Malaysia: the delicate balance between security and due process

Transcription

Malaysia: the delicate balance
between security and due process
A report on the observation of the habeas
corpus application of Raja Petra Kamarudin
First hearing: 22 October 2008
Held before the Shah Alam High Court of Malaysia before Presiding Judge Datuk
Syed Ahmad Helmy Bin Syed Ahmad
Second hearing: 11 and 17 February 2009
Held before the Putrajaya Federal Court before Justices Dato’ Bentara Istana Nik
Hashim, Dato’ Augustine Paul and Dato’ Zulkefli Bin Ahmad Makinudin
Third hearing: 23 February 2009
Held before Putrajaya Federal Court before Presiding Judge Alauddin bin Dato’
Mohd Sheriff, Arifin bin Zakaria and Richard Malanjum
An International Bar Association Human Rights Institute Report
supported by the Foundation Open Society Institute and
the Media Legal Defence Initiative
Material contained in this report may be freely quoted or reprinted,
provided credit is given to the International Bar Association
International Bar Association
10th Floor, 1 Stephen Street
London W1T 1AT, United Kingdom
Tel: +44 (0)20 7691 6868
Fax: +44 (0)20 7691 6544
Website: www.ibanet.org
Table of Contents
Introduction
5
Background
7
Malaysian politics
8
Independence of the judiciary
9
History of the ISA
9
The case against Raja Petra Kamarudin
13
Timeline
13
Material facts
14
Applicable law
14
Raja Petra’s arrest under the ISA
15
Grounds for detention
15
Complaints
15
Position of the parties
16
Treatment during detention
16
Public response to the arrest of Raja Petra
Reaction within the Cabinet
17
Reaction from the Human Rights Commission, civil society and the Malaysian Bar Council
17
Reaction of bloggers and the general public
18
Altantuya article
14
17
First observation
19
The hearing
19
The judgment
19
Evaluation of fairness of proceedings
19
The hearing
19
Standards of detention
20
20
Additional concerns
The Internal Security Act
20
The right to habeas corpus
21
Observations and recommendations
21
Second observation
23
The hearing
23
24
Third observation
25
The hearing
25
26
Motion for recusal
26
Other motions
27
Fourth observation
29
The hearing
29
29
Conclusion
31
Annex A: Judgment, 7 November 2008
33
Annex B: IBAHRI Press Release, 7 November 2008
55
Annex C: Judgment, First Appeal
59
Annex D: Judgment, Second Appeal, 9 June 2009
75
Annex E: Relevant provisions of Malaysian Constitution
84
Annex F: Relevant provisions of the Internal Security Act
91
Annex G: Outline Submission for the Applicant, dated 21 October 2008
97
Annex H: Outline Submission for the Respondent
107
Annex I: Motion of Malaysian Bar Council, dated 20 September 2008
149
Annex J: Relevant provisions of the Courts of Judicature Act 1964
151
Introduction
The principle underpinning the basis of trial observation is the right to a fair and public trial, which
can be found in a number of international and regional human rights instruments, including Article
10 of the Universal Declaration of Human Rights and Article 35 of the Statute of the International
Court of Justice. The right to trial observation is provided for in Article 9(b) of the United Nations
Declaration on the Right and Responsibility of Individuals, Groups and Organs of Society to Promote
and Protect Universally Recognised Human Rights and Fundamental Freedoms adopted by the
General Assembly in December 1998. The practice of sending trial observers is well established and
accepted within the international community. The International Bar Association’s Human Rights
Institute (IBAHRI), together with other international, regional and national legal organisations,
frequently sends representatives to observe trials. The presence of a trial observer helps to ensure the
fair administration of justice, the proper functioning of the court process and that the right to a fair
trial is guaranteed.
In September 2008, the IBAHRI became aware of the arrest and detention of Raja Petra Kamarudin
(Raja Petra), editor of the online newspaper Malaysia Today. On 12 September 2008, Raja Petra was
arrested for publishing articles on his website which allegedly tarnished the leadership of Malaysia
and maligned Islam. Due to concerns that Raja Petra’s arrest may have been politically motivated,
and that he may not receive a fair hearing, the IBAHRI arranged for two trial observers to attend
the hearing for his habeas corpus application. Prominent lawyers Mr Ashwin Trikamjee, from South
Africa, and Mr George Hwang, from Singapore, attended the hearing on behalf of the IBAHRI and
met with a range of stakeholders concerned with the case.
The Court decided in favour of Raja Petra on 7 November 2008. The judgment is at Annex A. The
IBAHRI issued a press release welcoming this decision (see Annex B). On 13 November 2008, the
Government appealed the decision. The appeal hearing was scheduling for 11 February 2009.
On 11 February, concerns about a judge’s impartiality by the defence led to the postponement of
the hearing until 17 February. On 17 February, the Court considered the arguments against the
involvement of one of the judges, and adjourned the hearing after dismissing the claims (see Annex
C). On 23 February 2009, the Court reviewed the decision of 17 February. The Court reserved the
right to issue a written decision. On 9 June 2009, the Court issued its written judgment finding a
quorum failure, thus setting aside the 17 February judgment and requiring a re-hearing. This judgment
is at Annex D. Mr Hwang observed each of the appeal hearings on behalf of the IBAHRI.
The IBAHRI is grateful for the funding received from the Foundation Open Society Institute and
the Media Legal Defence Initiative, which has enabled it to undertake this observation. The IBAHRI
would also like to thank both its observers for their participation in these missions.
This report focuses on the habeas corpus application hearing which took place on 22 October 2008
and the appeal hearings on 11 February, 17 February and 23 February 2009. This report sets out the
IBAHRI’s findings on the fairness of these proceedings.
November 2010
Malaysia: the delicate balance between security and due process 5
6 Malaysia: the delicate balance between security and due process
november 2010
Background
On 12 September 2008, Raja Peta was arrested under Section 73(1) of the Malaysian Internal
Security Act 1960 (ISA or the Act). On 22 September 2008, Home Minister Dato’ Seri Syed Hamid
bin Syed Jaafar signed the detention order for Raja Petra to be held under Section 8(1) of the ISA.
