CHEERS could be heard reverberating all around following the unexpected Shah Alam High Court ruling on Nov 7 ordering the release of blogger Raja Petra Kamarudin (RPK) from ISA detention, but many people are not ready to call it the day of reckoning for the country’s judiciary.
While many RPK supporters are elated or simply relieved over the court’s decision, chances are the online writer’s release from detention could hardly be seen as precedent setting that will influence all other judges to comb through the executive’s substantive actions, but for procedural matters.
As if on cue, five days after RPK’s release from Kamunting, another High Court reiterated the point that had been consistently ruled upon by higher courts.
Ruling on the continued detention of Kota Alam Shah assemblyman M Manoharan under the ISA, High Court judge Justice Mohamad Zabidin Mohd Diah stated that, as it was reported, “our law only allows the court to enquire whether there is procedural non-compliance in the detention.”
Just like RPK, Manoharan too had applied for a writ of habeas corpus (in essence asking the court to rule in the presence of the accused his detention is unlawful), challenging the Home Minister’s two-year detention order (without trial) under Section 8 (1) of the Internal Security Act (ISA).
Incidentally, RPK was free to attend Manoharan’s court case that day, though his physical presence did little, and could not reasonably be expected to dissuade the judge from ruling any other way.
In RPK’s habeas corpus application itself, Justice Syed Ahmad Helmy Syed Ahmad reaffirmed the legislation, stating that Section 8 of the Act was not unconstitutional — meaning the provision backed the executive’s constitutional rights to act against anyone who was a threat to national security though forsaking fundamental civil liberties.
As was reported, Justice Syed Ahmad Helmy also reaffirmed the previous rulings that the Home Minister’s decision could only be reviewed under “procedural non-compliance as provided under Section 8B(1)”.
Section 8B expressly forbids judicial review of the minister’s wide discretionary power under the Act, except on procedural requirements.
Not only that, Justice Syed Ahmad Helmy also said “mala fide (bad faith on the part of the Home Minister) is not procedural non-compliance under the ISA”.
The judge even went on to say that the spirit of the Act was to counter not only communist or subversive but any other threat to national security.
The Home Minister is not wrong in wanting to seek clarification from the court on how then it came to rule that the grounds for the detention order did not fall under the scope of Section 8 (1) and hence, was unlawful.
News reports on the judge’s rulings were not clear. Did Justice Syed Ahmad Helmy rule that RPK was simply not a threat to national security or did the judge rule that the minister abused his discretionary power, and if so, how?
Or, as DAP veteran Lim Kit Siang may have implied, was it a case of the minister acting too hastily in signing the detention order when RPK “had been detained for only 10 days under Section 73 (of the ISA) which provides for a 60-day police custodial detention?” This seems to be not the case as the Act appears to allow the minister to act notwithstanding the custodial detention.
If the decision was made strictly because the minister’s preventive action did not follow proper and stipulated procedures, then nothing much has changed. Worse still if the judge was not misquoted, even bad faith on the part of the minister could not be questioned.
Perhaps that is why some understandably remain cautious and reserved in their reactions towards RPK’s release. Furthermore, RPK still has a trial hanging over his head, for allegedly publishing seditious articles on his website.
Yet, the rare High Court decision was apparently seen as significant enough to warrant some reservation of hope, with many quarters stating that the judiciary may finally be moving in the right direction.
Bar Council president Datuk Ambiga Sreenevasan said the decision “gives us hope that our judiciary has acted and will act with courage, integrity and independence when the liberty of an individual is threatened by the arbitrary use of power under the ISA”.
Merely days before the RPK habeas corpus application, former minister in the prime minister’s department Datuk Zaid Ibrahim had lamented the “mystifying” and “worrying” reluctance of the courts to intervene in matters involving the executive.
He had argued that the constitutionally guaranteed judicial authority being vested in the High Courts meant the judiciary’s review power had been preserved from encroachment by the executive and legislature.
Zaid also challenged the judges to courageously challenge the constitutionality of the executive’s action even it it invoked its wrath.
No one could argue against the importance of the independence and impartiality of the judiciary, particularly in countering executive abuse of power and excesses.
Given the minister’s wide power in denying an individual’s fundamental liberties with an indefinite detention period under the ISA, this state of affairs cannot be left to chance or individual judges’ personal dispositions in acting with courage or otherwise.
The rule of law has to find pre-eminence in the formation of a civil society. The current parliament has to work on a comprehensive review and reforms of the judiciary, including the restoration of the doctrine of separation of powers under the original Article 121 (1) of the Federal Constitution, which gives full judicial power back to the courts.
The country cannot afford to leave the rule of law and democracy to chance.
Thomas Soon
The Edge
17/11/08
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