sent in 1987 has been the single biggest obstacle to developing a sustainable and inclusive foundation for this nation. We still suffer its familiar strains. We still struggle against fear.

Intimidation can never be a tool for nation building; it carries the imprimatur of autocracies. Unity can never be decreed, it is a heartfelt condition.

Malaysia can only be one when this government recognizes that the chain of consequences that emanated from that day in October, 1987 have us all in a stranglehold; its weight threatens to pull us down into the depths of oblivion.

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Finishing Point

Finishing Point

The Internal Security Act has no place in the modern society that Malaysia is. It was designed for a very different time and purpose. As Tun Abdul Razak emphasized in Parliament in 1960 when questioned by a very concerned Opposition as to the purpose of the then pending bill, it was intended only to address the threat to democracy that the Communist insurgency was.

As Malaysians learnt the hard way, it was used for more than that. It became the weapon of choice of politicians who were not averse to prioritizing their personal interests over those of the nation.

The populist gesture of releasing detainees by newly minted Prime Ministers underscores this point. Prime Ministers not having the prerogatives of Kings, there is no basis for benevolent munificence on their part. They are, like the rest of us, expected to act according to the law. The release of detainees is as such intended to reflect a departure from the policy positions of the previous administration and in this, the ISA invoked as a symbol of wrong to showcase a willingness to embrace what is right. The gesture as such proves the injustice that the ISA is.

In fairness, the gesture this time has come with a twist, the promise of a review. Though it is not clear what this means or even that it will occur, the Prime Minister must be given the benefit of the doubt. His concession has vindicated the movement against the continued existence and use of the statute. It also presents a useful opportunity to consider what it is that must be done and why it should be.

There have been numerous objective and careful studies conducted on the ISA by various interested parties. All of these have pointed to a need to review the law, some even going so far as to suggest a repeal of the statute. The essential point made is that the ISA is not consistent with guarantees of civil liberties under Malaysian and international law. The Government has consistently disregarded these suggestions and in justifying itself has pointed to the courts having validated the ISA and actions taken under it, and the need for anti-terror legislation.

Judicial decisions of the apex court have however been formulaic and shaped by an uninspiring view of liberty, more so since 1989 when judicial review was precluded by way of an amendment to the ISA. The quality of some of these decisions is also suspect, the conclusions drawn questionable.

For a successful review, a new approach must as such be adopted. This must be grounded on an acceptance of the immutable truth that our civil liberties are guaranteed in the widest sense and that government must be in accordance wit the Rule of Law.

The power to enact laws that impinge on these liberties can only be used sparingly and in a very narrow compass. Actions taken under these laws must be subjected to strict judicial scrutiny. Terrorism can be dealt with effectively without undue compromise of freedoms; societies across the world are doing just that using appropriately crafted anti-terror laws.

There is no point to a review if the Government wishes to preserve an unfettered power to detain at will. This must be the starting point of any discussion on the subject. If accepted, it will also be the finishing point: the ISA must be repealed.

(Malay Mail; 10th April 2009)

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(Disquiet in the Malay Mail is now published on Fridays)

Free RPK: The Appeal

As you are aware, the Home Minister appealed the decision of Justice Syed Helmy. The appeal is scheduled for hearing at the Federal Court in Putrajaya on 11th February 2008, 9.00 am. We had asked for a panel of five or seven judges (as opposed to the usual three) in view of the legal significance of the issues involved. Our request was refused and the appeal will presumably be determined by a panel made up of three judges.

It is the Home Minister's appeal and as such, the Government will have to convince the court that the High Court erred in law or fact. Counsel for Raja Petra will have the task of defending the correctness of the decision.

MIS

Keeping The Faith

Keeping The Faith

Over the weekend, the blogosphere was filled to the brim with posts and comments concerning Justice Syed Ahmad Helmy’s decision to release Raja Petra.

Many expressed surprise at the Judge having had the fortitude to rule as he did, going against the grain not being the easiest of options. Some were unfeelingly dismissive of the decision and its significance to Petra and his family, and to society as a whole. One of the theories advanced was that the decision to release Petra was engineered by Prime Minister Abdullah Badawi as part of a campaign of political maneuvering against Deputy Prime Minister Najib Razak. Others cynically suggested that it was typical of the lawyers involved, myself included, to have made self-servingly positive statements concerning the Judge and the decision as we had won the case.