It was reported to the IBAHRI trial observers that this decision was taken as there is no judicial
review available under Section 8(1) detention, whereas judicial review is available under Section
73(1) detention. Raja Petra reportedly was transferred to the Kamunting detention centre in Perak
on the morning of 23 September. On the same day, Raja Petra’s lawyer Malik Imtiaz Sawar (Malik
Imtiaz) made a habeas corpus application to the High Court of Shah Alam. Senior Federal Counsel
Abdul Wahab Mohamad contended that since Raja Petra was no longer detained by the police under
Section 73(1) of the ISA, but rather under Section 8(1), the issue had become academic and the
application should be dismissed.
The hearing of the application took place on 22 October 2008. The High Court delivered its
decision on 7 November 2008, finding in favour of the applicant. Not considering the grounds of the
detention order to fall under the scope of Section 8(1) of the ISA, it ordered that Raja Petra be set
free the same day.1
On 11 February 2009, the Federal Court adjourned its hearing of the Home Minister’s appeal against
Raja Petra’s release from detention under the ISA after Raja Petra’s counsel expressed concern of
potential bias on the part of one of the judges hearing the case. On 17 February 2009 his appeal
to file a motion of recusal (inter alia) was granted, heard and subsequently dismissed by the two
remaining judges (after the concerned judge voluntarily left the bench).2 On 20 February 2009,
Raja Petra’s counsel filed an application for a review of the recusal decision, submitting that only two
judges heard the recusal application, thereby ‘rendering the sitting of the apex court unlawful and
unconstitutional’.3 This appeal was heard on 23 February 2009, when the Federal Court reserved its
judgment and adjourned the hearing of the Home Minister’s appeal to a date yet to be fixed.
On 9 June 2009 the Federal Court delivered its judgment on the review pertaining to the ISA appeal.
The Federal Court set aside its earlier decision, ruling that a quorum failure had indeed occurred when
one of the three judges left the bench on 17 February. ‘When the two-member panel proceeded to
hear the recusal application, Section 74(1) of the Court of Judicature Act (CJA) was offended’, Justice
Richard Malanjum stated in his written judgment.
On 2 September 2010, the Federal Court again adjourned the hearing of the Home Minister’s
substantive appeal against Raja Petra’s release on the grounds that the Prosecution had failed to serve
Raja Petra with notice of appeal.4 On 1 November 2010, the Supreme Court struck out the Home
1
‘Court frees Raja Petra’, The Star, 7 November 2008, available at http://thestar.com.my/news/story.asp?file=/2008/11/7/nation/200811070946
18&sec=nation.
2
‘RPK suffers setbacks as court postpones hearing to Monday’, Malaysian Insider, 17 February 2009, available at http://www.themalaysianinsider.
com/malaysia/article/RPK-suffers-setbacks-as-court-postpones-hearing-to-Monday/.
3
‘Federal Court reserves judgement on RPK case’, The Star, 23 February 2009, available at http://thestar.com.my/news/story.
asp?file=/2009/2/23/nation/20090223165541&sec=nation.
4
‘Court adjourns Home Minister’s appeal against Raja Petra’s release from ISA detention’, The Star, 2 September 2010, available at: http://
thestar.com.my/news/story.asp?file=/2010/9/2/nation/20100902095158&sec=nation.
November 2010
Minister’s appeal holding that the detention order had lapsed.5 There seems to be no remaining
barrier to Raja Petra’s return to Malaysia.6
Raja Petra’s sedition trial commenced on 6 October 2008. After one day of hearings the trial was
postponed a number of times through November and December before it was finally resumed on 9
February 2009. Two days of the hearing were held before it was further adjourned until 23 April 2009.
After failing to show up for his sedition trial on 23 April 2009, a warrant of arrest was issued for
Raja Petra. Writing on his blog, he explained he had decided to become a fugitive for fear of being
detained under the ISA yet again.7 Since 23 April, mention dates for the sedition trial were set for
23 May, 17 July, and 13 October 2009. On 13 October, the Court set 11 November 2009 as the final
mention date for the sedition trial.8 At that hearing, Raja Petra was given a discharge not amounting
to acquittal on the grounds that the prosecution had failed to serve him with the warrant for arrest
because they could not trace him.9
On 26 May 2009, Raja Petra was served with another warrant of arrest, this time for failing to show for
his defamation trial set to begin the same day;10 2 July and 10 October 2009 were fixed for mention.
Judge Mohamad Sakeri Mamat set 13 November 2009 for final mention of the case.11 At that hearing,
the judge gave Raja Petra a second discharge not amounting to acquittal again on the grounds that
the prosecution had failed to find him and serve him with the arrest warrant.12
The arrest of Raja Petra needs to be understood within the historical and current socio-political
context of Malaysia. The following is a short synopsis to better understand the motivation behind his
arrest under the ISA.
Malaysian politics
Malaysia gained its independence in 1957. A former British colony, its politics were framed at the
outset in racial terms. This followed on from the colonial approach, whereby the British divided
Malays on racial lines.
The current ruling political party, Barisan Nasional, has been in power since independence. It is a
coalition comprised of three separate parties, each also divided on racial grounds. The parties include
the United Malays National Organisation (UNMO), Malaysian Chinese Association (MCA) and
Malaysian Indian Congress (MIC). While ostensibly advocating racial harmony, the different parties
in the coalition tend to appeal to their own racial community and cater for their rights and interests.
5
‘Raja Petra is free after Federal Court strikes off Home Minister’s appeal’, The Star, 1 November 2010, available at: http://thestar.com.my/news/
story.asp?file=/2010/11/1/nation/20101101100313&sec=nation.
6
‘Federal Court strikes out appeal against RPK’s release’, The Malaysian Insider, 1 November 2010, available at: http://www.themalaysianinsider.
com/malaysia/article/federal-court-strikes-out-appeal-against-rpks-release/.
7
‘RPK absconds’, Malaysian Insider, 23 April 2009, available at http://www.themalaysianinsider.com/malaysia/article/RPK-absconds-/.
