Rais Yatim should practise what he preaches and ask Cabinet on Wednesday to respect the  spirit of “substantive justice” of the Federal Court decision on the unlawful detention of  Mohd Ezam, Tian Chua,  Saari Sungib and Hishamuddin Rais by immediately revoking their ISA detention order

(Penang, Monday): 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 words. 

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 

He said: 

"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. 

He said  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 weapons. 

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 detention. 

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 country. 

There is another reason why Rais should raise the Federal Court decision on the unlawful ISA detention of the four on Wednesday’s Cabinet meeting. 

In 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. 

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)

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.  

In 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.

(9/9/2002)