Statement: MCLM

It is with regret that I announce my disassociation from the Malaysian Civil Liberties Movement, otherwise known as MCLM.

Though I have at no point in time been a member of MCLM, I had committed to working with the movement to further the reform agenda.

For the sake of clarity, I note here that at all times my agreement to stand as an independent candidate hinged on my being satisfied that there was cause for it. In this I firmly believed, and still do, that the Pakatan Rakyat was pivotal in any campaign for reform, though it was not necessarily the only actor of relevance. In that light, I had resolved to stand only where my doing so would not result in a three-corner fight or where it was strictly necessary to do so.

Much has occurred since the announcement of the initiative. For one, the Pakatan Rakyat appeared to commit to a sustained effort to identify and field quality candidates. For another, Raja Petra Kamaruddin felt it necessary to state his personal views as he did, in an interview with TV3 last year and recently in interviews published in the New Straits Times and the Utusan Malaysia.

I will not delve into the matters spoken of save to say that they cast a less than positive light on the MCLM in so far as its commitment to principle is concerned. Furthermore, I do not share his views.

As I understand things those views were entirely personal to him and are not the views of the MCLM. Raja Petra had however allowed the impression that he spoke on behalf of MCLM and in his capacity as the chairman of the movement. That is regrettable as it is an impression that has undermined the credibility of the MCLM and its efforts. It has also undermined the tremendous efforts of a number of highly committed and selfless individuals in their untiring efforts to develop various civil society initiatives under the banner of MCLM.

In having done what he did, as well intentioned as he may have been, Raja Petra has seriously undermined the cause. It is my belief that no one person is larger than the cause.

It is for this reason that I must disassociate from the movement and withdraw from the independent candidate initiative. I have discussed the matter with Mr Sreekant Pillai who has asked me to state that he shares my views and is similarly dissociating.

I wish to state that my decisions to remain independent of any political parties and to stand as a candidate were mine and mine alone. It has been some years since Raja Petra and I have spoken and he has not in any way influenced any of my decisions.

Malik Imtiaz Sarwar

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)

MIS

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

Free RPK: 2nd Habeas (Update)

The second habeas corpus application is scheduled to be heard at 9.00 am on 22nd October 2008 at the Shah Alam High Court before Justice Syed Ahmad Helmy bin Syed Ahmad.

The Government Man

The Government Man

Allow me to hypothesize with you this week.

Let us, for arguments sake, say that those detained under the ISA are treated in a manner that leaves much to be desired. Assume that they are subjected to tactics of intimidation and coercion, either through interrogation or carrot-and-stick strategies that leave them mentally traumatized. At the whim of those who are in charge of them, they could be kept in solitary confinement for prolonged periods, denied visitation rights, be given food that could not in any way (and I do not mean any disrespect to the egg or those who eat it) be described as wholesome or nutritious or given amounts so meager that health and strength are affected. As a consequence, those detained are suffering.

Would that be torture? For those of you who say ‘no’, would it instead amount to cruel or inhuman or degrading treatment? For those of you who still say ‘no’, what if I were to add that those detained have not been found guilty of any crime and, in fact, those who have been and are serving prison terms, are treated better? Would it make a difference?

A theorist would have answered that the treatment described would by any standard have amounted to torture or cruel, inhuman and degrading treatment. This would have been reinforced by his (or her) belief that the detention was unlawful for having been occasioned without due process.

I share that view; in the presence of such factors it could be reasonably concluded that detainees are being subjected to some form of cruel, inhuman or degrading treatment, if not outright torture. My view, like that of the theorist, would be supported by a number of international human rights instruments including the Convention Against Torture and the International Covenant on Civil and Political Rights. These instruments and commentary collectively say that subjecting a detainee to intense mental stress, through sleep deprivation or prolonged solitary confinement or food that was inedible or lacking in nutritional value, is arguably torture or cruel, inhuman or degrading treatment.

On the other hand, a Malaysian diplomat or administrator, the hypothetical Government Man, would in all probability answer that there is no question of the treatment being torture or anything else offensive. How could it be, he would ask, when there is no law in this country that says these things amount to torture? After all, he might add with a conspiratorial wink, the Federal Constitution does not say that these things could not be done, just as it does not mention democracy.

