(Penang, Tuesday): It is a sad commentary on the long distance the country must traverse before we can achieve a just rule of law and a truly independent judiciary that the landmark Hishamudin judgement on the Internal Security Act and habeas corpus is being overshadowed by the attack on it initiated by the Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim.
Rais’ opening salvo against the Hishamuddin judgement by declaring that it was “uncommon for judges to include in their verdict a call to the Government to change certain laws” was followed immediately by a blistering attack by the People Progressive Party (PPP) President and Deputy Housing and Local Government Minister, Datuk M. Kayveas, on Justice Hishamuddin warning the judiciary not to interfere and encroach on Parliament’s legislative powers and undermine the doctrine of the separation of powers.
Kayveas’ assault on the judiciary was given prominent coverage by television news last night.
Both Rais and Kayveas are wrong in taking the most ludicrous position when they should know that 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quite common for judges in the common law tradition to urge their Parliament to change laws which they feel have become outdated, obsolete, oppressive or unjust, as judges can only interpret and administer but not change the laws.
The question of the judiciary encroaching into the legislative powers of Parliament does not arise as it is finally Parliament which must decide whether to enact any legislation or amendment.
In the 43-year history of Malaysia, the judiciary had never been a threat to the independence and sovereignty of Parliament. If Rais and Kayveas are so solicitious about Parliament’s independent role as the highest legislative and political chamber in the land, they should decry the subordination of Parliament by the Executive which posed the greatest threat to the independence of Parliament, which had been documented with such clarity and detail by Rais who was Deputy Home Minister (1976-1978) in his book Freedom under Executive Power in Malaysia.
Rais has created a grave credibility problem for himself as from his book, he should have been the first to hail the Hishamudin judgement instead of being the first to pour scorn on the landmark case.
In his book, Rais had called on the courts to be “an effective barricade” against executive transgressions against the rights and liberties of the subject, warning that so long as the courts “divested themselves of the jurisdiction” to question the abuses of executive powers, for so long will the rule of law be marginalised in Malaysia!
Now, at long last, after over a decade of the judicial “dark age”, a judge has come along to answer Rais’ call, raising the “barricade” against executive transgressions against the liberties of the subject to stop the marginalisation of the rule of law in Malaysia. But where is Rais?
ASEAN Law Association governing council member Dr. Siva Ananthan said Rais had committed a contempt of court in criticising Justice Hishamudin’s decision.
He said: “Judges hold an important position to uphold the law of a nation and politicians should not criticise their views.” (The Sun).
I do not agree with Siva. I’ll defend Rais’ right to criticise the landmark Hishamudin judgement which is no contempt of court although I totally disagree with Rais and would want him to publicly admit his mistake in repudiating the thesis in his own book.
Judgements and decisions of judges should not be immune from public criticisms, even strong and robust ones, on their merit, implications and repercussions, so long as such criticisms do not challenge or question the personal honesty or motivation of the judge concerned.
If there is to be a full restoration of public confidence in the system of justice in Malaysia , with a just rule of law and a truly independent judiciary firmly in place, there should be a robust tradition of public debate and criticisms of judicial judgements.
For instance, there should have been an intense debate in the press, university campus, bar meetings, etc in the past six days on whether the Paul Augustine judgement or the Hishamuddin judgement on the ISA and the habeas corpus should prevail in Malaysia, not only in terms of the written law and the Malaysian Constitution, but what is most suitable and appropriate for Malaysian human rights and democracy in the fifth decade of nation-building and facing the challenges of globalisation, liberalisation and the information and communications technology.
In his judgement dismissing the habeas corpus application by Parti Keadilan Nasional Youth chief Mohd Ezam Mohd Nor, its vice president Tian Chua; former JIM Chairman Saari Sungib, Free Anwar Campaign director Raja Petra Kamaruddin and social activist Hishamuddin Rais on April 25, 2001, Paul claimed that it is for the detainees to show that the ISA powers had been exercised mala fide.
In contrast, Hishamudin proclaims "the cardinal principle …that every detention is prima facie unlawful and the burden of proof is on the detainer to justify it" and that under Article 5(2), the right to apply to the High Court for a writ of habeas corpus is not merely a legal right but also a constitutional right available to any person who believes that he has been unlawfully detained.
Hishamudin stressed: "Judges are the protectors of fundamental liberties of the subjects as enshrined in the Constitution. It is a sacred trust that they must vigilantly uphold."
These great issues before the courts do not merely concern judges but all Malaysians as it is finally the people and not the judges who must decide the nature of their birthrights to fundamental liberties and their guarantees in Malaysia’s ever-maturing journey towards a more democratic and vibrant civil society.