Home Minister, Datuk Seri Syed Hamid Albar’s announcement in Kota Kinabalu last night that the Home Ministry will appeal against the Shah Alam High Court decision on Friday to free Malaysia Today website editor Raja Petra Kamaruddin from detention under the Internal Security Act (ISA) is most deplorable and reprehensible.
It shows Hamid’s utter contempt for the fundamental concept of the rule of law and the most rudimentary commitment to human rights in the country.
In ordering Raja Petra’s release after a 56-day ISA detention, Shah Alam High Court judge Justice Syed Ahmad Helmy Syed Ahmad ruled in the blogger’s habeas corpus application that the Home Minister acted outside his powers in detaining Raja Petra under the ISA, as the grounds given for Raja Petra’s detention were insufficient rendering the ISA detention unlawful.
Syed Ahmad Helmy held that although Section 8 of the ISA on the detention order by the minister barred judicial review, there was a procedural non-compliance by the Minister resulting in an “ultra vires” order.
As illustration, the judge gave the example that the minister cannot act in bad faith to detain a person who decided to colour his hair red.
In actual fact, Hamid acted mala fide in a very substantive manner in issuing a detention order under Section 8 of the ISA late in the night of September 22 not because Raja Petra constituted a threat to national security but to frustrate the administration of justice and the rule of law by “killing off” Raja Petra’s earlier habeas corpus application.
Raja Petra’s first habeas corpus application to challenge the legality of his ISA detention on Sept. 12 under Section 73 of the ISA was slated for hearing at the Kuala Lumpur High Court on Sept. 23.
When Raja Petra’s lawyers, his wife Marina Lee Abdullah and family members and supporters turned up in court on the morning of Sept. 23 for the harbeas corpus hearing, they were shocked to learn from the Senior Federal Counsel, Abdul Wahab Mohamad that the issue had become academic and the application should be struck out as Raja Petra was no longer detained under Section 73 (which permits judicial review) but under Section 8 (which bars judicial review except for procedural defects).
Raja Petra had also been summarily packed off to the Kamunting Detention Centre to start his two-year formal detention.
I had on Sept. 24 condemned Hamid’s ministerial detention order of Raja Petra, “hours before his habeas corpus application hearing at the Kuala Lumpur High Court” on Sept. 23 as “a gross violation of human rights, a blatant abuse of power and downright contempt of court by the Home Minister and a travesty of the rule of law in Malaysia”.
I had said: “One would have expected that being a lawyer by training, the Home Minister Syed Hamid Albar would have greater regard, respect and understanding of the principles of a just of rule and would not do anything to frustrate the legal process as in RPK’s habeas corpus application hearing yesterday. But Hamid has proved everyone wrong.
”The Attorney-General Tan Sri Abdul Gani Patail should explain whether he was privy to the Home Minister’s decision on Monday (Sept. 22) night to frustrate the legal process over RPK’s habeas corpus application hearing yesterday (Sept. 23) challenging the police detention under Section 73 of the Internal Security Act (ISA) by the simple but most cynical and irresponsible expedient of the Minister signing a formal detention order under Section 8 of the ISA.
”Was the Attorney-General consulted and his agreement sought to this irresponsible ploy to frustrate RPK’s habeas corpus application and did he advise the Home Minister against such flagrant contempt of court and to trust in the impartiality and integrity of the judicial system to pronounce on the legality of the police detention of RPK under the ISA under Section 73?
”Whose idea was it that the Home Minister should abuse his powers to expedite the formal detention of RPK under Section 8 of the ISA in order to frustrate RPK’s habeas corpus application, when RPK had been detained for only 10 days under Section 73 which provides for a 60-day police custodial detention?”
There had been thundering silence from Hamid, Gani Patail as well as the MCA/Gerakan Ministers and leaders who had been staging a “song and dance” about their new-found opposition to the ISA, demanding a review if not repeal of the draconian detention-without-trial law.
The Shah Alam High Court decision to free Raja Petra, which is a positive reflection in the last five months of the Abdullah premiership, should be the occasion for the Cabinet to undertake a full review of the draconian laws in the country as well as to uphold the doctrine of the separation of powers by repealing all legislation which institutionalizes the executive usurpation of judicial powers and independence by excluding judicial review of abuses of executive power, like Section 8 of the ISA.
However, Hamid seems to be unrepentant in refusing to understand the changes demanded by Malaysians after the March 8 “political tsunami” for a full restoration of the just rule of law, a truly independent judiciary and a total end to all forms of abuses of executive power.
I call on the Cabinet to overrule Hamid’s decision to appeal against the Shah Alam High Court decision to free Raja Petra from ISA detention, which can only mean that Hamid wants Raja Petra to be re-arrested and sent back to Kamunting Detention Centre.
The Prime Minister Datuk Seri Abdullah Ahmad Badawi should restrain Hamid from proceeding with the appeal against the Shah Alam High Court decision to free Raja Petra until there is a full review of the matter by both the Cabinet as well as Parliament.
Will the MCA and Gerakan Ministers and leaders stand up now to oppose Hamid’s decision to appeal against the Shah Alam High Court decision?
The Parliamentary Caucus on Repeal of ISA and release of all ISA detainees will hold an emergency meeting in Parliament tomorrow to discuss the issue.
There will be two candle-light “No to ISA” vigils tonight - one at Taman DR Seenivasagam in Ipoh at 8 pm and another at Padang Timur Petaling Jaya (near Amcorp Mall), which have now multiple objectives, viz:
· No to ISA;
· Release all ISA detainees;
· First Anniversary BERSIH rally for a clean, fair and democratic electoral system.
· No to any appeal against Shah Alam High Court decision to re-arrest Raja Petra and send him back to Kamunting Detention Centre;
· Restore doctrine of separation of powers among the Executive, Parliament and Judiciary; and
· Repeal all laws with “no judicial review” clauses to subject all forms of executive abuses of power to legal challenge and judicial review.
Lim Kit Siang
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