DAP welcomes landmark decision of five-member Federal Court that habeas corpus appeals by five ISA detainees against Paul Augustine judgement “not academic” but “still alive”

Media Statement
by Lim Kit Siang

(Petaling Jaya, Thursday): DAP welcomes the landmark decision of the five-member Federal Court yesterday that the habeas corpus appeals by five Internal Security Act (ISA) detainees against Justice Paul Augustine’s dismissal and judgement in April is “not academic” but “still alive” although four of them, Ezam Mohd Nor, Tian Chua, Saari Sungib and Hishammudin Rais have been formally detained under the ISA by the Home Minister’s order while the fifth Raja Petra Raja Kamaruddin has been released.

The Federal Court, presided by Chief Justice Tan Sri Mohd Dzaiddin Abdullah and comprising Chief Judge of Malaya Tan Sri Wan Adnan Wan Ismail, the Chief Judge of Sabah and Sarawak Tan Sri Steve Shim and Federal Court judges Datuk Abdul Malek Ahmad and Datuk Siti Norma Yakob, unanimously  dismissed the preliminary objection by the Inspector-General of Police to strike out the appeals on two grounds, that Raja Petra was released on June 2 and that the other four were no longer in the custody of the police following the detention order issued by the Home Minister.

What transpired in the Federal Court has reinforced my contention and query a day earlier (media statement 5.6.2001) as to whether the unusually early decision of the Home Minister to detain the four under the ISA (53rd day) was purely designed to pre-empt the Federal Court hearing of the habeas corpus appeals against the Paul Augustine judgement which had been  sat down for yesterday, so that the Deputy Public Prosecutors could argue that the whole basis of the appeals and their  challenge to  the legality of their detention had changed and disappeared, with Raja Petra released and the other four formally detained under the Minister’s order under Section 3 and no more by the Police under Section 73(1) of the ISA.

The vindication of my contention has raised the even more pertinent question as to whether the Home Minister, Datuk Seri Abdullah Ahmad Badawi had acted unlawfully and mala fide in allowing such an extraneous factor to influence him in signing the detention orders against the four at so unusually early a date when this is normally done in the last two or three days of the 60-day detention, as
Parliament never intended or empowered the Home Minister to sign  ISA detention orders to  pre-empt any court hearing or  habeas corpus appeal.

There are also other grounds pointing to Abdullah having acted unlawfully and mala fide in signing the detention orders for Ezam, Tian Chua, Saari and Hishamuddin, such as:

Abdullah should  live up to his his Eighth Malaysia Plan speech in the Dewan  Negara last Tuesday calling for  a policy of transparency by discharging two responsibilities: firstly, that he had acted independently,  fairly and lawfully when deciding whether to order the detention of the four; and secondly, to demonstrate that there are enough evidence to justify their detention under the ISA.

With regard to the first test, Abdullah should demonstrate that he had not followed the previous “common practice”  where the   Home Minister automatically signs detention papers purely on the recommendation of the police, without a fair and open mind to  satisfy himself on the adequacy of evidence or the  necessity of the detention -  which are   clearly an unlawful exercise of Ministerial powers and  gross dereliction of duty making any such detention order unlawful, null and void.

In this particular case, Abdullah could not have a fair and open mind to decide whether the police have produced an adequate case for the formal detention of the four under the ISA when seven weeks earlier on April 11, he had already made up his mind even before the police had completed its investigations that the ISA arrests were “due strictly to their involvement in activities detrimental to public order and national security”.

Any independent court of law in any legal system would strike down such an exercise of Ministerial power as unlawful and  mala fide.

We must thank the  Minister in the Prime Minister’s Department, Datuk Dr. Rais Yatim, who was Deputy Home Minister from 1976-78, for  describing in his book Freedom under Executive Power in Malaysia (1996)  how previous Home Ministers had automatically signed ISA detention orders based purely on police recommendations without exercising their Ministerial responsibility to satisfy themselves on the adequacy of the evidence or the necessity of the detention.

Rais wrote:

“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)

Rais should explain whether he still stood by these criticisms of the these unlawful ISA detentions as a result of the unlawful exercise of Ministerial powers, as he has claimed that he didn’t have to stand by what he studied academically.

May be, Rais should publish an addendum to his book to clarify what are the arguments, conclusions, criticisms, paragraphs and chapters which he still stands by and those which he does not stand by any longer, as well as those which he has suspended judgement whether to stand by them or not!

Rais, however, was doing his own academic credentials no service when he persisted in claiming that Shah Alam High Court judge Justice Mohd Hishamudin Yunus was wrong in stating in his judgement that the time has come for Parliament to consider whether the ISA originally meant to counter communist terrorism in the early years of independence was relevant to the present situation.

According to the Star yesterday, Rais said the judiciary could make suggestions to improve any laws but the most important thing was  the manner in which such suggestions were made.

He said: “What you should do is to interpret the law. What you should not do is to suggest which law needs to be amended.  Such things are known in the first year of reading law.”

Rais suggested those in doubt where judicial functions begin and where parliamentary functions and responsibilities end could go back to the judgment of Lord Denning or Lord Devlin to find out.

In actual fact, Rais is making claims which even those in the first year reading law would know is baseless.

As the retired Supreme Court judge Tan Sri Harun Hashim commented:

“This has happened in the past …pre-independence and post-independence judges have made similar views in their verdicts as they do it based on the facts which are presented before them in court. Sometimes when someone is charged in court and the judge finds that the laws are old, he can suggest that the laws be reviewed. However it is up to the Government to decide through Parliament if a law needs to be reviewed or not.” (NST 6.6.01)

When Rais  invoked the name of Lord Denning, he must remember that Denning once said jurists are made up of two types: “bold spirits” and “timorous souls”.  When Rais wrote his book, he was a “bold spirit”, but when he now says that he does not have to stand by it, he has become a “timorous soul”.

Rais should re-read Lord Denning’s  first "Hamlyn Lecture" under the  title "Freedom under the Law" in 1949  where in his conclusion he warned:

 "No one can suppose that the executive will never be guilty of the sins that are common to all of us. You may be sure that they will sometimes do things which they ought not to do: and will not do things that they ought to do. But if and when wrongs are thereby suffered by any of us what is the remedy? Our procedure for securing our personal freedom is efficient, our procedure for preventing the abuse of power is not. Just as the pick and shovel is no longer suitable for the winning of coal, so also the procedure of mandamus, certiorari, and actions on the case are not suitable for the winning freedom in the new age. They must be replaced by new and up-to-date machinery, by declarations, injunctions and actions for negligence... . This is not the task for Parliament ... the courts must do this. Of all the great tasks that lie ahead this is the greatest. Properly exercised the new powers of the executive lead to the welfare State; but abused they lead to a totalitarian State. None such must ever be allowed in this country."

Lord Denning had also  said:

Does Rais endorse these pronouncement by Denning on the rule of law and the role of the judiciary - before Denning underwent the transformation as icon of the liberal spirit of the law to become a “reactionary” when he became a victim to the speed of change in England and the world.


*Lim Kit Siang - DAP National Chairman