These comments made me wonder. Have we really been so thoroughly wrung that all hope and optimism have been bled from us? Are we so broken that we are incapable of appreciating the tiny and not so tiny miracles that happen in our lives every day?

Last Friday, as the first sob of joy escaped captivity in a courtroom that had been stilled by uncertainty, as the first tears of redemption rolled down cheeks that had been numbed by countless disappointments, I was reminded again that it is our collective faith in what is right that has consistently forged the way forward. As the cheers erupted from the many Malaysian throats present, and the Judge attempted to restore order, I understood that as our ties together as a community have strengthened so too has that faith. I saw, as Alice Walker pointed out recently to Barack Obama, it is we who we have been waiting for.

It does not matter what those who scoff say, justice was done last Friday.

No matter what we call it or how we dress it up, detention without trial is cruel. Stripped of everything, a human being has only his or her dignity and conscience. It is to these most fundamental of elements that the right to fair trial and the presumption of innocence speak. It is these elements that preventive detention aims to destroy. They are torn apart in the same way that the lives of those detained and their families are.

The due process of law ensures that the number of people who get shut away erroneously is small. A person charged with a crime in this country has at least two tiers of appeal. His conviction would have been scrutinized at least three times by several judges. A person detained without trial is detained with the stroke of a pen wielded by a Minister who is presumed to be objective enough to do what he needs to do in a way that ensures there is no possibility of error.

Where is justice? If the reasoning of the Minister is to be accepted, it does not enter the picture.

The Minister contends that detentions are a matter left by the law entirely to his subjective discretion. This means, he reasons, if he decides that an individual is a threat to national security, a court has no option but to accept this as a truth. This being the case, there is no need for the Minister’s conclusion to be justified. Extrapolating this analysis, the Minister is not required to argue that the justice of the case favours continued detention without trial. Justice is as such not a feature of the analysis and injustice an irrelevant consideration.

The Judge obviously felt otherwise. His observation, made in the course of his reasoning, that the law could not be understood as empowering the Minister to arbitrarily detain individuals for reasons that had nothing to do with the statute such as, for instance, simply having red hair, was illuminating.

Was his reasoning correct? I would like to think so. The Judge merely applied the law as framed by the legislature and in doing so gave expression to the intention of the drafters of the law: limiting preventive detention to the kind of exceptional “terror” situations described. The Federal Court may however take a different view, just as it may of the points of submission we made that the Judge disagreed with. We will get to argue these again if an appeal is lodged.

Was I happy that the Judge decided the way he did? I would have been foolish not to be, not least for Petra being reunited with his family. Do I think positively of this Judge? Most certainly for having shown me that it is not audacious for any of us to hope as we do. Would I have been disappointed if we lost? I would have but far less than if the Judge had not given us the excellent hearing he did. As we left court on the day we presented arguments, all of us understood that we had had the hearing that all of us wanted: a fair one.

And to those who suggest that the Judge was influenced, I say this. You do a disservice to yourself and to this nation. Had you been in court, you would have seen as we did a Judge keeping the faith.

(Malik Imtiaz Sarwar was counsel to Raja Petra Kamarudin. He is the current President of the National Human Rights Society and blogs at www.malikimtiaz.blogspot.com)

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Free RPK: Habeas Granted

We won.

Decision handed down today by Syed Helmy J. Habeas corpus granted, RPK to be released forthwith. He is to be produced before the Shah Alam High Court by 4 pm today to allow the Court to direct the release.

Credit to the Judge, who was fair and judicious in his approach (he disagreed with our argument that section 8 is unconstitutional), the team of lawyers who put their heart and soul into the hearing and our opponents, Tuan Wahab and Tuan Dusuki, who were professional in their outlook and approach.

