isa

Wednesday April 25

Judge says ISA detention valid, ‘habeas corpus’ writ quashed

12:40pm, Wed: The High Court today rejected the habeas corpus application of five reformasi activists detained under the Internal Security Act (ISA) on April 10 and 11 for allegedly planning to use militant means and mass street demonstrations to topple the government.

Justice Augustine Paul said the court had no jurisdiction to hear the matter as the arrests and the detention of the five were done in accordance with powers vested in the police through the ISA.

He added that the ISA provided for preventive detention in the interest of national security.

Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain whether their detention is lawful. It is often applied for by lawyers for those held under the ISA which allows detention without trial for a minimum of two years following an initial 60-day investigative period.

The five ISA detainees filed their habeas corpus application two weeks ago. Similar applications on behalf of two others, who were nabbed outside Kuala Lumpur, will be heard at the Shah Alam High Court today.

A total of nine reformasi activists have been arrested under the ISA by police to date. The seven held on April 10 and 11 are Keadilan vice-president Tian Chua, party Youth leaders Mohd Ezam Mohd Nor, N Gobalakrishnan, Abdul Ghani Haroon and Saari Sungib, Free Anwar Campaign (Freeanwar.com) webmaster Raja Petra Raja Kamaruddin and social activist-cum-malaysiakini columnist Hishamuddin Rais

Another Keadilan leader Dr Badrul Amin Baharom was detained last Friday while the party’s youth secretary, Lokman Adam was arrested early yesterday.

From: DAP MALAYSIA

Date: Wed Apr 25, 2001 2:55 pm

Subject: [BUNGARAYA] How LKS's 1988 habeas corpus application was frustrated by seven-day shotgun amendment

------------------------------------------------
Media Comment by DAP National Chairman Lim Kit Siang at the Kuala Lumpur High Court on Wednesday, April 25, 2001 after the rejection of habeas corpus application by five reformasi activists for release under the
Internal Security Act:

Call on Rais Yatim to move an immediate amendment to ISA to fully restore judicial review and the rule of law to prevent police and Ministerial abuses of power
==============================

The High Court decision this morning to reject the habeas corpus application of the Reformasi Five, Mohd Ezam Mohd Nor, Tian Chua, Saari Sungib, Raja Petra Raja Kamaruddin and Hishamuddin Rais for release under the Internal Security Act (ISA) is most disappointing.

The time has come for Parliament to intervene to restore full judicial review of the exercise of executive powers not only under the ISA but for all other laws as the ouster of judicial review to prevent and check abuses
of powers by the executive is repugnant to the rule law and antithetical to constitutional and international human rights principles and declarations.

I call on the Minister in the Prime Minister's Department, Datuk Dr. Rais Yatim, to take immediate action to move an immediate amendment to ISA to fully restore judicial review and the rule of law to prevent police and Ministerial abuses of power in the infamous detention-without-trial law.

Dr. Rais should be pressing for the abolition of the ISA as he had once publicly advocated, but as this will be asking too much from him as he wants to continue as a Minister in the present administration, the least he should do is to get Cabinet approval for the restoration of judicial review under the ISA which was the case until 1988.

In his book, "Freedom under Executive Power in Malaysia", Dr. Rais had given an account of how the Internal Security Act was amended, assented and gazetted into law within seven short days in July 1988 just to frustrate my habeas corpus application for my release and to declare my second ISA detention under the Operation Lalang unlawful.

This is from Dr. Rais's book:

"Lim's habeas corpus application was scheduled for hearing on 13th July, 1988. The amendment was passed, despite vehement opposition by opposition
members on 9th July 1988. It was rushed through the Senate, the second chamber that is filled entirely by nominated pro-government members, within
a day of special session and became law on 14th July 1988. Lim would have succeeded in his habeas corpus application of 13th July 1988 if it had not been for the court's curious decision to allow a postponement which had been
ardently requested by the Federal Counsel who was obviously detailed by higher authorities to ask for this adjournment and who cited as his main reason for the request the inability of the Home Minister to file his affidavit on time on account of his busy schedule. The underlying reason
for this move was clear: it was for the purpose of delaying the application until 14 July 1988, i.e. until the coming into force of Act A705. When the High Court re-sat to hear the application on 14th July 1988, the judge declared:

"'However, in passing, I wish to state that had it not been for Act 705, the detention of the applicant in Kuala Lumpur before he was formally detained at the detention centre on 31 December 1987 would have been illegal.'