Trying to argue the point further, one might point to the fact that Malaysia is a member of the United Nations Human Rights Council. In this capacity, Malaysia sits at the core of the international human rights system. Surely, by virtue of its appointment as such, Malaysia is morally bound to live up to the expectations of the international community?

The government representative might give this some thought, or pretend to, and then, with a sigh of regret, say that Malaysia has not ratified any of the international treaties that proscribe torture or cruel, inhuman or degrading treatment. And, he might laughingly add that if one wanted to consider international expectations, why not take into account the kind of things that the United States has done in Guantanamo Bay and Abu Ghraib?

Saving the best for last, one could then point to the Universal Declaration of Human Rights, which also prohibits this kind of treatment. Malaysia has adopted and re-adopted the UDHR in one form or the other so many times over the years that it must have a bearing.

Shrugging, he would say somewhat condescendingly that the declaration is just that, a declaration. It has no binding effect. For that, one needs to ratify a treaty and, as has been explained, Malaysia has not ratified any such treaty. That the role of the UDHR has evolved over time and that in having become a cornerstone of the human rights system, it has gone far beyond being merely a statement of aspirations would not appear to strike the Government Man as a factor worth troubling over.

Much has been said about Guantanamo Bay and Abu Gharib. Questions have been asked as to how the United States, a party to the CCPR and the Torture Convention, could have allowed for this. Some with influence have argued that the treaties only apply to the “territory” of the States. Such sophistry is a hallmark of the political underpinnings of the human rights system, a tried and tested way for states to avoid playing by the universal rules.

Malaysia is no exception. When inconvenient, it has rejected the United Nations processes, in particular its human rights system. Over the years, we have heard of how we have distinct values of our own because we are Asian or that as a Muslim country, the governing paradigm is the syariah, in response to queries as to why international norms are not being met. These responses have bordered on the ridiculous; these alternative value systems do not lend themselves to cruelty and injustice any more than any other system does.

The refusal by the Government of Malaysia to ratify any of the major human rights treaties, in particular the Torture Convention and the CCPR, cannot be justified. The only inference that can be drawn is that the Government of Malaysia does not want to be constrained by these instruments.

We do not need the Government Man to tell us why.

(Malik Imtiaz Sarwar is counsel to Raja Petra Kamarudin who was detained under the Internal Security Act on 12th September 2008. He is the President of the National Human Rights Society and blogs as ‘Disquiet’ at www.malikimtiaz.blogspot.com)

(Malay Mail; 7th 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

Free RPK: It's Not Over

Let me first apologise to you for not having given you an update yesterday. It was a trying day, the culmination of a period of work and stress that began the day RPK was detained. Not just for me but for the other members of the team, in particular Ashok Kandiah and Neoh Hor Kee.

You would have read of how the application was originally fixed for the 26th of September. It was through the enormous efforts of both these lawyers that the hearing was brought forward as it was. It was also through their efforts that the necessary court papers and affidavits (statements on oath) by RPK were obtained as quickly as they were. It was primarily due to their efforts that when, as lawyers say, I got up on my hind-feet in court yesterday, we were ready to give it the best shot we could. I believe that the case we would have mounted for RPK would have been virtually unassailable.

But out attempts were impeded.

I say impeded because at this juncture we do not know whether the High Court is going to hear the original section 73 application now that the Minister has issued a detention order. A fresh application can also, and will be, filed to challenge that order. To be fair to the judge concerned, Suraya Othman J, she considered herself bound by precedent that she thought tied her hands. She acted fairly, albeit conservatively.

As much as some of us may think otherwise, RPK's case is one of many that the judge has to deal with. We must also keep in mind that the judge has not dismissed or struck out RPK’s application even though this was what Federal Counsel sought. It is now for us to attempt to convince the judge that there is merit in proceeding with this application even though she will not be able to order the release of RPK based on this application alone. I would like to think that we still have a chance.

A second habeas corpus application will also be filed to challenge the Minister’s order. We started working on it yesterday. In truth, we are handicapped; the ISA precludes comprehensive review of such an order. Added to this is the legal position that such an order is issued by the Minister at his subjective discretion. The courts have been reluctant to interfere with the Minister’s discretion, save on procedural grounds, on the basis that, firstly, the law does not permit otherwise and secondly, the Minister knows best about national security.

