The Minister in the Prime Minister’s
Department, Datuk Dr. Rais Yatim should practise what he preaches and not commit
the unpardonable political sin where his actions are the exact opposite of his
Rais told the New Straits Times today
that “The authorities, including the police, should be prepared to remedy
shortcomings reported by the courts in their judicial findings, while respecting
and abiding by the decisions of the Bench
"If the judicial finding shows that there is procedural or technical default, the authorities, such as the police, ought to change shortcomings and technical faults found by the court to be inoperative or faulty.
"I believe this is the best recourse. It is a simple principle that should be respected by all."
Referring to the Federal Court decision
on Friday that the police had acted
mala fide in detaining the four and that their ISA detention was unlawful, Rais
said it was normal for the Government or other parties to lose some of their
cases in courts.
the decision should be respected by the people and the Government as
the Federal Court had all the grounds to make such a decision, adding:
"We concede that the judicial finding ought to be respected and
precautionary measures be taken by the authorities to revamp its procedures and
pay attention to details in respect to detentions under the ISA and the
Emergency Preventive Ordinance 1969."
I find Rais’ response to the
unanimous four-judge Federal Court judgment holding
that the ISA detentions of Mohd. Ezam, Tian
Chua, Saari Sungib and Hishamuddin Rais were unlawful
most craven and disappointing.
The initial impression of the New
Straits Times report, headlined “Remedy shortcomings, Rais tells
authorities” that Rais was upholding the rule of law is quickly dissipated by
its contents, which is nothing but an apologia for the government’s continued
contempt for a just rule of law in continuing to keep the four under ISA
detention despite the Federal Court decision.
Rais was trying to trivialize the
Federal Court decision as the result of police
“shortcomings”, “procedural and
technical faults”, which could be put right to justify and legalise the ISA
detentions, when it was not on any technical ground that the Federal Court held
that the ISA detentions of the four were unlawful but on the substantive ground
that the police had acted mala fide
in detaining the four because of their political beliefs and not because they
were a threat to national security as required by Section 73(1) of the ISA.
Chief Justice Tun Mohamed Dzaiddin
Abdullah held that the detention of the four were “for an ulterior purpose and
unconnected with the national security”. He said that despite the press
statement by the Inspector-General of Police, Tan Sri Norian Mai on April 10,
2001 that the four were detained because they were a threat to national
security, the interrogation conducted on them were more on their political
activities and for intelligence
gathering – as the detainees were not interrogated on any militant activities
and neither were they questioned about possessing explosive materials and
This is not a procedural or technical defect, but a substantive injustice which could not be put right as the ISA was never intended to be used against political opponents of the ruling regime.
Rais should practise what he preaches
by ensuring that the authorities, including
the Cabinet, should respect and abide by the spirit of the “substantive
justice” of the Federal Court decision on the unlawful detention of
Mohd Ezam, Tian Chua, Saari
Sungib and Hishamuddin Rais and he
should ask the Cabinet at its meeting on Wednesday
to immediately revoke their ISA
As author of "Freedom
under Executive Power in Malaysia", Rais is fully aware of the judgment of Salleh
Abas, LP, in Theresa Lim Chin Chin & Ors v Inspector General of Police
(1988), that “there is only one
preventive detention”, that the
police power of arrest and detention under section 73 could not be separated
from the ministerial power to issue an order of detention under section 8 and
that “There can be no running away from the fact that the police power under s
73 is a step towards ministerial power of issuing an order of detention under
s.8 …the initial stage in the process leading to preventive detention.”
As the de facto “Law Minister” and the first and only holder of a Ph.D. in law in the Cabinet, Rais should ask the Cabinet not to run away from the fact that there is only one preventive detention and that when the police detention under section 73 of the ISA is quashed as mala fide and unlawful, the Ministerial order of detention under section 8 is equally tainted and unlawful and cannot stand.
Rais and the Cabinet should not give an
artificial or schizophrenic interpretation of the ISA, as in accepting that the police had acted
unlawfully in detaining Mohd. Ezam, Tian Chua,
Saari Sungib and Hishamuddin Rais but yet claiming that the Minister’s
detention could still stand – which runs against the very
grain of common sense, justice and fair play and can
only diminish public awe and respect
in the system of justice, the rule of law and democratic governance in the
is another reason why Rais should raise the Federal Court decision on the
unlawful ISA detention of the four on Wednesday’s Cabinet meeting.
his book, Rais Yatim, who was
Deputy Home Minister from 1976-78, had described 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.
"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)
In view of the unanimous Federal Court decision that the police had acted mala fide and for “an ulterior purpose unconnected with the national security”, Rais must raise in Cabinet the question as to whether in signing the detention order for the four under Section 8 of ISA, the Deputy Prime Minister and Home Minister, Datuk Seri Abdullah Ahmad Badawi had discharged the two responsibilities of firstly acting independently, fairly and lawfully in deciding whether to order the detention of the four; and secondly, that there were enough evidence to justify their detention under the ISA.
view of the Federal Court decision, Rais should advise the Cabinet to present a
Ministerial statement in Parliament to justify the continued
detention of the four under the ISA if the government refuses to respect
the spirit of “substantive justice” of the Federal Court decision and
immediately release the four under the ISA, to prove to the nation and the world
that the Minister’s detention order of the four was not arbitrary, capricious,
unlawful and immoral.