8
‘RPK’s sedition trial postponed for third time’, Malaysian Insider, 13 October 2009, available at http://www.themalaysianinsider.com/malaysia/
article/RPKs-sedition-trial-postponed-for-third-time-/.
9
‘Raja Petra gets discharge not amounting to acquittal’, The Star, 11 November 2009, available at: http://thestar.com.my/news/story.
10 ‘Another warrant out for Raja Petra’, Malaysian Insider, 26 May 2009, available at http://www.themalaysianinsider.com/malaysia/article/
Another-warrant-out-for-Raja-Petra/.
11 ‘Arrest warrant yet to be served on ‘missing’ RPK’, The Star, 10 October 2009, available at http://thestar.com.my/news/story.
asp?file=/2009/10/10/courts/4880007&sec=courts.
12 ‘Raja Petra gets discharge in defamation case too (Update)’, The Star, 13 November 2009, available at http://thestar.com.my/news/story.
november 2010
Traditionally, preferential treatment has been given to Malays under the New Economic Policy. This
affirmative action policy provides preferential treatment to ethnic Malays and other indigenous
groups, and was developed in order to defuse inter-ethnic tensions following race riots in 1969.13
Whether this policy derives its legitimacy from Article 153 of the Constitution, which provides the
Yang di-Pertuan Agong (the elected monarch serving as the head of state of Malaysia) with the ability
to safeguard the special positions of Malays, is still a hotly-debated topic today.
The March 2008 election elevated some of these concerns to the national level. While Barisan
Nasional retained its position as the Government, it lost many seats to opposition parties and won
fewer votes overall than ever before. For the first time since 1969, the Government lost its power to
amend the Constitution, as it no longer held a two-thirds majority in the Parliament.
Independence of the judiciary
The Malaysian judiciary has suffered many crises in recent years. In 1988, a judicial crisis occurred
in which the then-Prime Minister Mahathir bin Mohamad suspended and then removed the Lord
President of the Supreme Court, Tun Salleh Abas.
In September 2007 another scandal rocked the Malaysian judiciary when eight minutes of footage
dating from 2002 showed senior lawyer VK Lingam speaking on the telephone about who would
replace the outgoing Chief Justice. The telephone conversation concerned who should be placed
as the new Chief Justice, and indicated a plan to involve other people in discussing new judicial
appointments with then-Prime Minister Mahathir bin Mohamad. When the video was released in
2007, some of the appointments discussed had already taken place.
A 2008 Transparency International Survey found that confidence in the judiciary was at an all-time low,
and that only nine per cent of Malaysians consider the judiciary to be free from undue influence.14
The current Chief Justice, Tan Sri Dato’ Seri Zaki bin Tun Azmi, was appointed on 21 October 2008.
Immediately prior to his appointment he was an advisor to UNMO.
The IBAHRI observers also received unconfirmed reports that High Court judges had been moved in
order to weaken their prospects of promotion or influence.
History of the ISA
The ISA was enacted in 1960 under Article 149 of the Constitution. It has its origins in the colonial
Emergency Regulations Ordinance 1948, which was passed to combat Communist insurgency at the time.
The ISA permits the detention of any person without charge or trial, at the discretion of the Home
Minister, provided that the Home Minister is satisfied that such detention is vital to prevent the
person from acting in a manner detrimental to national security.15 Section 73 provides the police
force with extensive powers of arrest without warrant. Any person detained initially can be held under
arrest for 60 days without charge and without legal recourse. This imprisonment potentially may be
13 See http://www.state.gov/r/pa/ei/bgn/2777.htm.
14 ‘Survey paints grim picture of the judiciary’, The Star, 22 October 2008, available at http://thestar.com.my/news/story.asp?file=/2008/10/22/
nation/2337270&sec=nation.
15 See Section 8(1) of the Internal Security Act, available at http://anfrel.org/mission_data/ISA%20-%20Malaysia.pdf.
November 2010
followed by an order for two years’ detention under Section 8. Detention may be extended beyond
the two-year period at intervals of two years, with the possibility of extending the term of detention
based on factors not originally cited in the arrest.
Amendments have been made to the ISA on 18 separate occasions, increasing the severity of the
ISA each time. The most draconian of these amendments was the addition of Sections 8B and 8C in
1989, which expressly ousted the power of the Court to review the decision of the Home Minister for
ordering a detention under Section 8 of the Act. The relevant provisions are as follows:
Section 8B:
1)
There shall be no judicial review in any court of, and no court shall have or exercise any
jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or
the Minister in their exercise of their discretionary power in accordance with this Act, save in
regard to any question on compliance with any procedural requirement in this Act governing
such act or decision.
2)
The exception in regard to any question on compliance with any procedural requirement in
subsections (1) shall not apply where the grounds are as described in section 8A.
Section 8C: In this Act, ‘judicial review’ includes proceedings instituted by way of:
a)
An application for any of the prerogative orders of mandamus, prohibition and certiorari;
b)
An application for a declaration or an injunction;
c)
A writ of habeas corpus; and
d)
Any other suit, action or other legal proceedings relating to or arising out of any act done or
decision made by the Yang di-Pertuan Agong or the Minister in accordance with this Act.
As provided in the foregoing amendments, even the right of habeas corpus, which is enshrined in the
Malaysian Constitution by virtue of Article 5(2), has been specifically excluded from review.
The ISA has reportedly been used extensively throughout the years. Operation Lalang of 1987 and
Operation Talkak of 1990 and 1991 are the most famous incidents of mass arrests under the ISA.
Operation Lalang involved a political crackdown on opposition leaders, activists and journalists by
the Government. One hundred and six people were arrested and the licenses of four newspapers
were revoked.16 Operation Talkak involved the arrests of opposition leaders in Sabah, ostensibly due
to their alleged intention to cause the state to secede from Malaysia. Seven leaders were arrested and
detained for two years under the ISA.17
In 2008, three members and two legal advisors of the Hindu rights group Hindu Rights Action Force
(HINDRAF) were arrested immediately prior to the scheduled elections under charges including
undermining national security and public order by threatening to jeopardise racial and religious
harmony amongst Malaysia’s Malay, Indian and Chinese communities. The HINDRAF five are no
16 Aliran, Operation Lalang Revisited, December 2008, http://www.aliran.com/oldsite/hr/js3.html or Human Rights Watch, In the Name of Security:
Counterterrorism and Human Rights Abuses Under Malaysia’s Internal Security Act, 25 May 2004, C1607, available at http://www.unhcr.org/refworld/
docid/412eee8f4.html.