This is the massive obstacle we are faced with.

This is one of the reasons why a section 73 detention is converted to a section 8 detention when the IGP is confronted with a habeas corpus application; the issuance of the Minister's order narrows the scope of review and permits the Minister to shield himself behind a veil of national security. RPK is not the first victim of such a strategy. We experienced the same difficulty during the so-called JI detentions in late 2002.

There are however peculiarities about RPK’s detention that may give us footholds to ease our ascent. The media has reported that the Minister issued the detention order on the recommendations of the police. These pertained to the so-called anti-Islamic articles that RPK is supposed to have written. We at least know the basis of the detention and are able to bring it into focus when we get to court.

There are also no other legal tricks that can be pulled by the Ministry. The issuance of the detention order is as problematic for RPK as it can get. Some have said that this makes the detention virtually immune from challenge. I would like to think that the interests of justice can always be served if we remain hopeful of finding the path to it.

Every case in court brings us into uncharted territory and with it surprises. I have had my share. In 2001, Justice Hishamuddin ordered the release of Abdul Ghani Haroon and N Gobalakrishnan. He also prevented the police from re-arresting the two. I was in court the day he pronounced the orders and the sheer exultation I felt as he did remains with me to this day as has the awareness that there are those who will do the right thing when times seem darkest.

RPK and the other civil society leaders who have shown us the way started a process to transform this country. This legal campaign is a part of it as is the mounting civil society pressure against the ISA that have spring-boarded off his detention and that of Theresa Kok, Tan Hoong Cheng and the HINDRAF 5. RPK knew what would happen and lent himself to the process. For that reason above all, he is firmly ensconced in my mind as a patriot.

We must not lose faith. The fight has not ended, it has just begun.

MIS

Free RPK (Update)

RPK's habeas corpus application is now scheduled for tomorrow morning (23rd September 2008). It will be heard by Justice Suraya Othman of Criminal High Court 1. The court is situated on the 5th Floor (left wing), KL Court Complex, Off Jalan Duta.

RPK has been detained under section 73(1) of the Internal Security Act. Unlike a detention by the Minister under section 8 (as was the case with the HINDRAF 5), a court must review a section 73 detention on an "objective" basis. It must satisfy itself objectively that there was a reasonable basis for the detention in the context of national security. The detaining authority is therefore under a burden to establish that the activity complained of (on the part of RPK) could reasonably be characterised as a threat to national security.

If the court allows the application, RPK must be released immediately. If the court dismisses it, an appeal lies directly to the Federal Court.

MIS

All Present And Accounted For

All Present And Accounted For

Like many others, I stopped breathing last Friday evening as I saw my worst fears begin to materialize.

For some time now, talk of a crackdown similar to the 1987 Operasi Lalang had been intensifying, in part due to the Government’s unapologetic stance as to its readiness to use the Internal Security Act when it thought it necessary. This had not given much comfort to those who remember the dragnets of 1987 and 2001. If history had taught us anything, it was that in a world where politics determines so much, “when necessary” is a heavily nuanced and very subjective notion. We cannot be faulted for assuming that UMNO will employ the ISA to its convenience if it is in its political interests to do so.

As the events of the weekend have shown us, our assumption has some basis.

By early Friday afternoon, I had learnt that Raja Petra had been detained. I had also begun to hear the rumours that this was the start of a wider sweep that was to take place over the weekend and was profoundly troubled by them. I found myself struggling between not wanting to believe that the Government would be prepared to take that course, it being so counterintuitive, and being forced by circumstance to accept that the terror had started. The situation was not clear. there had after all been prior indication of the Government’s intention to detain Raja Petra specifically. Furthermore, no one had been detained since Petra’s detention at about 1.50 pm. Like all victims of impending disaster, clutching at straws I began to try to rationalize my way out of what seemed like a certain outcome.

I had begun to make some headway when I got news that Tan Hoon Cheng had been detained.

Up to that point dinner had been congenial. It carried on in complete silence, each one of us there thinking of who it was that we knew who could possibly be picked up. We recalled how there had been no apparent pattern to the detentions of 1987 and appreciated that the authorities would want to be able to point to random causes to argue against accusations of a political plan if in fact there was one. Academics and missionaries had been swept up in Operasi Lalang, even as the opposition was neutered by the removal of its leaders and prime movers.

