Rais is wrong, for it is quite common for judges in the common law tradition to urge their Parliament to change laws which they feel have become outdated, obsolete, oppressive or unjust, as judges can only interpret and administer but not change the laws.
As Suhakam Commissioner and retired Court of Appeal judge, Datuk Mahadev Shankar said in his keynote address at the 3rd National Medico-Legal Conference on “Medicine, Law and Human Rights in the New Millennium” yesterday, human rights will become an empty catch phrase unless Malaysian judges are sensitive to the role they should assume in bringing about normative changes to keep in line with the current imperative needs of the civil society.
But what is very common in common law judicial traditions have become very uncommon in Malaysia after more than a decade of the Dark Age for the Judiciary, and the “uncommonness” of judges in Malaysia calling on Parliament to consider change of laws is a mark of how judicial independence had been trampled upon and subverted in the country.
Rais should have rejoiced at the Hishamudin judgement on ISA and habeas corpus last Wednesday as one of the signs of the advent of a new era for the judiciary, especially as he had been one of the strongest advocates for such judicial changes in his book Freedom under Executive Power in Malaysia, which remains to this day the most powerful denunciation of the ISA by a former Deputy Home Minister.
This is what Rais said about the ISA:
“That there are clear violations of human rights by invoking the ISA and other draconian legislation is an understatement. The misery that these executive laws have brought upon individuals have left a clear message: there is a state of confusion in the real, accepted meaning of the phrase ‘prejudicial to the security of Malaysia.’ The meaning of this phrase which is thematic in the ISA as well as under Articles 149 and 150 of the Constitution is systematically left to the discretion of the executive. It is a one-sided meaning to the exclusion of all others and one with which the courts have willingly complied. The courts in so doing have, by their own act of interpretation, divested themselves of the jurisdiction to question the subjective findings of the executive. And for so long as this situation prevails the rule of law is necessarily marginalised in the preservation of fundamental human rights in Malaysia.” (p. 289)
Enumerating the ISA abuses and examples where persons were detained, “clearly linked to their political beliefs, and not to the prospective harm the relevant persons would have brought upon the security of the country”, Rais continued:
“The ISA has emerged as the most powerful executive instrument in effecting arrest and detention without any judicial control whatsoever. Perhaps this is why the ISA has been described as ‘white terror’. The incidents of Operation Lalang and numerous others support this view. There are no legislative committees to oversee the implementation of the ISA. There are no statutory provisions that require periodic reports connected with preventive detention to be tabled in Parliament. All acts and things done under detention laws are only subject to the Minister’s ultimate discretion. In a sense, powers exercised by the police and the Minister under the ISA are completely unilateral and are subject to no other authority. It is common practice that the Minister of Home Affairs signs detention papers purely basing his findings on the briefs supplied by the police. There have been instances in the past when detention orders were signed by the Minister or his deputy just within hours before the expiration of the respective detention period. In its practical sense and in such a case, the Minister cannot be said to have used his subjective faculties to satisfy himself that the detention ought to have been made because he has not read the police reports in their entirety. It could therefore be said that when a man is sent to a detention camp the Minister is making a political decision about the rights and liberties of the subject solely upon the recommendation of the police.” (p.290/291)
As Rais had called in his book on the courts to be “an effective barricade” against executive transgressions against the rights and liberties of the subject, he should be the first to hail the Hishamudin judgement and rejoice that he has found an intellectual soul-mate in Justice Hishamuddin instead of being the first to pour scorn on the landmark case.
Rais should remain true to his intellectual convictions and raise in the Cabinet meeting on Wednesday the very pertinent issues he raised in his book and ask whether in signing the detention orders for Mohd Ezam, Tian Chua, Saari Sungib and Hishamuddin Rais under ISA, the Deputy Prime Minister and Home Minister Datuk Seri Abdullah Ahmad Badawi was making a purely political decision where he had not “used his subjective faculties to satisfy himself that the detention ought to have been made” either because he had not read the police reports in their entirety or had not carried out an independent assessment on the reliability and veracity of the police reports.
Or to be more exact, was it Abdullah’s own personal decision to order the detention of the four under the ISA, how much time did he take to come to such a conclusion from his reading the police report and his signing the detention orders, and is he prepared to go up and down the country to personally justify his decision to apply to draconian ISA against the four.