17 Human Rights Watch, Human Rights Watch World Report 1992 – Malaysia, 1 January 1992, available at http://www.unhcr.org/refworld/
docid/467fca52c.html.
november 2010
longer being detained under ISA, according to recent reports. On 5 April 2009, V Ganabatirau and
R Kengadharan, two lawyers from the HINDRAF five, were released. The other three members of the
HINDRAF five, Uthayakumar Ponnusamy and Manoharan Malayalam, plus HINDRAF secretary T
Vasanthakumar, were released by the Malaysian authorities on 9 May 2009. T Vasanthakumar has had
restrictions placed upon his release under the Resident Restricted Act,18 which include a curfew and a
ban on speaking to the media.19
As of 3 February 2005, 10,662 people have been arrested under the ISA, of which 4,139 were issued
with formal detention orders and 2,066 were served with restriction orders controlling where they
could reside or the activities they could perform. In addition, 12 people have been executed for
offences under the ISA.
As of 12 October 2010, 19 people are in detention under the ISA. Four of these were arrested and
have been in detention since 2005. Indications are that, upon taking office as Prime Minister in April
2009, Prime Minister Seri Najib Tun Razak has released all but nine of those in detention under the
provisions of ISA. His Government has detained ten others for involvement in terrorist networks
and with foreign and national militant groups.20 Prime Minister Najib has previously signalled his
Government’s intent to amend the ISA21 but has resisted calls from the Human Rights Commission of
Malaysia to repeal it.22
The IBAHRI understands that the Malaysian Government is in the final stages of amending the ISA,
after consultation with key stakeholders.23 Home Minister Datuk Seri Hishammudin Tun Hussein has
stated that the amendments would cover five areas – the length of detention, rights and treatment of
detainees and their families, the power of the Home Minister, the use of the ISA for political reasons
and detention without trial.24 The Law Reform Committee submitted its proposed amendments to the
Cabinet in November 2009, with the intention for Parliament to review the amendments.25
In March 2010, the Cabinet determined to amend the ISA at the same time it amended six other
pieces of legislation, including the Prevention of Crime Act 1959; Section 27, Police Act 1960;
Banishment Act 1959 (Revised 1972); Restricted Residence Act 1933; Dangerous Drugs (Special
Preventive Measures) Act 1985 and the Emergency Ordinance (Public Order and Crime Prevention)
1969.26 The IBAHRI understands that amendments to the ISA were drafted at the end of June
18 A person placed under the RRA: – shall not be permitted to transfer his residence to any other area, town or village, as the case may be, without
the written authority of the Chief Police Officer of the State concerned; – shall not leave the area, town or village within which he resides
without the written authority of the Chief Police Officer of the State concerned; – shall at all times keep the Officer in Charge of the Police
District in which he resides notified of the house or place in which he resides; – shall be liable at such time or times as may be specified in the
order to present himself at the nearest police station; – shall not, without the permission of the Chief Police Officer of the State concerned,
make any public speech or address any meeting, or publish in any manner any manifesto, article or other document which, in the opinion of
the Chief Police Officer, has a seditious tendency or contains any incitement to violence or is likely to lead to a breach of the peace.
19 Amnesty International, Three Activists Released in Malaysia, 11 May 2009, available at http://www.amnesty.org/en/news-and-updates/good-news/
three-activists-released-malaysia-20090511.
20 Aliran, ISA Watch, viewed on 2 November 2010, available at http://aliran.com/isa-watch.
21 Human Rights Watch, Human Rights Watch World Report 2009 – Malaysia, viewed on 2 November 2010, available at http://www.hrw.org/en/
node/87396.
22 Human Rights Commission of Malaysia, Annual Report 2009, Chapter 5: Report of the Law Reform and International Treaties Working Group, 5.
Preventive Laws and Detention without Trial, available at http://www.suhakam.org.my/annual_report..
23 ‘Changes to the ISA should satisfy the majority, Hisham says’, The Star, 30 October 2009, available at http://thestar.com.my/news/story.
24 Ibid.
25 ‘ISA detention amendments sent to Cabinet’, The Star, 12 November 2009, available at http://thestar.com.my/news/story.
26 ‘ISA and six other acts to be cohesively amended’, The Star, 21 March 2010, available at http://thestar.com.my/news/story.
November 2010
2010, and were to be passed to the Cabinet.27 Reports indicate that as of 13 September 2010, the
draft amendments were with the Cabinet.28 The IBAHRI can find no further indication that the
amendments have progressed.
27 ‘Draft amendments completed’, The Star, 30 June 2010, available at http://thestar.com.my/news/story.asp?file=/2010/6/30/parliament/65745
78&sec=parliament.
28 ‘Suaram, GMI condemn ISA detention of suspected terrorist’, The Malaysian Insider, 13 September 2010, available at http://www.
themalaysianinsider.com/malaysia/article/suaram-gmi-condemn-isa-detention-of-suspected-terrorist/.
november 2010
The case against Raja Petra Kamarudin
Raja Petra is a popular and influential Malaysian blogger and journalist. He is the editor of a widelyread blog and online newspaper, Malaysia Today. Commentators indicate that Malaysia Today is
a highly influential blog and news source, which has strongly criticised the Government and has
uncovered various corruption allegations. Stakeholders interviewed by the IBAHRI observers
indicated that the Malaysia Today website had contributed to the loss of many government seats in the
March 2008 elections.
Raja Petra has been a strong civil society activist since 1998. In 1999, he managed the ‘Free Anwar’
campaign and its website, which was directed towards freeing Anwar Ibrahim, the former Deputy
Prime Minister and leading opposition figure. In 2001, Raja Petra was arrested and detained under
the ISA for 53 days for his role in this campaign.