MIS

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

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

Let Us Not Forget

Let Us Not Forget

This Hari Raya, sixty four individuals will be prevented from spending time with families and loved ones the way they rest us of will. What stops them from doing this is not a term of imprisonment, they have not been charged or convicted or any crime, nor incapacity, they are as capable as you and I. Detained under the Internal Security Act in Kemunting, the barrier that lies between them and the rest of us is the judgment of one man, the Home Affairs Minister.

As a young boy, I used to read ‘2000AD’. Through this I came to know of Judge Dredd and how he and his fellow police officers were ‘Judge, Jury and Executioner’. And even though the guns, motorbikes, violence and women in leather were really my focus, an understanding of why the rules had to be suspended in that comic-strip world did filter through. The situation was extreme; these enforcers were the last bastions against a world of total chaos. They were the law because the situation demanded it.

The justifications the Government offers for its continued use of the ISA are strikingly similar. We have been told, in one form or the other, that those detained are threats to national security. We are urged to understand that there are compelling reasons that make it a matter of critical importance that they be detained without trial. Were they left free to work their schemes through to completion, it is said, the nation would be in grave danger.

As much as the current Home Affairs Minister may think he is Judge Dredd (tread with caution, the image of the Minister in leather, zips and boots is not for the faint hearted), he should perhaps appreciate more fully that Malaysia is not facing the kind of apocalyptic prospect that the ISA was designed for. The extreme gravity and urgency warranting summary detentions is conspicuously absent. We are a nation at peace; armed insurrections are a thing of a distant past. We would not be plunged into chaos, democracy destroyed, if we stopped to smell the roses, or try those detained in court for that matter.

Circumstances are such that we are left with little choice but to doubt the legitimacy of detentions under the ISA.

How are we to believe that those detained were in fact the serious threats they were supposed to have been when so many of them had gone on to serve the Government in one way or the other? Dato’ Seri Anwar Ibrahim was detained in 1974 and kept in detention for some twenty months. He went on to serve the nation as Education Minister, Finance Minister and, ultimately Deputy Prime Minister. Datuk Dr Maximus Ongkili, our current Minister of Science, Technology and Innovation was also detained for some two months in 1991. They are just two of numerous instances.

How are we not to doubt the bona fides of detentions when the ISA was amended in 1989 to put the Minister’s decision to detain beyond the reach of the law. How else is one to characterize restricting the scope of review to merely matters of procedure? Scrutinizing detention orders to see whether the Minister dotted his i’s and crossed his t’s while he thumbs his nose at you from behind his legislative barricade is not a process that inspires confidence.

How are we to trust in the sincerity of explanations when though our current Prime Minister declared in 1987 that, “Laws such as the Internal Security Act have no place in modern Malaysia. It is a draconian and barbaric law.” he did an about face in 2003, saying instead, "We have never misused the Internal Security Act. All those detained under the Internal Security Act are proven threats to society”. The irreconcilable positions reveal just how far politics rules the day. That a significant number of those detained through the years have stood in the way of the Government’s political interests only goes to reinforce this impression.

Sadly though, what I have said here is not novel. Many before me have expressed the same sentiment, their pleas having fallen on ears deafened by other priorities it would seem. This has been aided in part by the way in which the issue has consistently been permitted to slip back to the periphery after the initial flurry of excitement and expressions of disbelief that mark the then most recent round of detentions. The issue lies there, in its dark corner, forgotten like those who have been detained; out of sight, out mind.

In allowing for this we have given comfort to the Government, indicating to it that as much as we may have disagreed, it is not a matter of great importance to us. We are as much to blame as those who put the detainees away.

Eid is a time for reflection and introspection; it is a time for resolve. This year as we celebrate and give thanks, perhaps we could pause to remind ourselves how fortunate we are for not having been forgotten, for being able to reach out to touch those who matter to us. Perhaps we could take a moment to see that we are really all that those who slowly fade away under the ISA have.

Let us remember them and the injustice that they have been made to suffer, let us not let others forget.

Eid Mubarak.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the ISA on 12.09.2008. He is also the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 30th September 2008)

MIS

Free RPK: 2nd Habeas

The application for habeas corpus directed at the Minister of Home Affairs was filed this morning. This challenges the validity of the order issued by the Minister on the evening of 22nd September 2008. As indicated earlier, the scope of review has been limited by the ISA which, by way of a provision which lawyers refer to as an 'ouster clause', excludes the jurisdiction of the court to scrutinize the order except on matters of procedure. The team however feels that we nonetheless have a strong case to argue.