"On the same day the Deputy Home Minister stated that 'the amendments have nothing to do with anyone. It is not because we want to victimise Lim Kit Siang or other individuals that we have the amendments. The changes are
necessary…that is all.' With that statement the whole country was expected to be satisfied."

As Dr. Rais wrote, by way of the further amendment of the ISA in 1989, "judicial review in whatever form was disallowed" as "there are hardly any more loopholes to be challenged".

In view of the disappointing decision of the Kuala Lumpur High Court in the habeas corpus application of the five current ISA detainees, is Rais prepared to propose an immediate amendment in the current meeting of Parliament to fully restore judicial review under the ISA to prevent Ministerial and police abuses of power under it - as existed before 1988?

- Lim Kit Siang -

Wednesday April 25

Aliran slams court’s rejection of 'habeas corpus' writ
K Kabilan

7:48pm, Wed: Reform movement Aliran today described as “nonsense” the High Court decision today to dismiss the habeas corpus application made by five Internal Security Act (ISA) detainees who were detained allegedly for being a threat to national security two weeks ago.

“The court’s decision makes nonsense of the maxim that fairness is really what justice is all about,” said Aliran’s executive committee in a statement.

Calling for the abolishment of the ISA as it is “immoral, unjust, anti-democracy and anti-human rights”, Aliran said justice Augustine Paul’s verdict condemned citizens without subjecting accusations made against them to the highest standards of scrutiny.

“The sad truth revealed by the verdict is that citizens in this country have no legal recourse against the tyranny of the state.”

Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain whether their detention is lawful. It is often applied for by lawyers for those held under the ISA, which allows detention without trial for a minimum of two years following an initial 60-day investigative period.

Aliran added that Paul's decision gives power to the state to detain a citizen on the mere claim by the police that he or she is a threat to national security without the state being required to adduce any evidence in court to justify the detention.

The movement said that it was “beyond reason” how the court entertained claims that the police have evidence on the alleged activities of the five which cannot be disclosed and challenged in an open court.

“This frightening situation raises some fundamental questions. Can a citizen depend on our courts for justice? Can he confidently appeal to the courts for the protection of his civil liberties against the tyranny of the state?” questioned Aliran.

Secret reasons

Paul dismissed the application of the five reformasi activists on the grounds that the court had no jurisdiction to hear the matter as the arrests and the detention of the five were done in accordance with powers vested in the police through the controversial security law.

He also refused to look into allegations by Inspector-General of Police Norian Mai in a press statement on April 12 of the involvement of those detained in militant activities and mass violent street demonstration to topple the government, on the grounds that the law restricted him from assessing and evaluating Norian’s partial disclosures.

Norian had also subsequently affirmed an affidavit to the court stating that there were other secret reasons for the detention.

Keadilan vice-president Tian Chua, party Youth leaders Mohd Ezam Mohd Nor and Saari Sungib, Free Anwar Campaign (Freeanwar.com) webmaster Raja Petra Raja Kamaruddin and social activist-cum-malaysiakini columnist Hishamuddin Rais filed the application on April 13, just days after their arrest and detention under the ISA.

Similar applications on behalf of two others, Keadilan youth leaders N Gobalakrishnan and Abdul Ghani Haroon, who were arrested outside Kuala Lumpur, was heard at the Shah Alam High Court today.

Another Keadilan leader Dr Badrul Amin Baharom was detained last Friday while the party’s youth secretary Lokman Adam was arrested early yesterday.

Wednesday April 25

Judge says ISA in national interest, quashes bid to free 5
K Kabilan and Tong Yee Siong

5:03pm, Wed: The High Court today rejected the habeas corpus application of five reformasi activists detained under the Internal Security Act (ISA) two weeks ago for allegedly planning to use militant means and violent street demonstrations to topple the government.

Justice Augustine Paul said the court had no jurisdiction to hear the matter as the arrests and the detention of the five were done in accordance with powers vested in the police through the controversial security law.

“The executive is the judge in the matter of preventive detentions. The judicial process is unsuitable for reaching decisions on national security,” said Paul in his 53-page judgment.

“It is therefore not the function of the court to act as a court of appeal for the discretionary decision of the executive (to arrest and detain) and to inquire into the grounds upon which they carried out the decision,” he added.

He said that the applicants had failed to show that their arrests and subsequent detention were done in bad faith.

Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain whether their detention is lawful. It is often applied for by lawyers for those held under the ISA, which allows detention without trial for a minimum of two years following an initial 60-day investigative period.

Paul added that the applicants have been arrested and detained in the exercise of valid power and in compliance of section 73 of the Act. He also said that the court cannot require the police to prove to the court their reasons for the arrest and detention of the five.

