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

Finding Equilibrium

Finding Equilibrium

Zaid Ibrahim’s impassioned call for a rejection of race politics last Friday at the LawAsia conference is one that deserves its place in history. His plea for the restoration of democracy and the Rule of Law has reverberated throughout the nation.

This is not surprising. Zaid’s message is rooted in an obviously deep and heartfelt commitment to the nation and the interests of all its citizens. Where the Malays are concerned, he is strident in his rejection of policies that have left the community struggling against a siege mentality that robs it of its ability to meet the challenges of a globalizing world. As he observes, the “Malays are now a clear majority in numbers. The fear of their being out numbered is baseless; they are not under siege. The institutions of government are such that the Malays are effectively represented, and the there is no way the interest of the Malays can be taken away other than through their own weakness and folly.”

Equally forceful in his defence of non-Malay interest, Zaid laments attempts by politicians to do away with a social contract that guarantees “equality and the promise of the Rule of Law” in favour of one that promotes a supremacist ideology that ultimately serves only the interests of an elite. This, he opines, has left the nation deeply divided and cut off from the democracy and Rule of Law so vital for the sustainable and inclusive development that all Malaysians need, irrespective of race and religion.

Put another way, Zaid has given voice to what it is most Malaysians think: that we need to be united to face the future. The founders of this nation understood we could, appreciating that there was no reason for fear and that we had every reason for mutual respect and dignity. Fear mongering has however kept us apart and from seeing the threats that confront us, and what we need to do to counter them.

Zaid’s message is persuasive for its simplicity and self-evident truth. He must be credited for having been able to say what had to be said, as it needed to be said.

If there is any doubt as to the legitimacy of the viewpoint expressed, then we need only consider the reactions from senior UMNO members entrenched in the leadership structure of the party. These reactions not only make it evident that Zaid hit the nail on the head, they also show why it is UMNO and the Barisan Nasional need to seriously reconsider how to make themselves relevant. Two responses are illustrative.

Perlis UMNO liaison chief and former Menteri Besar Datuk Seri Shahidan Kassim had this to say, according to media reports, “Zaid should repent. Otherwise he should get out of the ‘rumpun Melayu’. Paraphrased by BERNAMA, his explanation for this was that “if Zaid continued to question the Malay supremacy concept, then he should no longer be a Malay as a Malay should be defending the Malays and not running them down.”

But, is that not what Zaid was doing? Apparently not, for the New Straits Times reported Home Minister, Datuk Seri Syed Hamid Albar, who is incidentally an UMNO supreme council member, as saying that Zaid was “a traitor to his own race and should apologise for his remarks.”

Both responses are so self-defeating that they boggle the mind. They typify the might is right attitude that Zaid speaks out against. Being senior UMNO members, both individuals must be open to the possibilities. As Zaid put it, if “affirmative action is truly benchmarked on the equitable sharing of wealth that is sustainable, then we must confront the truth and change our political paradigm; 40 years of discrimination and subsidy have not brought us closer.”

Zaid was not alone in expressing concerns about the way things are. At the same conference, His Royal Highness Raja Nazrin Shah, the Raja Muda of Perak, called for a rejection of discriminatory policies. The Raja Muda observed that the “consequence of not empowering citizens or, worse, disempowering them, is to create a deep sense of alienation and hostility. Indeed, it is very often an overwhelming sense of alienation and powerlessness that causes the rash acts of violence that fracture societies. It gives these citizens every reason to seek to divide society in order to redress their dissatisfactions. This is bad and insensitive politics. On another level, we cannot morally turn our backs on the fundamental responsibility of ensuring that all stakeholders in our society, no matter how small or seemingly insignificant, have a place under the sun.”

The ideal could not be better articulated. Malaysians, all of us, want our place in the sun. We do not wish to live in fear, looking over our shoulders all the time. There is more than enough for us all to share in. We have been blessed with a nation so abundant with resources and so rich with potential that generation upon generation will be able to live in peace and prosperity. The only catch, if it can be called that, is that we need to be left alone to find our equilibrium. Only then can we get on with the task of doing it right.