No date has been fixed for the hearing as yet. We expect to know only after Hari Raya.

The first habeas corpus application is still pending. The judge has to make a decision whether to strike it out for being academic. As we see it, it is not as the detention order issued by the Minister was based on the recommendations of the police. The order issued by the Minister flowing from the earlier detention by the police, we take the view that the validity of the earlier detention is of relevance to the question of whether RPK is currently being legitimately detained. This is to be argued further on 28th October 2008.

MIS

RPK, ISA And The Rest Of Us

Malaysiakini reports that RPK has been detained by the police under the ISA. At the time of publication, the RPK was still at his house with police officers.

The news has spread fast. With it are concerns that a wider 1987 type crackdown is going to happen or that even worse, there is going to be chaos and racial violence.

We must remain calm. Reactionary behaviour and fear mongering is not going to make things any more sensible or easier. Things will unfold as they have to.

The Government must also do its part and explain clearly how RPK is a threat to national security and why he has been detained. He had presented himself everytime he was asked to at police stations and in court. He has been charged, has not attempted to flee the jurisdiction and has indicated his desire to defend himself in court. Access to Malaysia Today has been permitted. And though four police reports have recently been lodged against him by agencies linked to the Government, a consideration of those police reports in the bigger picture would reveal the unreasonableness of his being detained on the basis of what has been alleged in those reports. The Government must make the basis of its decision clear and why it is RPK cannot be tried in an open court.

And for the rest of us, let us stand united and firm in our belief in a better Malaysia.

MIS

Suspicion Of Tyranny

"I realise that the police have a difficult duty to perform to maintain the public peace and security. They should by all means exercise their powers under the law but in exercising these extra-ordinary powers of detention without trial, they should be careful not to raise in the minds of the public any suspicion of tyranny."

The late Justice Harun Hashim (as he then was) in IGP & Anor v Lee Kim Hong [1979] 2 MLJ 291


MIS

Give Ahmad Ismail A Break, Will You?

I think we should leave Ahmad Ismail and his merry men to do what it is they do best; reinforce the choices voters made on March 8th when they decided to hand over Penang to the Pakatan Rakyat.

Look at it this way. Mustafa K Anuar’s incisive blog-post on the subject (“The Sorry state of apologies in Malaysia”) points to the possibility of more fuss than necessary being made over the issue to justify more aggressive action. This is a view that others share (see, for instance Malaysia Waves, "Ahmad Ismail Reciting Racial "Historical Fact", but for What?").

As we all know, there are those who fervently believe that there is great political opportunity and advantage in race and religion. The threat of racial unrest is a tried and tested method for the deployment of the Internal Security Act. It would appear, judging by Minister Syed Hamid’s comments in the media about the police reports lodged against Raja Petra by several Islamic agencies and departments, the authorities are already exploring the possibility of silencing the seemingly unstoppable Raja Petra on this basis (see “Syed Hamid: ISA can be used against Raja Petra"; Malaysiakini; 6 Sept 2008).

It would not be unreasonable to think that in as much as the Barisan Nasional, and in particular UMNO, may be publicly ridiculing the idea of the Pakatan Rakyat being in a position to form a government by September 16th, or at all for that matter, its less public view of the matter is one fraught with anxiety at the possibility, if not probability. The mind boggles at the possible impact of a new government, in particular on the personal interests of individuals whose actions may have been less than above board. The potential take over is as such no longer merely a matter of political survival for some. To them, it is a matter of survival, pure and simple.

All this points to the real possibility of a desire to take more extreme measures. Desperate times, after all, require desperate measures.

For this reason, it would be prudent to employ restraint in the way we react to the entire issue. That Ahmad Ismail was inelegant in the way he made his point and that he caused offence is beyond dispute. He did and if the media reported him correctly (and this seems to have been the case, why else would the Deputy Prime Minister offered an apology), what he said smacks of racism. But then, a lot of other people make these kinds of statements all the time. That Ahmad Ismail is someone senior in UMNO does not make his statement any more exceptional as the sentiment he expressed is of the kind that we have sadly come to expect from UMNO officials.

