(Petaling Jaya, Tuesday):
It is most regrettable that since the unanimous four-judge Federal Court decision on Friday on the unlawful detention of Mohd Ezam, Tian Chua, Saari Sungib and Hishamuddin Rais under the Internal Security Act (ISA), all the principal players in power connected to good governance, law and human rights have tried to bask in its outcome while studiously avoiding its implications for a just rule of law in Malaysia.
The classic "denial syndrome" of the Prime Minister, Datuk Seri Dr. Mahathir Mohamad was again on display when he claimed yesterday that the Federal Court ruling against the police is a clear indication that the judiciary was independent and free from any sort of interferences.
He said that the court's decision in favour of several ISA detainees speaks volumes on deflecting unjustified and lopsided views about the Malaysian judiciary - completely ignoring the fact that there were only brickbats and no bouquets for the Federal Court decision whether from the ISA detainees, their families, the human rights NGO community or the national and international legal community as the Federal Court lacked the judicial courage to logically follow through with its decision to order the release of the four under the Internal Security Act, giving the four at most "partial paper victory".
The Minister in the Prime Minister's Department, Datuk Dr. Rais Yatim also staged a masterful performance of "issue avoidance", calling on the authorities, including the police, to remedy shortcomings reported by the courts in their judicial findings, but studiously ignoring implications of the Federal Court judgment as to whether the government is guilty of contempt for the just rule of law in continuing to keep the four under ISA detention.
As author of "Freedom under Executive Power in Malaysia", Rais should be 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", and there can be no running away from the fact 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.
Suhakam Chairman, Tan Sri Abu Talib Othman also waded into the subject, declaring that the Federal Court judgment was a "lesson for the detaining authorities" but he was conspicuously silent on the most important matter and which should concern him most in his current capacity - whether the four should be immediately released under the ISA following the Federal Court judgment.
Abu Talib did not explain how the Federal Court judgement "ensures the protection of human rights" as his advice that "the detaining authorities should take note of the judgment and follow the advice given there" could mean that the police should in future cover their tracks of "mala fide detention" under the ISA so that they could not be caught out in a habeas corpus challenge rather than that the police should respect human rights and end all mala fide detentions under the ISA.
Human rights and the rule of law are too serious matters to be subjects of legal games or one-upmanship, whether by the police or the government, and DAP calls on the Attorney-General, Datuk Gani Patail, to advise the Cabinet tomorrow on the rule of law implications of the Federal Court decision on the unlawful detention of Mohd Ezam, Tian Chua, Saari Sungib and Hishamuddin Rais and why the four should be released under the ISA immediately.
If the government is not prepared to respect and abide by the just rule of law to release the four immediately under the ISA following the Federal Court decision, then the Deputy Prime Minister and Home Minister, Datuk Seri Abdullah Ahmad Badawi should present a Ministerial statement in Parliament to explain that in signing the ISA detention order for Mohd Ezam, Tian Chua, Saari Sungib and Hishamuddin Rais, he had not blindly followed the mala fide recommendations of the police but had independently, fairly and lawfully decided that they were threats to national security, and if so, to allow a full parliamentary debate as to how he could have come to such a Ministerial decision from such an unheard-of process.