Aliran Letter to the Media
Federal Court Ruling Defies Logic
What could have been hailed as a laudable landmark decision fell short where it mattered most. The Federal Court, though unanimously ruling on September 6 that the initial 60-day detention of five opposition leaders on April 10 last year under Section 73(1) of the Internal Security Act (ISA) was unlawful and in bad faith, did not order their release.
It defies logic and disturbs our conscience that the Bench should conclude that it had no power to decide whether the subsequent two-year detention order by the Minister under Section 8(1) of the ISA was, as a consequence, unlawful. It is baffling that they should advise the appellants to file another habeas corpus application. Anyone with any sense of justice must be wondering how it is possible for the initial detention to be unlawful and the subsequent one to be lawful. They will be asking why there is a need for further adjudication when the initial detention was unlawful and in bad faith.
Is it not true that the initial 60-day detention set the stage for the two-year detention order? Is it possible to serve a two-year detention order without a person having been detained under Section 73(1)? It is our contention that it is not possible. Section 73(1) must yield incriminating evidence to satisfy the Minister to make an order that a person be detained for any period not exceeding two years. The sole purpose of Section 73(1) is clearly to establish the basis for the subsequent two-year detention under Section 8(1).
The Minister simply cannot make an order based on a subjective notion that a person is a danger to the security of the country. The Minister must be satisfied that the detention of any person is necessary and, under the Act, he can only come to this conclusion based on the outcome of the investigations carried out under Section 73(1).
Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe -
(a) that there are grounds which could justify his detention under Section 8 ..
The Federal Court's finding is that "the detention was not for the dominant purpose of Section 73 - to enable the police to conduct further investigations regarding the appellants' acts and conduct which were prejudicial to the security of Malaysia". The Federal Court ruled that "their detention was merely for intelligence gathering which had no link with national security".
The Federal Court found "much force in the contention of the learned counsel for the appellants that the detentions were for the ulterior purpose and unconnected with the national security". Having found so much damnable and damning evidence - that the detentions were for the ulterior purpose and unconnected with national security - which does not support or justify an order under Section 8(1), it is mystifying and totally devastating for the Federal Court to decide that "it had no power to decide whether the two-year detention of the appellants as ordered by the Minister under Section 8(1) was, as a consequence, unlawful".
It is not without merit that the latest Aliran Monthly carries a back-page article entitled, "Is there hope in our judiciary".
P Ramakrishnan
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