The fact that his statement has afforded a political opportunity to those in whose interests UMNO bashing lie should not make it exceptional as well. The bigger picture demands that we view it so and not distract ourselves from what needs to be done.

The objective is to democratize Malaysia. There is a stronger possibility of this happening if a new government is formed. Reactionary behaviour will allow the powers that be to set in place obstacles to that process by validating aggressive reprisal.

We do not want that. We do not need it.

And, after all, if Ahmad Ismail feels the need to throw his weight behind the transformation of Malaysia by making the Barisan Nasional that much more unattractive, should he not be getting our praise and gratitude? Give the guy a break.

MIS

The Calm Before The Storm

The Calm Before The Storm

It seems like the chess game Anwar Ibrahim is playing with the nation, or is it poker, is reaching end-game. His apparent revelation of MCA members of parliament imminently crossing the floor has upped the ante and possibly set the stage. What this means for us all is the subject of much debate. Some are uncertain about whether a change of government at this stage is a good thing while others are uncertain as to whether UMNO will allow for a change and the lengths it will go to stop it.

There are whispers of it being possible that the incumbents might resort to triggering Emergency powers, and the suspension of the rule of law that entails, to defeat the possibility of the Pakatan Rakyat taking over government. There are concerns that the Internal Security Act might be invoked, detentions of key figures would greatly assist in undermining efforts to that end.

In all of this, civil unrest in whatever form, from peaceable demonstrations that turn unruly or even violent to endemic and seeming unstoppable violent crimes, could become the convenient excuse for the taking of measures.

It seems like a radical step but then Malaysians are no strangers to extreme strategic plays in aid of power grabbing or simply staying in power. Though we have been virtually desensitized through over-exposure to the socio-political significance of the mass ISA detentions under Operasi Lalang in 1987 and the sacking of Tun Salleh Abas in 1988, these events remain significant not merely for their historical value. In providing an insight into the range of Dr Mahathir’s tactical playbook, they also shed light on the manner in which senior UMNO personalities might approach challenges in the present day.

Dr Mahathir’s impact on the evolution of UMNO cannot be downplayed, more so for the iron grip he had on the party. He was indisputably UMNO during his tenure and it is more probable than not that we will continue to see glimmers of his trademark style of crisis management in the time it will take for UMNO to be free from his influence. The continued detention of the HINDRAF 5 despite the manifest lack of any credible factual basis is just one example. The sacrificing of the lives of those detained and their families to secure a perceived political benefit is classic Dr Mahathir.

That being said, we also have to recognize that much has changed since the former premier’s hey day. In particular, while previous crises within UMNO took place in a context that was politically secure for the party and the Barisan Nasional, the opposition posed no threat. That is however not the case any longer in the same way that UMNO and the Barisan can no longer take for granted the support of a significant portion of the electorate. Consequently, those within UMNO who aspire to greater heights must divide their attention between the not easily reconciled aims of regaining the confidence of rakyat and successful internal politicking. Waging war against the nation, either through Emergency rule or repressive measures is certainly not going to endear UMNO any further in as much as it may win some support within the party.

Whatever the case, Malaysians must see that they are now pawns in a political game being played by both sides of the divide. This does not mean that we should take things lying down. For though we may have little say in whether Pakatan does attempt to take government or whether the Barisan adopts a reactionary stance, we do have the right and the means to make our displeasure known. More significantly, we have the ability to defeat the machinations of any party who acts adversely to our interests as long as we remain united and remain focused on what it is we all need as a nation.

Circumstances make the need for a calm response from the rakyat even more pressing. The drastic fuel price hikes and resultant unhappiness amongst the rakyat have presented a useful political opportunity to both the Pakatan ad the Barisan, albeit in different ways. Demonstrations and mass assemblies are being planned by a civil society more awake to the power of such events. These events are convenient staging grounds for political campaigns, a state of affairs that the Pakatan has been quick to take advantage of and which creates a potentially explosive tension that could be manipulated by those who wish to.

