Double Jeopardy and no political or Judical Justice. Minority and human rights lawyer in the dock even after 14 months of ISA imprisonment without trial and continuing indefinitely thereafter - P. Uthayakumar, Kemta Prison, Kemunting @ Malaysia ’s Guantanamo Bay (3/2/2009).
Intoduction
A law school in England from 1984 onwards, I was taught that Article 8 of the Federal Constitution in tandem with fundamental and Universal Human Rights Principles, guarantees equality and equal opportunities before the law and especially so prohibiting institutional racial and religious discrimination. I genuinely believed in these ideals. But what I did not realise was that under the UMNO controlled Malaysian government, Article 8 was meant to be more for decoration or puppet shadow play “wayang kulit”. UMNO never seriously intended Article 8 to be put into practice especially so when it concerned the approximately 99% of the poor and underprivileged third, fourth, fifth and even sixth generation Malaysian born Indians.
Long walk for justice
Having developed these ideals of justice during my student days I began the long walk for Justice from about the time I had started reading in chambers some eighteen years ago, mostly under the Police watch NGO banner and with just a handful of volunteers . For the first ten years or so of my legal practice and legal and especially Indian minority rights activism the UMNO controlled Malaysian authorities generally left us alone because they may have deemed our struggle. ‘a cry in the wilderness’. After the first ten years of “pioneer status” from 2003 onwards was arrested, detained and charged for criminal intimidation of a police Chief Inspector during court proceedings and the last being for two sedition charges and a few more in the pipeline. This my final arrest under the ISA was the tenth arrest effected on me.
UMNO “put me to sleep”
But when the banks unexpectedly and unprecedentedly burst with the about 100,000 People Power Makkal sakthi Hindraf Rally on the 25th day of November 2007, UMNO to teach me and the Indians a lesson never ever again to question the UMNO master (tuan) opted for “Summary Justice” and “put me to sleep” with effect from the 13th day of December 2007. By imprisoning me and the three other Hindraf lawyers without trial for two years and continuing indefinitely thereafter under the draconian Internal Security Act (ISA) at the Kemta maximum Security Prison, Kemunting @ Malaysia ‘s Guantanamo Bay .
ISA originally meant to fight organised violence
The drafter of the ISA the late Professor R.H.Hickling in an interview in the New Sunday Times of 30/7/2006 had said that “the (ISA) Act was only intended against communist insurgents and those bent on your armed struggle Heckling further said that the ISA was being used against people for whom it was not intended” “it was designed to be more limited in it’s scope than it is at the moment”. Organised violence is the key to this preamble, but a lot of people who had nothing to do with organized violence at all were arrested” (and detained under ISA). “ I would want judicial review at all times”. “But the Malaysian Courts almost always” has had the interest of the government alone above everything else” and does not follow the law. ( Internal Security Act ) In short we had been arrested and detained without trial under the ISA in just because I had led/ organised a successful peaceful 100,000 people Hindraf Rally which right is given to me by virtue of Article 10 of the Federal constitution which guarantees the Right to Assemble Peacefully without arms and having championed equality and equal opportunities .
But UMNO follows neither the law nor has any respect for in particular Article 5 ( Liberty of the person ) Articles 8 and 10 of the Federal Constitution. But to justify this our ISA arrest and detention UMNO without any basis at all whatsoever and in a vacuum linked us to the LTTE terrorist organisation. But our hundreds of letters, memorandums etc running into thousands of pages and addressed to the Malaysian authorities proves our peaceful, lawful, constitutional, legitimate and non violent struggle. (A simple Google search would reveal all these assertions).Terrorists use the butt of their guns and not the nip of their pens. When I filed an RM 100 million civil suit against Attorney General, Inspector General and the UMNO controlled Malaysian government for this LTTE link, allegation, without even having the guts to file in their Statement of Defence and outliving their evidence of our alleged LTTE links, have applied to strike out my civil suit. Based on many almost similar cases these authorities usually succeed before the Malaysian Courts. How else then do I clear my name with having links with the LTTE ?