The detention of Hoon Cheng meant that virtually anyone who had in some way or other been a little more public than average was a potential target. As concerned friends and acquaintances began to call in, for my sake and a number of people I knew and cared for, the yawning abyss of uncertainty before me brought home the painful realization of the potential costs of standing up for beliefs and a better country. Liberty and the integrity of mind, body and spirit were really no more than a question of not being in the wrong place at the wrong time.

The news that Theresa Kok had been detained rammed that conclusion home. She had done nothing out of the ordinary, more so when compared to other personalities in politics. Any doubts I had began to dissipate; there was something bigger afoot.

It was a long night. Tracking news about people I knew, speaking to them, making sure that we all felt connected to each other, to share what little encouragement we could. Speaking to others, trying to help spread the message that whatever was to happen we were to meet it calmly and with the belief that things would be for the best.

But even as the pieces fell into place and we began to face up to the probability of a wide sweeping operasi, the differences began to emerge and I could see that this was not 1987. Malaysians were reaching out to each other, messaging and calling, organizing vigils, lending their support, standing up to the intimidation as best as they could with a calmness that shone out into the gloom that threatened to engulf us, dissipating it. Looking out, I saw lights on in houses on the street where I was late into the night, early into the morning. They were beacons of hope that promised the dawn of a new day.

And come it did, something happened.

Hoong Cheng was released, accompanied by a farcical explanation that only strengthened public resolve. Raja Petra and Theresa are still under detention but their families have got to see them and their lawyers are hard at work on what in my view seem to be promising cases for habeas corpus. No other persons were detained, perhaps in part due to Barisan Ministers and component parties having taken positions against the detentions, echoing the sentiment of outrage expressed by civil society. In an unprecedented move, an UMNO Minister tendered his resignation on principle for the unjust use of the ISA. And the Government has had its hands full attempting to explain the inexplicable as it never has had to before.

Whither Malaysia? We are right here, all present and accounted for.

(Malay Mail; 16th September 2008)

MIS

Free RPK

We filed for habeas corpus this afternoon. Time to fight the good fight.

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

A Game Of High Stakes Poker?

A Game Of High Stakes Poker?

Whether the unprecedented SAPP motion of no confidence is going to be tabled for debate appears to have been edged out as the question of the hour by whether there is any substance in Raja Petra’s incendiary Statutory Declaration on the killing of Altantuya that hit the Internet late last week.

The Statutory Declaration, a sworn statement under law which makes a false statement a criminal offence, alleges amongst other things that Raja Petra was reliably informed that a very prominent VVIP together with two other persons were at the scene of the crime, the former witnessing the placing of explosives by one of the two others. He further alleges that the Prime Minister received a written report of the matter from Military Intelligence.

Needless to say, there is some measure of incredulity on the part of some who suggest that Raja Petra of ‘Malaysia-Today’ fame has a tendency towards sensationalism. They question the manner in which the information was made public and the fact that Raja Petra did not lodge a police report. Others have been less quick to brush aside the matter, more confident of Raja Petra having a foundation for the Declaration. A very public figure whose advocacy in the run up to the last General Election is credited by many as one the swing factors, he is already facing a sedition charge for an Internet publication on the Altantuya trial. And all things said and done, a statutory declaration is a very different thing from commentary on Malaysia Today.

Is Raja Petra playing a game of high-stakes poker? That is the million-dollar question and there is no apparent answer.

In the Declaration, Raja Petra states that its purpose is to allow the police to conduct a proper and thorough investigation to allow the truth to emerge. The persons he has identified have not been implicated nor called as witnesses in the on-going murder trial. They have as yet to issue any public denials, seemingly choosing to remain silent. Surprisingly, the Prime Minister has chosen to do so as well, one would think circumstance compel him at the very least to take a public stand on whether Military Intelligence did give him a report.

If founded, the apparent lack of investigation into the matters raise doubts as to not only the culpability of the accused but of whether they have been accorded their full “due-process” rights in law. They also equally point to the possibility of those actually or equally responsible having been let off free. These bring into question the effectiveness and integrity of the criminal justice system and further erode the already seriously undermined administration of justice. The Declaration is as such a matter of great public importance.