(Malay Mail; 4th November 2008)

MIS

Running Away

Running Away

A few days ago, I was talking to a friend. A meandering dialogue, it was really an excuse for us to reconnect as friends do. And as these exchanges tend to, we drifted into matters of family. She spoke about her children, her brother, the usual assortment of fears and hopes, funny moments, painful ones. I reciprocated.

At some point I began to talk about my father. And as I progressed into my narrative, she suddenly remarked that it was as if I was describing someone very different from the person I had talked about a year and a half ago. I thought about it and understood that she was right. The person I had just been describing was a warm, humorous and slightly dotty academic who, in the recounting of his madcap adventures across the globe in search of his truths, came across as a less sexy version of Sean Connery in his role as Indiana Jones’ father. The father I had described the year before was a quiet, reserved man so removed from his context and so driven in his academic research that he was virtually impossible to relate to. So much so that I had at times wondered what it was that he was running away from.

It struck me then that my father had not changed. I wondered whether I had been romanticizing my account of my father. Writers tend to exaggeration in the name of art, they call it artistic licence, and I was really a closet writer who had stumbled into the practice of law. But then I reconsidered, if that were the case why had I not done that before and, if the truth were to be told, our relationship had always been disjointed. I saw that there had to be another reason.

The more I thought about it, the more I became convinced that I was the reason. I had changed, it seemed, and in as big a way that allowed black to have somehow become white. How that had happened, what had caused that shift in me, these were things I was less sure of.

Over the next few days, I kept on going back to that insight, twisting and turning it in my mind to look at it from different angles. I gnawed at it like a dog with a bone, trying to extract its essence. Slowly, my ruminations took me through the ebb and flow of the preceding year. Gradually, realization dawned.

At some point, I had accepted him; the good, the bad, everything. More crucially, I had accepted that I was his son and that without him, I would not have journeyed down that road that allowed me to become who I was and who I was becoming. My father may have been running, but I had been on my own long distance run. One that had instead of taking me towards where I wanted to get to had taken me away from it. I had stopped running. There was no reason to any longer; there had never been one.

And I saw then that we had to stop running away from who it is that we are.

For years we have fought off any idea of a real Malaysian identity, one in which we could just simply be Malaysian without having to underscore whether we were Malay, Chinese, Indian, Kadazan, Iban or anything else. We have done this not because we know that we cannot have such an identity but because we have preferred to believe in a fiction that had over the years been constructed on the foundation of pain, anguish and hopelessness that enforced separation from one another has caused us all.

It is in the interests of those who prefer to say that a Malaysian identity, a Bangsa Malaysia, is a myth, or that it can only be built around a national identity that prefers one aspect of our beautifully diverse lives, to perpetuate the reasons that keep us apart. The proof that what it is they say is the myth and that each and every one of us has a role in creating, nurturing and evolving our national identity, lies all around us. We just have to want to see it: the way we eat each other’s food and how that food has in a way become all our food, the way we celebrate each other’s festivals with as much gusto as we would ours as if they were our own, the mixed marriages and the children they have blessed this country with, the common dreams and ambitions, the aspirations of our young, our collective destiny.

What are these if not aspects of who it is we all are?

What makes us uniquely Malaysian is our difference and the way we embrace it as one community, warts and all. If we could begin to see that, then that day when we topple that foundation of illusions, and with it that edifice that has for far too long cast a gloom over us, will dawn.

My father is my father and I am his son. I am a Malaysian and I want to stop running.

(Malay Mail; 28th October 2008)

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

On Unity

The River

In the valley of Kadisha where the mighty river flows, two little streams met and spoke to one another.

One stream said, "How came you, my friend, and how was your path?"

And the other answered, "My path was most encumbered. The wheel of the mill was broken, and the master farmer who used to conduct me from my channel to his plants, is dead. I struggled down oozing with the filth of those who do naught but sit and bake their laziness in the sun. But how was your path, my brother?"

And the other stream answered and said, "Mine was a different path. I came down the hills among fragrant flowers and shy willows; men and women drank of me with silvery cups, and little children paddled their rosy feet at my edges, and there was laughter all about me, and there were sweet songs. What a pity that your path was not so happy."