“Ethnic Cleansing”
Having picked up more and more courage gradually over the years, in the year 2001 I had taken up my struggle to a higher level by championing the cause of Kampong Medan “ethnic cleansing” case where the Indians were specifically targeted, slashed and killed for fifteen days in a row with effect from the 8th day of March 2001 to the 23rd day of March 2001 Five Indians were mercilessly killed and about 100 others were inflicted with grievous bodily injuries. This is the worst case of Human Rights violations in the history of Malaysia but like almost all other injustices concerning the Indians in this country this tragedy received the least attention even by the Malaysian opposition parties, almost all NGOs’, civil society and the print and electronic media and not in accordance with it’s gravity and seriousness. This “ethnic cleansing” exposure to the British Prime Minister Gordon Brown and the Commonwealth Heads of Government Meeting in Harare on the 24th day of November 2007 and the other of UMNO’S atrocities especially against the Indians found anger in UMNO and thus this malicious and vindictive criminal prosecution for sedition before the Kuala Lumpur Sessions Court today. This sedition prosecution is politically motivated and UMNO has no shame about it.
Death in Police Custody – Approximately 90% Indians
In 2003, the incidences of death / killings in police custody shot up to about one in every two weeks. The instances of police shooting dead mere suspects shot up to about 1.3 persons every week. Based on the latest count it is estimated that up to about 90% (60% in 2003 as per our Memorandum to the Police Royal Commission dated 4/3/04) of the Malaysian victims there to are the Indians with the latest killing in their police custody being that of A.Kugan (22).The Attorney General after the Indians public pressure has unprecedentedly acknowledged and classified as a murder case. The record otherwise stands that there has been zero prosecution of even a single police man for murder in a killing in a police lock up case pursuant to section 302 of the Penal Code. But the criminal police in Kugan’s case are still on the loose on desk jobs. They have not been detained and locked up like any other murder suspect? Why? Is Malaysia a Police State or are the police above the law mindset allowed to Prevail.
The new PKR Selangor State Government revealed at the Selangor state Assembly on 29/10/08 that from 2004 to 2007, 96 Hindu temples had been demolished in the state of Selangor alone (Tamil Nesan 30/10/08 page 2). From this we estimate that an average one Hindu temple is being demolished in Malaysia every week. The segregation of the Indians from the national mainstream development of Malaysia and the denial of equal opportunities thereto on a day to day basis right from the Development Programmes for the hardcore poor to kindergardens, Tamil schools, skills training institutions, fully residential secondary schools, fully residential science colleges institutions of Higher Learning, Universities, scholarships, job opportunities in the public and private sectors, banks and government agency business loan, business opportunities, licenses, permits, and right up to the multimillion and billion Ringgit Malaysia worth of government projects and mega projects and contracts. All the above collectively if not the Kampong Medan tragedy on it’s own alone amounts to “ethnic cleansing”
Double Jeopardy
But having already punished me with fourteen months of imprisonment also for the aforesaid “ethnic cleansing” allegations as per the charges laid out in my ISA charge sheet , I am now being subject to double jeopardy by this continued criminal prosecution before this court today. I am in the dock today for having championed the aforesaid Indian minority and human rights concerns which in UMNOs’ Malaysia conveniently and politically motivated and for their continued political survival has been classified as a crime, a threat to National Security and public order warranting our imprisonment under the ISA without trial and without the due process of the law.
“Boot Camp” for judges
What justice can I expect from the Malaysian Courts when the most senior of the 48 High Court Judges were sent to the “boot camp” with selected judges and judicial officers “to indoctrinate” those attending to hold the view that the governments’ interest was “ more important than all else when we are considering our judgments (NST 11-6-08 at Page 6). This said High Court Judge has since resigned shortly thereafter. Be that as it may I would expect this sessions court to allow me to tender and to refer without obstruction also from the Deputy Public Prosecutor the hundreds of the aforesaid letters, memorandums, gory photographs of the “ethnic cleansing” etc running into thousands of pages.. Justice must not only be done but must manifestly and undoubtedly be seen to be done.