He said that the detention orders showed that the police officers concerned had applied proper consideration in authorising the detention.

Paul said that the police or the Home Affairs minister cannot be required to furnish facts relating to the reasons for the detention if such a disclosure was against national interest.

Court powerless

He added the court was powerless to make an objective assessment and evaluation on the reasons for the ISA arrests given by the Inspector General of Police (IGP) Norian Mai in an April 12 press statement.

“In first two paragraphs, the IGP referred to information relating to the involvement of the seven detained in activities that may endanger the security of the country. He went on to say that the police need to carry out a thorough investigation based on the information.”

“What then follows is a general description of the activities of the reformasi movement and it was general in nature,” he said adding the press statement did not contain an exhaustive and detailed disclosure on any of the allegations against those detained.

“It was only a partial disclosure and it is impossible for me to make an objective assessment and evaluation in order to ascertain whether the arrests and detentions were justified,” he said.

In his press statement made immediately after the arrests, Norian had said that the seven were detained for allegedly making plans to topple the government by organising mass demonstrations and using other ‘militant means’.

The defence team had asked the court to assess this statement and make a ruling that if there were sufficient evidence linking the seven to any militant action, they should then be charged in an open court.

The IGP then submitted an affidavit claiming that the police had ‘other reasons which could not be revealed’ for the detention of the seven. This affidavit was subsequently accepted by the court.

Suhakam ticked off

Paul also dismissed the defence team’s argument that the police had acted in bad faith by not charging those detained in an open court.

Paul said that the arrest and detention of a person under the ISA was no indication of bad faith by the police.

“ISA is a law that deals with preventive detention and it has been recognised that in matters relating to preventive detention, the executive is the judge. The ISA is unquestionably not an ordinary regulatory legislation. Its object is to defend and uphold national interest,” he said.

He added that even the Federal Constitution provided that such a law was valid even though it was inconsistent with fundamental liberties assured in the constitution.

He also said that even the1948 Universal Declaration of Human Rights recognised that there can be restrictions in the exercise of a person’s rights and freedoms by laws relating to public order.

“ISA has the highest purpose and objective to serve. Though regarded by some as draconian, the law must be considered in this background,” said Paul.

Paul also commented on a press statement issued by the Human Rights Commission (Suhakam) denouncing the use of the ISA to detain the seven and asking them to be produced before the courts if there was sufficient evidence against them.

He said that it was inappropriate for Suhakam to make such a call as it amounted to an “unlawful interference with the lawful exercise of discretion by the police”.

“While I am convinced that Suhakam acts with the best of intentions, it must realise that it is of prime importance that issues are kept separate so as to not risk confusing the public and adding the proverbial oil to the fire,” he said.

He said that confusing the law in this case will only give false hopes to the detainees and their families.

‘Frivolous, vexatious’

Touching on an application made by the defence team to disqualify him from hearing the matter, Paul said questioning his competence to hear the matter on account of his standing in the judicial hierarchy amounted to casting aspersions on the appointing authority, which was the Yang di-Pertuan Agong.

He said that it would have been a gross dereliction of his duty as a judge if he had disqualified himself from hearing the matter without any grounds.

He said that there were no connection to the “Black 14” gathering and his judgment on former deputy prime minister Anwar Ibrahim on April 14, 1999.

“Black 14 has nothing to do with the merits or demerits of the judgment that was delivered. The application to disqualify me was frivolous, vexatious and an abuse of the process of the court,” said Paul.

The five reformasi activists were arrested ahead of a planned gathering outside the Suhakam’s headquarters on April 14, the second anniversary of Anwar’s conviction and six-year jail sentence imposed on him by Paul on charges of corruption.

The five detainees filed their habeas corpus application two weeks ago. Since April 10, a total of nine reformasi activists have been arrested under the ISA by the police.

The five are Keadilan vice-president Tian Chua, party Youth leaders Mohd Ezam Mohd Nor and Saari Sungib, Free Anwar Campaign (Freeanwar.com) webmaster Raja Petra Raja Kamaruddin and social activist-cum-malaysiakini columnist Hishamuddin Rais

Similar applications on behalf of two others, Keadilan youth leaders N Gobalakrishnan and Abdul Ghani Haroon, who were nabbed outside Kuala Lumpur, are being heard at the Shah Alam High Court today.

Another Keadilan leader Dr Badrul Amin Baharom was detained last Friday while the party’s youth secretary, Lokman Adam was arrested early yesterday.