At that moment the river spoke with a loud voice and said, "Come in, come in, we are going to the sea. Come in, come in, speak no more. Be with me now. We are going to the sea. Come in, come in, for in me you shall forget your wanderings, sad or gay. Come in, come in. And you and I will forget all our ways when we reach the heart of our mother the sea."

Khalil Gibran, "The Wanderer" (1930)

All The King's Men...

All The King's Men...

I wonder what it means for the future of this country that Datuk Mukhriz Mahathir, a current UMNO favourite son and most certainly one whom the dizzying heights beckons, has taken the view that matters pertaining to the reform of the Judiciary are not a priority. As was reported in an article in The Sunday Star, the Honourable Member of Parliament for Jerlun questioned the need for judicial reform. He claimed that Malaysia would not crumble without these reforms and, in any event, they did not benefit the Malays or UMNO.

I would have thought that the question of whether the Judiciary and the wider system of justice are in need of reform is moot. Even without the acknowledgment by the Government earlier this year that steps had to be taken to restore confidence in the Judiciary, it is glaringly apparent that all is not as it should be. Standards of judicial competence are worryingly low as is public certainty of the integrity of the judicial process. This latter aspect is no longer a matter of speculation, delusion or political spin; the conclusions and recommendations of the Royal Commission of Enquiry on the VK Lingam video made things explicitly clear: things need to be sorted out.

Matters of judicial competence and integrity impact across the board; they are neither race nor political-party specific. Bad or skewed decisions hurt the wider legal profession and the nation as a whole as much as the litigants involved. One of the biggest difficulties practicing law at the present is the lack of certainty in the law, in part for there being a slew of decisions that have been adjudged without due regard to principle or precedent. In becoming precedents themselves, these decisions have undermined the foundations of not only the legal system but also the system of commerce that it supports. Commerce being wholly dependent on the certainty that only an effectively functioning legal system can provide, the current state of affairs is anathema.

It is for this reason that when entering contracts pertaining to Malaysia, many a commercial party now take pains to stipulate that the law of the contract is not Malaysian law and that dispute resolution is to take place outside the country. That is a cause for great concern, one that we have ignored for far too long to our own detriment. A weak system of justice does no favours for the country in which it exists; it is a sure path to failure for driving investment away, much as we are currently experiencing.

Is this not a matter that affects the Malays and UMNO as much as the rest of us?

This is not just a matter of our all being Malaysians and having a common future. Malays are as much litigants before the courts as any other Malaysian. They are as involved in business and corporate deals as much as the next person is, even more some would say. A cursory perusal of the law journals would show just how far, just as they would the fact that they accuse, or are being accused, of cheating and breaching duties, or murder, rape or theft, just like anyone else. UMNO itself is capable of being dragged into court just like any other society and has in fact been there before.

Surely a stronger, independent and more competent Judiciary would benefit these quarters, as much as they would everyone else? After all, justice is supposed to be blind.

I think Datuk Mukhriz Mahathir has much to offer this nation, in parliament and outside it. His reasoning in this instance is however sorely misconceived. The said article suggests that he has formed the view that the reforms are an expression of anti-Mahathirism, notably that of Datuk Zaid Ibrahim. Though I will not speak for the former Minister in charge of legal affairs, he is more than capable of doing that for himself, I will say that the potential UMNO Youth Chief may have mistakenly confused an articulation of the need for reform with a personal attack on Tun Mahathir.

The call for reform started long before Datuk Zaid Ibrahim made headway in UMNO. It was prompted by the serious consequences of the 1988 attack on the Judiciary and the Rule of Law. Many in one form or the other, including the Judiciary itself and great legal luminaries such as His Royal Highness Sultan Azlan Shah, have taken it up. Their message is clear; something needs to be done.

The Malaysian Judiciary was once respected throughout the Commonwealth, it no longer is. Its foundations have suffered a beating from the shockwaves that emanated from the events of 1988. The testimony at the Lingam Commission hearings showed how much they still reverberate and, for that, how precarious the position of the institution is.

Is it in danger of collapsing, taking the nation along with it? Only time will tell. The question for us all, Datuk Mukhriz included, is whether we want to wait to find out.

(Malay Mail; 14th October 2008)

MIS