Only Seven Political Detainees under Pak Lah’s Regime
Throughout Abdullah Badawi’s five year term as Prime Minister the only political detainees imprisoned under the ISA has been Sin Chew Daily’s Tan, DAP Member of Parliament Teresa Kok and blogger Raja Petra Kamaruddin besides the four HINDRAF lawyers of up to seventeen years standing as legal practitioners. However because of the socio political and public pressure on UMNO and the courts, Tan was released within eighteen hours, Teresa Kok within five days both by UMNOs’ Home Minister. Raja Petra Kamaruddin was set free by the Shah Alam High Court within fifty-five days. But when comes to the Indian HINDRAF lawyers cum ISA political prisoners, a different set of rule applies. These HINDRAF lawyers have been detained for about fourteen (14) months now but neither the Home Minister nor the courts have set us free as was done to Tan, Teresa Kok and Raja Petra.
The political reality is because of the strong Chinese and Malay public and political pressure, UMNO and the Malaysian Courts may have set free Tan, Teresa Kok and Raja Petra because they belong to majority and economically powerful community who would have some bearing on their communities vis a vis, the political landscape of Malaysia and UMNOs’ continued political survival. But when it concerned the Indian HINDRAF lawyers the very same public and political pressure on UMNO or the courts have no or very little bearing because the Indians in Malaysia are a politically and economically weak and insignificant community. Even the only Chinese non political ISA detainee was “abruptly” and “prematurely” released early last month just before the Kuala Terengganu by elections to fish Chinese votes and to do damage control after ex ISA detainees Teresa Kok, Raja Petra and Hishamuddin Rais’ Campaign in Kula Terengganu. On my part I have made three (3) Habeas Corpus applications before three High Court Judges and one appeal to the Supreme Court but to no avail. When justice is not seen to be done to even lawyers, what justice can the common man expect?
Silent heart attack and deteriorating health
Throughout these fourteen (14) months of my imprisonment under the ISA my health condition has deteriorated. Sometime on or about January 2008 I believe I had suffered a silent heart attack at a time when I was denied my diabetic medication. The Specialist Consultant Physician and all the other doctors who had attended to me when I was admitted to the Taiping General Hospital in January 2008 had not disclosed to me my heart condition that was hypo kinetic after an ECG examination was conducted. My blood test had also revealed an excessive level of keystones which could have triggered a heart attack. It was only during my second admission at the Taiping General Hospital in April 2008 that this hypo kinetic condition was “leaked” to me by another sympathetic hospital personnel.
I urgently need specialist Cardiac care and attention from a reputable Hospital but the UMNO Government deliberately deny me despite an emotional plea by my mother to the Prime Minister at his offices in Putrajaya. In prison I have contracted two kinds of skin diseases namely allergy and idiopathic gutted hypomelanosis. My pre existing diabetes and after having been a diabetic patient for about fourteen years and which had got worse with sugar being added to my food from time to time and diabetic diet not served to me right up to this day despite having lodged numerous formal, verbal and written complaints to the Kemta Prison Directors, Home Minister and even the ISA Advisory Board.
I have also been diagnosed as a high blood pressure patient. Having been forced to sleep on a one inch thin foam mattress on a cement floor, I have developed arthritis in both my knees and lumbar spondalysis to my backbone. This lumber spondalysis condition was also never disclosed to me by the Orthopedic Surgeon and I had only learnt of the same when I was perusing an Affidavit of the Consultant Physician. I believe my eye sight may also have been affected because of my worsening diabetic condition. My request to be examined by an eye specialist was denied. When this matter attracted media attention, the Malaysian Human Rights Commission (Suhakam) conducted a so called “Inquiry” at Kemta Prison. The relevant government hospital Specialist, Director, doctors, prison personnel, police special branch and just about everyone else was interviewed except myself.
