(Penang,
Saturday): DAP calls for the immediate release of the Reformasi Four –
Mohd Ezam Mohd Nor, Tian Chua,
Saari Sungib and Hishamuddin
Rais - from the Internal Security Act (ISA) or the unanimous
Federal Court habeas corpus decision yesterday will be a standing
indictment on the system of justice, the rule of law, undemocratic governance
and Suhakam in Malaysia.
The Federal Court decision, encompassing four unanimous judgments in holding
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 and that their ISA detention was unlawful,
should have been a landmark decision for human rights and restoration of
confidence in the system of justice and lauded
nationally and internationally.
Instead, it received brickbats instead of bouquets because of its lack of
judicial courage to free the Reformasi Four
from ISA by resorting
to an artificial and schizophrenic interpretation of the ISA where the
police detention of the Reformasi Four under Section 73 could be quashed without
at the same time quashing their ISA detention under Section 8 on the order of
the Home Minister.
As Salleh Abas, LP, said in his judgment in Theresa Lim Chin Chin & Ors v
Inspector General of Police (1988), “there is only one preventive detention”
and 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.
He said:
“We are of the opinion that there is only one preventive detention and that is based on the order to be made by the Minister under s.8. However, the Minister will not be in a position to make that order, unless information and evidence are brought before him, and, for this purpose, the police is entrusted by the Act to carry out the necessary investigation and pending inquiries, to arrest and detain a person in respect of whom the police has reason to believe that there exists grounds which would justify the detention of such person under s 8. 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, which the Attorney-General referred to as the initial stage in the process leading to preventive detention.”
The Federal Court yesterday, however, “ran 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.
Any other artificial or schizophrenic interpretation of the ISA, as in
declaring the police as having acted unlawfully in detaining the Reformasi Four
but yet not releasing them from the ISA, run contrary to common sense and the
general understanding of Malaysians as to what is justice and fair play, which
could only diminish public awe and respect
in the system of justice, the rule of law and democratic governance in the
country. .
Furthermore, the Federal Court has in this case been the cause of a grave
miscarriage of justice when it should be the fountain of justice in Malaysia.
The Reformasi Four were detained by the police under section 73 of the ISA in
April 2001 and their habeas corpus application were dismissed
by the Kuala Lumpur High Court Judge, Justice S. Augustine Paul on April
25 last year.
If the Federal Court had heard and decided on their appeal against the High
Court decision before the end of the sixty-day detention under section 73 and
the issue of the Ministerial order of detention under section 8, the Reformasi
Four would have been restored their liberties and freed from the unlawful ISA
detention under section 73.
In the event, the Federal Court not only failed to hear and decide the habeas
corpus appeal of the Reformasi Four within the relevant time span of the
application of section 73, but also failed to hold that their section 8
detention is equally null and void as their section 73 detention – which is a
double miscarriage of justice.
Will the Chief Justice, Tun Mohamed Dzaiddin Abdullah, introduce immediate judicial reforms to ensure that habeas corpus appeals against detentions under section 73 of the ISA are heard and decided by the Federal Court with dispatch before the issue becomes academic so that the Federal Court will not continue to be the source of miscarriage of justice when it should be dispensing justice?
The advice by Dzaiddin that the
Rerformasi Four file another habeas corpus application, as the Federal Court’s
unanimous decision was confined to section 73 and did not apply to section 8 of
the ISA, is not helpful at all, especially as the 1989 amendments to the ISA had
excluded judicial review, including proceedings by way of habeas corpus,
declaration, injunction, mandamus, prohibition or certiorari, of any decision of
the Minister under section 8.
This exclusion would not have applied
if the Federal Court had logically decided yesterday that their ISA detention
under section 8 could not stand as their initial detention under Section 73 was
unlawful.
The Federal Court judgment has also implications not only to the system of justice, but to the rule of law, democratic governance and Suhakam.
As the Federal Court has decided that the ISA detention of the Reformasi Four is unlawful and mala fide, can a government which respects and upholds the rule of law and democratic governance stick to technicalities and ignore its implications?
This is why the Home Minister, Datuk Seri Abdullah Ahmad Badawi should demonstrate his commitment to the rule of law and democratic governance by releasing the Reformasi Four from ISA.
Similarly, Suhakam cannot keep silent on the Federal Court judgment and the ISA detention of the Reformasi Four and must take a strong stand on the side of justice, rule of law, human rights and democracy.
(7/8/2002)