Timeline
12 September 2008
Raja Petra is arrested under Section 73
16 September 2008
Application for habeas corpus for the Section 73 detention is filed by Raja Petra’s counsel
22 September 2008
Minister of Home Affairs signs a Section 8(1) detention order
23 September 2008
Section 73 hearing before Justice Suraya Othman (originally scheduled for 26 September
2008)
In light of the Section 8(1) order, Justice Suraya Othman considered the hearing irrelevant.
Additional arguments from counsel resulted in Justice Suraya Othman asking for written
submissions and a hearing on 28 October 2008
28 September 2008
Application for habeas corpus for the Section 8 detention is filed by Raja Petra’s counsel
17 October 2008
Hearing before Justice Datuk Syed Ahmad Helmy Bin Syed Ahmad postponed, allegedly due
to unverified reports that the judge wanted to attend the farewell party for the outgoing
Chief Justice
22 October 2008
Hearing before Justice Datuk Syed Ahmad Helmy Bin Syed Ahmad at Shah Alam High Court
from 09:00
11 February 2009
Hearing before Justices Dato’ Bentara Istana Nik Hashim, Dato’ Zulkefli Bin Ahmad Makinudin
and Dato’ Augustine Paul at Putrajaya Federal Court
17 February 2009
Hearing before Justices Dato’ Bentara Istana Nik Hashim, Dato’ Zulkefli Bin Ahmad Makinudin
and Dato’ Augustine Paul at Putrajaya Federal Court (recusal of Justice Augustine Paul,
application dismissed)
23 February 2009
Hearing before Justices Alauddin bin Dato’ Mohd Sheriff, Arifin bin Zakaria and Richard
Malanjuma at Putrajaya Federal Court (appeal against dismissal of motion of recusal)
23 April 2009
When Raja Petra fails to appear at his trial for sedition, he is deemed to have absconded
from Malaysia
9 June 2009
Federal Court (composed of Justices Alauddin bin Dato’ Mohd Sheriff, Arifin bin Zakaria and
Richard Malanjuma) delivers judgement on Raja Petra’s application for recusal and accepting
the appeal
2 September 2010
Hearing before Justices Arifin Zakaria, Hashim Yusoff and James Foong Cheng Yuen at Putrajaya
Federal Court adjourns hearing on the Home Minister’s appeal against Raja Petra’s release
1 November 2010
Putrajaya Federal Court (composed of Justices Arifin Zakaria, James Foong Cheng Yuen and
Md Raus Sharif) dismisses the Home Minister’s appeal against Raja Petra’s release
November 2010
Material facts
Altantuya article
Shaariibuugiin Altantuya was a Mongolian model and interpreter, whose death was linked to some high
level government and police officials. In response to this scandal, Raja Petra published an article entitled
‘Let’s Send the Altantuya Murderers to Hell’, which queried high level government involvement in her
murder.29 As a result of this article, Raja Petra was charged with sedition under Section 4 of the Sedition
Act. He was due to stand trial on 6 October 2008 for this charge, which was later moved to November
2008. The trial was adjourned until 9 February 2009 and then further adjourned until 23 April 2009. This
article was also one of three articles identified as the basis for the arrest under the ISA.
In addition to the Altantuya article, Raja Petra made a statutory declaration linking Deputy Prime
Minister Najib and/or his wife to the murder. He was also charged with criminal defamation under
Section 500 of the Penal Code.
Applicable law
There are a number of provisions of the Constitution of Malaysia30 which are applicable in this case.
The relevant articles are reproduced in full in Annex E, and include:
1)Article 5 – the right to life and liberty
2)Article 10 – the right to freedom of expression
3)Article 149 – derogation from fundamental rights guaranteed under Part II, Fundamental Liberties
4) Article 153 – granting the Yang di-Pertuan Agong the right to safeguard the special position of Malays
There are also a number of provisions of the ISA31 which are relevant to these proceedings. These
provisions are reproduced in full in Annex F, and include:
1)
The preamble;
2)
Section 73 – power of the police to make arrests and detain for 60 days;
3)
Section 8 – power of the Minister to make detention orders;
4)
Section 8B – the ouster of judicial review clause;
5)
Section 8C – proceedings under judicial review.
Although Malaysia has not ratified the International Covenant on Civil and Political Rights (ICCPR),
it is a founding member of the Association of Southeast Asian Nations (ASEAN). Under the ASEAN
Charter signed by Malaysia in 2007, and as a member of the United Nations Human Rights Council,
Malaysia is required to ‘promote and protect’ human rights.32
29 Raja Petra Kamarudin, Let’s Send the Altantuya Murderers to Hell, 25 April 2008. Available at http://www.rsf.org/IMG/pdf/Malaise_-_Malaysia_
Times_.pdf.
30 Available at http://confinder.richmond.edu/admin/docs/malaysia.pdf.
31 Available at http://anfrel.org/mission_data/ISA%20-%20Malaysia.pdf.
32 United Nations General Assembly resolution 60/251 establishing the Human Rights Council available at http://www2.ohchr.org/english/
bodies/hrcouncil/docs/A.RES.60.251_En.pdf.
november 2010
Raja Petra’s arrest under the ISA
Grounds for detention
According to the Outline Submission for the Counsel for the Applicant (reproduced in full in Annex
G), the grounds for Raja Petra’s detention under the ISA were as follows:
1)
The Applicant owns and operates the website Malaysia Today;
2)
The Applicant had wilfully, intentionally and recklessly published articles written by the
Applicant as well as readers’ comments on Malaysia Today that were critical of and insulted
Muslims, the purity of Islam and the personality of the Prophet Muhammad SAW;
3)
4)
The articles in issue were identified as:
a)
‘Malays, the Enemy of Islam’;
b)
‘Let’s send the Altantuya murderers to hell’; and
c)
‘I promise to be a good, non-hypocritical Muslim’.