An Indian Suhakam Commissioner was hurriedly dispatched by UMNO to call for a press conference and cleared the Taiping General Hospital , prison and police special branch of any wrongdoings. This is how Justice and Human Rights is upheld in Malaysia – without giving me a hearing!. In the last two months (the latest is) corn having developed on both my leg toes. The tip of my right leg toe has lost it’s sense of touch. Which I suspect may be the beginning of a possible diabetic gangrene which can lead to a leg amputation. My gums are also infected and swollen, being consistent with worsening diabetes.
Independence of government hospital compromised
The aforesaid difficulties with the Taiping government general hospital Specialists and doctors is I believe because of the police special branch and the prison authorities’ interference and having caused the independence of these medical doctors and specialists to be compromised. I have applied for my medical reports, medical notes, and medical test results from the Taiping General Hospital the Prison authorities and the Home Minister. They all have refused to furnish me the same and neither was the same exhibited in the High Court proceedings that.
I had filed and despite me specially challenging for the same to be exhibited. This government hospital and police collusion experiences I have seen happening to my clients in my eighteen years of legal practice especially so in the scores of death/ killing in police custody cases, shooting, dead by police and other police beating up and torture cases that I have attended to. But little did I realise that I myself would become a victim one day! The latest example is that of A. Kugan (22) whose post mortem report did a Taiping general hospital style cover up for the police by stating the cause of Kugan’s death as lung congestion when even the Attorney General subsequently under public pressure had reclassified the case as murder based on the very badly bruised body of Kugan which was exposed by the people power Hindraf Makkal Sakthi forces to the media and on the internet. They had succeed in beating the police before they could do a full scale police cover up. Thus the Inspector General of police and the UMNO Home Minister’s anger.
Prison protest – refusing medical treatment
As a mark of protest and in furthertherance also of my struggle against the interference with and compromising the government hospital doctors and specialist in my case and scores of previous cases like Kugen, I had with effect from July 2008 to date refused to be treated by any of these government hospital doctors and specialist whose professionalism I would have no reason to doubt had I been treated by them in a non prisoner to doctor capacity. I am prepared for the worst and as matter of principle. I was mentally prepared when I started this struggle and remain as strong as ever because I believe in justice. When these doctors and specialist had refused to exhibit their medical and specialist reports, medical notes, and tests thereto I had created a doubt. But even the learned High Court Judge did not give me the benefit of at least this doubt and had refused to set me free on medical grounds at least if not judicial grounds which would have enabled me to receive independent medical treatment overseas. Independent Judiciary!
No regrets – and the struggle continues.
But I have no regrets in this my struggle for equality, equal opportunities, equal justice and towards a non racial and religious discriminatory Malaysia especially so for the ethnic minority Malaysian Indian community who are suffering from the worst forms of atrocities under the UMNO controlled Malaysian government regime. I am aware that UMNO can imprison me as long as they like, in fact technically for the whole of my natural life if they want to. But irrespective of my imprisonment the HINDRAF people power Makkal Sakthi struggle for justice, peace and equality and equal opportunities and prosperity mutual respect, co-existence and dignity will go on under the leadership of HINDRAF chairman P. Waytha Moorthy. I am delighted to note that the Hindraf people power Makkal Sakthi forces are no longer frightened of UMNO, their police force, army, Attorney General UMNO abusing the Malaysian Judiciary for their continued political survival. The latest case in point is the struggle for justice for A.Kugan which is Res Ipsa loquteor (the facts speak for itself). I have no regrets in this my HINDRAF people power Makkal Sakthi struggle. As a lawyer in particular, I stand for justice, fair play and equity.
Appeal to Court
Wherefore in the circumstances, I hereby pray that: -
1) The sedition charges against me be dismissed on the grounds of the same being groundless further to section 173 (g) of the Criminal Procedure Code.
2) I, Uthayakumar S/O Ponnusamy hereby be set free by virtue of the courts inherent jurisdiction.
3) Such other reliefs deemed fit by this Honorable Court.
Thank you
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