A Black Day for Democracy

by Lim Kit Siang

Justice S. Augustine Paul�s dismissal of the habeas corpus application by Parti Keadilan Nasional Youth chief Mohd Ezam Mohd Nor, its vice president Tian Chua; former JIM Chairman Saari Sungib, Free Anwar Campaign director Raja Petra Kamaruddin and social activist Hishamuddin Rais did not come as a surprise but his habeas corpus judgement is a black day for democracy and human rights in Malaysia in the 21st century.

Paul is fully within his province to claim that it was for the detainees to show that the Internal Security Act (ISA) powers had been exercised mala fide and that the five applicants had failed to prove that the Inspector-General of Police, Tan Sri Norian Mai�s act of arresting the five was mala fide and was not in accordance with the Act.

Paul should have confined himself to what he had himself described as the court�s role �to ascertain what the law is and it cannot afford, or should afford itself, the luxury of going beyond that� as he then can do no wrong.

Unfortunately, in his judgement, Paul had trespassed these limits to involve himself in controversial issues on human rights in the public domain, and a judge who strays into public controversies whether by word or deed must expect public reactions.

Paul did this when he touched on a Press statement by the Human Rights Commission of Malaysia (Suhakam) which called on the authorities to release the detainees immediately and to charge them in open court if they had committed any offence.

The judge said that it would be inappropriate for a person or body of persons to call for the release of persons detained under the ISA and have them prosecuted in an open court as it amounts to an unlawful interference with the lawful exercise of discretion by the detaining authority.

He said, �While I am convinced that Suhakam acts with the best of intentions, it must be realised that it is of prime importance that issues of what the law is, and what it can and should or ought to be, are kept separate so as not to risk confusing the public and, unwittingly, adding the proverbial oil to the fire.�

Paul�s view that it would be inappropriate for anyone to call for the release of ISA detainees or have them charged in open court as it amounts to unlawful interference with the lawful exercise of discretion by the detaining authority is a most preposterous proposition which even the Attorney-General�s Chambers had not dared to advocate since the enactment of the ISA in 1960 � as it would logically mean that all who make such calls could be prosecuted under the Penal Code for the offence of obstructing public servants in the discharge of their public functions!

Is Paul seriously suggesting that the Suhakam Chairman, former Deputy Prime Minister Tan Sri Musa Hitam and other Commissioners like former Chief Judge, Tan Sri Dato Haji Anuar bin Dato Haji Zainal Abidin, former Federal Court judges Tan Sri Harun Mahmud Hashim and Dato� Mahadev Shanker, had committed criminal offences in making such a call and he is offering unsolicited advice to the Attorney-General that she should consider arresting and prosecuting them?

And what would Paul propose the government should do with regard to foreign governments which make similar calls in similar circumstances � should Malaysia break diplomatic relations with them for violating the laws of the country?

By Paul�s logic and reasoning, it would also be improper for any MP to question the propriety of any ISA arrest in Parliament � which would subvert the very principle of parliamentary democracy in the country.

Paul is fully within his province when he decided that the IGP Tan Sri Norian Mai owed no duty to make any disclosure of the reasons for the ISA arrests, but he must be prepared to be subject to public scrutiny and comment when he said that he agreed with the Senior Deputy Public Prosecutor Datuk Abdul Gani Patail that the Inspector-General of Police must be commended for having made a partial disclosure of facts in his press statement dated April 11 for the reasons for their detention � as there is very strong reason for a reasonable Malaysian to regard what Norian Mai had said as mere �fairy tale� unsubstantiated by any iota of evidence.

When Paul said that it is not the court�s function to act as a court of appeal from discretionary decision of the executive and inquire into the grounds upon which they came to the belief that it was necessary in the interest of the security of Malaysia to detain a person, is he stating his interpretation of the present law or his personal philosophy which is blind to abuses of discretionary powers?

It would be most unfortunate if Paul�s habeas corpus judgement is regarded as a carte blanche by the government that it could wantonly misuse the Internal Security Act against anyone it chooses without fear of any legal check or restraint leading to the police running riot in ISA arrests.

Paul�s claim that the application made by the defence team to disqualify him from hearing the matter amounted to casting aspersions on the appointing authority, the Yang di-Pertuan Agong, is most misguided.

I am reminded of an objection by a Cabinet Minister in the seventies to my amendment in Parliament to the Motion of Thanks to the Yang di Pertuan Agong for his Royal Address, which is the occasion for a policy debate on government policies, on the ground that such an amendment tantamounted to disrespect to the King � which was not only baseless and untrue but betrayed the Minister�s abysmal ignorance about Commonwealth parliamentary practices and the Malaysian Constitution.

Nobody would fault Paul for stating 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, but there is no need for him to bring in the Yang di Pertuan Agong.

One is reminded of the defence by Tan Sri Abdul Hamid Omar to the objection of his chairing the Judicial Tribunal for the removal of Tun Salleh Abas as Lord President in 1988 when he was Acting Lord President, as he had a vested interest to succeed Salleh in the event that the Tribunal sought to recommend the latter�s removal.

This is described in Rais Yatim�s 'Freedom Under Executive Power in Malaysia':

Hamid later defended his acceptance of the chairmanship by saying that as he was under �royal command�, he could not flinch from his duty. It is ironical for a judge of his stature and experience not to have appreciated the fact that this was not a prerogative command. His appointment by the Agong was in reality an appointment effected through the Prime Minister who constitutionally advises the King. Hamid should have declined the appointment as requested by the Bar Council on account of the fact that his involvement violated one of the rules of natural justice. (p. 336)