The comment in issue was identified as one from a commentator name The Anti-Jihadist
published in an article by the name of ‘Not all Arabs are the descendants of the Prophet’; and
5)
The Applicant had written or allegedly published articles concerning national leaders that were
defamatory and false with the intention of undermining confidence and inciting public hatred
against the Government which could affect public order and prejudice national security. The
Articles in issue were identified as:
a)
‘Malays, the Enemy of Islam’;
b)
‘Let’s send the Altantuya murderers to hell’; and
c)
‘I promise to be a good, non-hypocritical Muslim’.
Complaints
Police reports were filed against Raja Petra for ‘I promise to be a good, non-hypocritical Muslim’ and
‘Not all Arabs are the descendants of the Prophet’. The complainants included: (1) the Malaysian
Department of Islamic Development; (2) the Islamic Da’wah Foundation of Malaysia; (3) the Federal
Territory Islamic Religious Department; and (4) the Federal Territory Islamic Council.
A supplemental affidavit of Mable alias Marina Lee affirmed on 17 October 2008 was submitted. As it
was likely this could result in a delay of the hearing, Raja Petra’s counsel withdrew the affidavit.
November 2010
Position of the parties
The arguments made on behalf of Raja Petra by his counsel were the following:
1)
That Section 8 of the ISA is void for being unconstitutional as it contravenes Article 149 of the
Constitution, which provides the circumstances in which Parliament may enact legislation that
is otherwise contrary to certain fundamental liberties protected by the Constitution;
2)
That the Home Affairs Minister did not have the jurisdiction to detain Raja Petra, because:
a)
The pre-conditions for the exercise of this power were not fulfilled;
b)
Regulation of Raja Petra’s conduct as a Muslim is by virtue of Article 80 of the
Constitution, which puts these matters exclusively within the domain of the State
authorities, and therefore the Federal government has no power in this regard;
3)
That the detention contravenes Article 11 of the Constitution, relating to freedom of religion
and regulation of religious affairs; and
4)
The detention was in bad faith, and is therefore ultra vires.
In response to claims that judicial review is not allowed for Section 8(1) detentions, Raja Petra’s
counsel argued that the ouster clause should not be read strictly, and that it does not preclude
scrutiny of jurisdiction and jurisdictional errors.
The Respondent’s counsel based their arguments on existing law, specifically focusing on the
argument that the Court has no power to review the issue of a detention order under Section 8 of the
ISA, as this is excluded under Section 8B of the Act.
The full submission made by counsel for the Respondents can be found in Annex H. The submission
considered a wide range of arguments in support of the Respondent’s position, including (1) that
bad faith is not a procedural non-compliance exception that allows judicial review under the ISA; (2)
the relationship between Section 73 and Section 8 of the ISA; and (3) that procedural irregularities in
the arrest of a person has not impact on the procedural non-compliance of a Section 8(1) detention
order. Furthermore, counsel for the Respondent also argued that the ISA preamble, which provides
that ‘WHEREAS action has been taken and further action is threatened by a substantial body of
persons both inside and outside Malaysia’ does not render the detention invalid on the grounds that
Raja Petra does not belong to any substantial body of persons.
Treatment during detention
According to interviews conducted by the IBAHRI observers, it is likely that the standards of
detention fell below acceptable international standards. Commentators reported that Raja Petra was
brought to the place of detention both handcuffed and blindfolded, and was held in a cell without
a mattress or pillow, which was allegedly later provided for him by his doctor. The IBAHRI observers
also received reports that Raja Petra was deprived of sleep and harassed during the interrogation.
Concerns were also expressed regarding the standard of food provided to Raja Petra.
november 2010
Attempts by the IBAHRI observers to interview Raja Petra during the course of the habeas corpus
proceedings were not responded to by the government, therefore the IBAHRI observers were unable
to corroborate these allegations directly with Raja Petra.
Public response to the arrest of Raja Petra
The general public, the Malaysian Government and civil society responded strongly to the arrest of
Raja Petra, as described in greater detail herein.
Reaction within the cabinet
In response to the 12 September 2008 arrest, Yan Berhormat Senator Datuk Mohd Zaid Imrahim, a
Minister in the Prime Minister’s Department, resigned from the Cabinet in protest. Known for his
criticisms of various human rights issues, commentators reported that he was also frustrated with
the lack of cooperation in carrying through reforms to the judicial appointment system. He publicly
denounced the arrests ordered by the Ministry of Home Affairs as an abuse of the ISA.33
Reaction from the human rights commission, civil society and the Malaysian Bar Council
In response to the arrests of certain individuals under the ISA, the Malaysian Bar Council called an
Emergency General Meeting on 20 September 2008, which was attended by more than 730 members.
The resolutions passed during this meeting, inter alia, denounced the arrests under the ISA, called
for the release of all current ISA detainees and called for the abolition of the ISA. The text of the
motion is included herein as Annex I.
Surhanjaya Hak Asasi Manusia Malaysia (SUHAKAM), the Human Rights Commission of Malaysia,
issued a press statement on 13 October 2008 describing the arrests as ‘a total abuse of the ISA and
a violation of human rights’.34 SUHAKAM called for the ISA to be repealed and for its use to be in
accordance with its original objective. SUHAKAM also called on the Government to try the detainees
in a court of law.
Suara Rakyat Malaysia, formed in 1989 by ex-detainees under Operation Lalang and their families to
campaign for the abolition of the ISA, expressed similar views.35
Sisters in Islam, another non-governmental organisation (NGO), has also criticised the arrests and
called for the abolition of the ISA, stating that: ‘This draconian law that allows a citizen to be detained
without trial not only violates a person’s fundamental rights, but is also against the basic principle of
democracy upheld in Malaysia’.36
33 AFP, ‘Malaysian minister quits in furore over crackdown’, 15 September 2008, available at http://afp.google.com/article/
ALeqM5g1D80N5HDuPIBJEIqAKP4ROqX9mw.
34 Human Rights Commission of Malaysia, ‘SUHAKAM calls for the repeal of the ISA and the release of the detainees’, Press Statement 13 October
2008, available at http://www.suhakam.org.my/en/press_room/details.asp?id=150.