This does not mean we should compromise. If anything, we must strengthen our resolve to stand by principle. It is however vital that we remain vigilant and anticipate the possibility of such manipulation. It does not take much instigation to transform peaceable assemblies into the kind of public disturbances or even civil unrest that will justify intervention in one form or the other.

(Malay Mail; 17th June 2008)

MIS

Kamunting ISA Vigil Without Incident

Just spoke to Haris Ibrahim. FRU was present but nothing untoward happened. The event was allowed to proceed and wrapped up by 9.

MIS

HINDRAF 5: ISA Detentions Side-Step Justice System

What need was there to detain the HINDRAF five under the Internal Security Act?

The ISA is a draconian law. It has no place in the modern and mature society that Malaysia is. It has been condemned internationally and locally. The manner in which the ISA allows for subjective detention without trial is violative of the fundamental liberties of persons detained in a manner that cannot be justified in any circumstance.

The Government’s position is that the five are threats to national security and public order and that they are a menace to the public for having lied about the Government in accusing it of ethnic cleansing, for having organized illegal assemblies and for having had links with terrorist groups (‘5 Hindraf leaders a threat to national security’, NST, 14.12.2007).

These accusations reveal the possibility of the five having engaged in criminal activity. Three of the five have already been charged with sedition (though I wish to stress that I do not view the offence of sedition as being constitutional). Chapter VIA of the Penal Code was recently added to allow for the prosecution of persons involved in terrorist activity. Appropriate arguments could be mounted to oppose bail to ensure that pending the trial of the five, they would be prevented from fleeing the jurisdiction and, arguably, from repeating the offensive activity.

We cannot lose sight of the fact that no matter how heinous the activity complained of may appear, accusations remain mere accusations until and unless they are made out in a court of law. Every person is presumed innocent until proven guilty in a court of law.

The detentions are therefore clearly preemptive, allowing for a side-stepping of a criminal justice system that is aimed at ensuring that no person is denied his constitutionally guaranteed right to liberty save where it is denied through an exercise of judicial scrutiny replete with inbuilt safeguards aimed at ensuring that an innocent person is not mistakenly imprisoned.

The Government would have us believe that rather than preemptive, the detentions are preventive. The crucial question is on whose account. The Government can hardly be considered to be objective bearing in mind the cause HINDRAF espouses. We have heard much of the Government having taken grave exception to the positions HINDRAF has taken. In the very public fanfare surrounding the official reaction to HINDRAF, we have been made to understand that the Prime Minister is angry at the suggestion of ethnic cleansing. He is outraged at the lies that he feels HINDRAF has allegedly told of his Government ('Governmnent doing its best for Indians', NST, 02.12.2007; 'PM: They want to destroy the country', Malaysiakini, 13.12.2007). He is also, by virtue of being the Internal Security Minister, the authority responsible for the issuance of detention orders.

Anger is not sound basis for objective decision-making. It is further not a proper legal basis for the issuance of a detention order.

In the same vein, political expediency cannot be allowed to become a factor, more so where the detentions are a ‘face saving’ measure. And as much as the Government may deny this to be the case, the truth is that the Government is acting in its own cause. This is as compelling a reason as any to not invoke the subjective processes of the ISA.

The Prime Minister has publicly declared that the authorities have evidence of the alleged terrorist links HINDRAF is said to have ('Close watch on Hindraf', The Star, 08.12.2007). Minister Nazri has also publicly declared the existence of such links ('Link is with Tamil Tigers and India's Rss, says Nazri', The Star, 08.12.2007). If this is the case, then there is more reason for the five or any number of other persons involved to be appropriately charged and prosecuted.

The detention of the HINDRAF 5 may also have the retrogressive effect of, by reason of its ‘chilling’ effect, stifling genuine civil society efforts aimed at promoting discourse on the path this nation must take to ensure sustainable and inclusive development. This would include efforts by various interest groups aimed at addressing the underlying grievances that have caused citizens to peaceably assemble these past five weeks or so. It would be regrettable if these groups, in particular that part of the Indian community that, no matter the rhetoric and the politics of the situation, have felt represented in a way that they have not before were to take from the detentions a signal that the Government does not consider their situation and grievances as being of sufficient importance.