Whatever the case, it is imperative that the Government must take appropriate steps to not only look into the matter fairly and thoroughly, but also be seen to be doing so in a transparent manner.

The machinery for an investigation seems to have been fired up. However, in light of a media report that the Attorney General’s Chambers has lodged a police report against Raja Petra, apparently for criminal defamation, I am concerned that the focus of the exercise will be Raja Petra rather than the substance of his allegations in a manner reminiscent of the Irene Fernandez affair. In Fernandez’s case, a defamation report was lodged against her after she made public shocking revelations about goings-ons at the Semenyih detention facility, then under the control of the Royal Malaysia Police. This resulted in Fernandez being prosecuted and ultimately convicted. Significantly, investigations into the events at Semenyih were incidental to the only formal investigations that took place, the investigation for criminal defamation.

I have grave reservations about the Attorney General’s Chambers having lodged the police report. It is more usually the person aggrieved, especially where defamation is concerned, that lodges the report. In this case, it should have been the persons identified in the Statutory Declaration, if at all. Furthermore, the Attorney General is the legal advisor to the Government and serves its interests and not those of individuals, notwithstanding their having a connection with Government.

It is also mystifying how the Attorney General could have formed the view that the Declaration was defamatory before apparently even looking into the allegations, more so in light of the Inspector General of Police declaring that the police would be calling up the three individuals named in the Declaration. One would have thought that the Attorney General would have considered the matter as whole first before directing the lodging of the police report. This and the fact of the Attorney General’s Chambers not having lodged a parallel report as to the fact of the allegations are suggestive of a presupposition that the declaration is false.

If so, this may impede the objective enquiry called for by the situation. This would be wrong.

After March 8th this year, the Prime Minister in effect said that the Government had to listen to the rakyat more. The rakyat has demanded accountability and transparency. The murkiness surrounding the killing of Altantuya has long been and continues to be the subject of public discussion in part due to her father’s tireless campaign for nothing more than the bringing to book of the killers of his daughter. The fact of his having to do so is an indictment against this nation.

Let the truth emerge. One way or the other, let it out.

(Malay Mail; 24th June 2008)

MIS

Update: The PM and DPM have since denied the truth of the Statutory Declaration

Free Raja Petra

"I am happy. We bloggers have declared war on the government. We are not scared of the government. The government should be scared of us".

Raja Petra

As I stepped out of my home on the morning of the 9th of March, it felt like I had been holding my breath for a lifetime and there I was, suddenly, drawing breath. Perhaps it was the adrenaline, still surging through my veins, the few hours of sleep unable to extinguish the exultation of victory.

And it had been a victory.

It was not just about the fact that the Barisan had been given the trouncing it rightfully deserved. It was also, perhaps more importantly so, about the many personal stories, the sacrifices, of those who had helped change the course of destiny in their own ways, big and small.

We had been involved in a war without even knowing it. Two wars. The first, a war on democracy waged by those who saw only the value of their own empire, to whom the language of democracy was merely a useful means by which to distract from the glint of the weapons as they came hurtling down at us. The arbitrary detentions, the brutality, the perversion of justice, the muzzling of free expression and the subversion of the institutions of state kept us in a constant state of shock that left us blind to all that was being taken from us.

There were visionaries however, those who were our compass stars. They showed us, in their own ways, the true north. They showed us that for us to reclaim democracy, we had to go to war for it. They showed us the way into that war, that second war, the war for democracy.

I saw it as thousands marched for free and fair elections. I saw it as thousands marched against marginalisation. I saw it as thousands marched for justice. I saw it as people stood up in defiance, stood up to be counted. I saw it as people said “No More!”.

And I saw it in the campaigns of truth that spread across the blogs.

Raja Petra, like Haris Ibrahim, and many others, were, are, visionaries who have continued to show us the way through courage and tenacity. These patriots, standing up in defence of their motherland, are the mirrors in which we see ourselves and all that we stand for, all that we should be.

March 8th was a decisive victory for all of us. But it was not the only one that we need. We may have won the battle, but it is the war we want to win. Let the deeds of those who have paved the way with their sacrifice become the standards under which we march. For this time, we march to win. This time, we march for Malaysia.

MIS