35 Suaram, ‘About Us’, 24 May 2010, available at http://www.suaram.net/about.
36 Sisters in Islam, ‘SIS calls for the Release of ISA detainees Raja Petra Kamarudin, Teresa Kok, Tan Hoon Cheng’, Press Statement 13 September
2008, available at http://www.sistersinislam.org.my/index.php?option=com_content&task=view&id=775&Itemid=1.
November 2010
Aliran Kesedaran Negara, a Malaysian human rights NGO established in 1977, has also called for the
abolition of the ISA and specifically condemned the three arrests.37
Reaction of bloggers and the general public
It is difficult to assess the response of the public to the arrest of Raja Petra. Following the arrests,
many bloggers remained vocal and continued to criticise the Government.38 On 19 October 2008,
a candlelight vigil was held for Raja Petra, with over 500 estimated in attendance. This led to a
candlelight vigil being held every week afterwards until his release.
37 Francis Loh, ‘The BN national security state and the ISA’ available at http://www.aliran.com/index.php?option=com_
content&view=article&id=760:the-bn-national-security-state-and-the-isa&catid=72:2008-7&itemid=10.
38 Examples of such bloggers include: http://kickdafella.wordpress.com; http://dinmerican.wordpress.com; http://harismibrahim.wordpress.
com; http://bigdogdotcom.wordpress.com; http://mahaguru58.blogspot.com.
november 2010
First observation
The hearing
The first hearing took place from 09:00 to 16:00 on 22 October 2008 at the Shah Alam High Court in
Shah Alam before Justice Datuk Syed Ahmad Helmy Bin Ahmad (Justice Helmy). A two-hour break
was held for lunch.
Counsel for Raja Petra as Applicant included Malik Imtiaz Sawar, Azhar Azizan Harun, Ashok
Kandiah, Sreekant Pillai, Neoh Hor Kee and Jadadish Chandra. Counsel for the respondents
including Abdul Wahab Mohamed and Mohd Dusuki Moktar.
The Applicant’s arguments were heard in the morning and ended approximately at noon. From
14:30 onwards, the judge heard the Respondent’s arguments. Notwithstanding other pending cases,
the judge refrained from adjourning the hearing so as to hear all arguments in full.
The IBAHRI observers noted that there was no security at the Court, other than two sentry guards
at the gate. Metal detectors were not used at the entrance to the Court. As such, the public and the
IBAHRI observers were free to enter and leave the courtroom at will. The IBAHRI observers noted
that members of the public, some of whom wore ‘Free Raja Petra’ or ‘I am with Raja Petra’ t-shirts,
attended the hearing.
The judgment
On 7 November 2008, Justice Helmy delivered his written judgment on the Section 8 order, finding in
favour of the Applicant and ordering that he be released by 16:00 the same day. He based his decision
on the fact that the Government is not entitled to base and justify detention under the ISA unless
it can demonstrate one of the grounds listed in the Act, thereby giving the Minister the necessary
jurisdiction to act. Justice Helmy found that the jurisdictional requirement had not been met, and
thus he issued the writ of habeas corpus.
The hearing
Throughout the hearing, the IBAHRI observers noted that Justice Helmy conducted himself fairly
and objectively. While his decision could have been released sooner than on 7 November 2008,
the IBAHRI commends his decision to finish the hearing on 22 October rather than adjourning it,
notwithstanding the competing cases.
The IBAHRI notes that the lack of security as reported by the IBAHRI observers does not accord
with governmental contentions that Raja Petra represented a clear threat to the public. The IBAHRI
welcomes the openness of the courtroom and the fact that the hearing was held publicly.
November 2010
Standards of detention
According to reports received by the IBAHRI observers, there were serious concerns regarding the
standards of treatment received by Raja Petra during his detention.
SUHAKAM compiled a report on ‘The State of Prisons and Immigration Detention Centres in
Malaysia: 2007-2008’39 which has recently been published. The report highlights a number of
recommendations that are required to vastly improve the standards of detention in Malaysia. It is
reported that the standards of conditions between the newer detention centres, older centres and
immigration centres is extremely vast.
The report highlighted that ‘overcrowding’ is a major factor in decline of standards, as this affects the
detainee’s mental and physical health. SUHAKAM noted several issues arising from the overcrowding,
including problems with material conditions, or the use of toilet and washing facilities, bedding and
general cleanliness, lack of medical personnel available for continuous care of inmates, and issues
where conditions imposed by the guards or the mere environment of the prison can cause distress
and anxiety if not treated, and can ultimately lead to fighting among the populous. Other factors that
have led to distress of inmates are the presence of children in an adult population. Moreover, it has
been reported by Amnesty International40 and by Prison Talk Blog41 that caning by a thick piece of
bamboo called a ‘Rotan’ is regularly used in detention centres.
The standards of detention in Malaysia appear to be improving; however, the IBAHRI is seriously
concerned that vast improvement is still required.
Additional concerns
The internal security act
Beyond the question of fair trial standards, the IBAHRI has serious concerns regarding the ISA and
its application in Malaysia. It is understood that the ISA as currently drafted empowers the Minister
of Home Affairs to issue detention orders against any person under certain conditions. Furthermore,
detainees can be held for up to 60 days without warrant, trial or access to legal counsel, solely on
the suspicion that they ‘have acted or are about to act or are likely to act in any way prejudicial to
the security of Malaysia or any part thereof or to maintenance of essential services therein or to the
economic life thereof’.42 In addition, the IBAHRI understands that after 60 days, the Minister of Home
Affairs can extend the period of detention without trial for up to two years, without submitting any
evidence for review by the courts, simply by issuing a detention order, which is renewable indefinitely.
The ISA therefore establishes the conditions for long-term and arbitrary detention without trial, and
contravenes the right to legal counsel, the right to defend oneself in an open court and the right to
be presumed innocent until proved guilty, all of which are principles enshrined and protected under
customary international law and the Universal Declaration of Human Rights.
39 Suhakam, ‘The State of Prisons and Immigration Detention Centres in Malaysia: 2007-2008’, 2010, available at http://www.suhakam.org.my/c/
document_library/get_file?p_l_id=22118&folderId=236834&name=DLFE-7802.pdf.