MIS

Malik Hussein And The Independence Of The Judiciary

The Deputy Internal Security Minister, Datuk Fu Ah Kiow, is wrong. The decision of Mr Justice Hishamudin Yunus in the Malik Hussein suit against the Government for his wrongful detention and torture under the Internal Security Act (ISA) is not testament to the judiciary being independent (see ‘Decision Shows Judiciary Independent’, The Star, 21.10.2007). To the contrary, it is concrete evidence of there being basis for serious concern about the Judiciary and its independence.

The judgment has been declared a landmark judgment simply because the Government lost. When one considers the case brought by Malik Hussein, it would be difficult to see how any judge could have ruled otherwise. This is not to say that the judgment is not exceptional. It is for the fact that it is higly unlikely that many a judge would have ruled against the Government the way Justice Hishamudin did. The judgment is a testament to the independence and integrity of Justice Hishamudin, and his unwavering commitment to the rule of law.

In May 2001, Justice Hisahmudin ordered the release of Reformasi activists, Abdul Ghani Haroon and N Gobalakrishnan from detention under the ISA. They had been detained along with Ezam Mohd Noor, Raja Petra and 6 others. His judgment, which I had occasion to describe then as a ‘pioneering judgment’, was a tribute to constitutionalism and the protection of the individual from arbitrary acts of the Executive. The habeas corpus application for Ezam Mohd Noor and 5 of the others came up before Justice Augustine Paul (then in the High Court). The same grounds were advanced in support with Sivarasa leading the team there, as he had for the Ghani Haroon/Gobalakrishnan application. Justice Paul dismissed the application and held that the detentions were lawful (see here for commentary).

The day Justice Hishamudin declared the detention of Ghani Haroon and Gobalakrishnan, he also made a ground-breaking order restraining the police from re-arresting Ghani Haroon and Gobalakrishnan for a period of 24 hours.

A very short while later, Justice Hishamudin was quite suddenly transferred to the Civil Division of the Kuala Lumpur High Court. By coincidence or otherwise, he was not able to hear any further habeas corpus applications. He however went on to deliver several other very important decisions including the one in which he, correctly in my view, declared the Federal Court judgment in the notorious and highly controversial Ayer Molek case (see here for background) to be unconstitutional. Along the way, he also delivered judgment in favour of Anwar Ibrahim in the defamation case brought by Anwar against Khalid Jafri and also presided over the assault claim brought by Anwar against the Government and the former Inspector General of Police, Tan Sri Rahim Noor (see 'A Judge of the big events', The Star, 20.10.2007)

I have the highest regard and the deepest admiration for this man of principle. I moved the Court for the order suspending the re-arrest Ghani Haroon and Gobalakrishnan. Justice Hishamudin’s sense of fair play and justice came to the fore that day as he recognized that a re-arrest would be inhumane. It was a defining moment, and it shaped my understanding of how far the interests of justice could be advanced with a just man on the bench.

He embodies all the qualities that a Judge should have. His humility, patience and judicious temperament are well known at the Bar as is his willingness to learn from the lawyers appearing before him.

Which takes me to my point. With all these qualities and more, why is Justice Hishamudin still a High Court judge? He was elevated to the High Court bench in 1995. He has an excellent track record. Judges elevated after him have made it to the Federal Court, a court in which Justice Hishmudin should be sitting.

Perhaps it is these very qualities, cherished by the Bar, that has kept Justice Hishamudin in the High Court.

So, is the judgment a testament to the independence of the Judiciary? I do not think so. It is a testament to how unacceptable the current way in which Judges are elevated and promoted is. It is a testament to the challenges faced by those judges who have had the fortitude to act in accordance with the law and their judicial conscience in hard cases, challenges that, if there truly was judicial independence, would be non-existent.

For those of you who have not signed the People’s Parliament Petition – Save The Judiciary – please do so. The Judges need us as much as we need them. E-mail your name and IC number to savethejudiciary@gmail.com (to view the petition, go here).

MIS