40 Amnesty International, ‘Photographic evidence shows the cruelty of caning In Malaysia’, 25 August 2009, available at http://www.amnesty.org/
en/news-and-updates/news/photographic-evidence-shows-cruelty-caning-malaysia-20090825.
41 Prisontalk, ‘Malaysia’, 23 January 2006, available at http://www.prisontalk.com/forums/showthread.php?t=176440.
42 Section 73(1)(b) of the Internal Security Act, available at http://anfrel.org/mission_data/ISA%20-%20Malaysia.pdf.
november 2010
Under the ASEAN Charter signed by Malaysia in 2007, and as a member of the United Nations
Human Rights Council, Malaysia is required to ‘promote and protect’ human rights.43 While
Malaysia is not a party to the ICCPR, it is nonetheless bound by requirements in other regional and
international agreements to allow free speech and to protect human rights, including the right not to
be detained without charge.
The IBAHRI welcomes the decision to grant habeas corpus in this case, and considers that any further
charges against Raja Petra should be made in the context of a formal trial before an independent
and impartial judiciary. The IBAHRI urges the Malaysian Government to abolish the ISA, given the
serious due process and human rights concerns it raises.
The right to habeas corpus
The right to habeas corpus is one that is recognised by nearly all countries, and hence is generally
recognised to form part of customary international law. While in this case the judge decided to
accept that a habeas corpus application was available to contest Raja Petra’s detention, the existence
of Sections 8B and 8C of the ISA raise serious concerns, as they attempt to exclude judicial review
of detention decisions under Section 8(1), and specify habeas corpus applications as an example
of excluded judicial review. Given the extremely serious nature of detention without trial, judicial
review is of prime importance to guarantee due process, by ensuring that decisions are not made for
improper purposes or through unacceptable procedures. Therefore, while the IBAHRI maintains
that the ISA is inappropriate legislation and calls for its repeal, the IBAHRI, at a minimum, calls for
the repeal of Sections 8B and 8C.
While there are no international standards on the procedure of filing habeas corpus applications,
their purpose is to ensure that those wishing to challenge their detention are able to apply to a court
urgently. Given that Raja Petra was detained for almost six weeks before the habeas corpus application
was heard, and then waited another fortnight for the judgment, the IBAHRI encourages Malaysia to
introduce expedited procedures for applications for habeas corpus.
Observations and recommendations
1)
The IBAHRI observers noted that there is a lack of expedited procedures for applications for
habeas corpus to be heard and for corresponding judgments to be delivered. From the facts
of this case, the arrest was made on 12 September 2008. Raja Petra, however, was only released
from detention on 7 November 2008. This time period comes very close to the two month limit
for a Section 73 detention order. The IBAHRI recommends that all habeas corpus applications
should be heard on an expedited basis.
Furthermore, the IBAHRI recommends that habeas corpus applications should not be heard
on a normal mentions day with other criminal cases, thereby running the risk that the hearing
could be adjourned. The IBAHRI recommends that the courts set a special date to hear the
matter separately, and should refrain from any adjournments unless there are compelling and
fair reasons justifying doing so.
43 Supra n 26.
November 2010
2)
The IBAHRI is concerned by the apparent lack of respect held by the Home Affairs Minister for
the criminal legal process through his use, if not abuse, of the ISA. It is clear that the grounds
for the ISA arrest and sedition charges overlapped. It is of serious concern to the IBAHRI
that the Home Affairs Minister arrested and detained Raja Petra when he was to stand trial on
overlapping facts.
3)
The IBAHRI is further concerned by the treatment of detainees, especially during the 60 days
of police interrogation, pursuant to Section 73 of the ISA.
SUHAKAM’s Report of Public Inquiry into the Conditions of Detention under the ISA 1960 on
treatment during the 60 day interrogation period found that there is ‘sufficient evidence to justify a
finding of cruel, inhuman or degrading treatment’44 of the detainees. The SUHAKAM inquiry made
a number of recommendations, none of which seems to have been adopted by the police to date.
44 Supra n 33.
november 2010
Second observation
After the 7 November 2008 judgment allowing the writ of habeas corpus and requiring Raja Petra be
released from detention, the Government appealed. In the intervening period, Raja Petra’s sedition
trial had commenced on 6 October 2008. After one day of hearings, the sedition trial was postponed
numerous times through November and December, before it finally resumed on 9 February 2009.
Two days of hearings were held before it was further adjourned until 23 April 2009.
During the same week when the sedition trial was taking place in February, the first appeal hearing
on the writ of habeas corpus was heard in the Federal Court, which is the highest court in Malaysia.
The hearing
The hearing commenced at approximately 11:30 and was presided by Justices Dato’ Bentara Istana
Nik Hashim (Justice Hashim), Dato’ Augustine Paul (Justice Paul) and Dato’ Zulkefli Bin Ahmad
Makinudin (Justice Makinudin).
Counsel for Raja Petra included Malik Imtiaz, Azhar Azizan Harun, Ashok Kandiah, AS Sidhu, Justice
Chandra, Sreekant Pillai and Neo Hor Kee. Counsel for the Government included Tun Ahmad Majid
Tun Hamzah, Abdul Wahab Mohamed, Mohd Dusuki Moktar and Najib Zakaria.
The IBAHRI observer reported that immediately after the introduction of counsel, Malik Imtiaz
objected to the panel of judges, and specifically to the presence of Justice Paul, applying for time
to make a formal application. The objections to Justice Paul stemmed from potential bias, due to
the fact that Raja Petra had strongly criticised Justice Paul and his handling of the Anwar Ibrahim
corruption trial and that Justice Paul had previously dismissed a habeas corpus application for Raja
Petra in 2001 relating to his detention under the ISA for his role in the ‘Free Anwar’ campaign.
The IBAHRI observer noted that the application appeared to irritate Justice Hashim, who commented
that these arguments were weak, as Raja Petra had criticised Justice Paul, rather than the other way
around, and that the 2001 matter was an entirely different case. Malik Imtiaz informed the Court he
needed time to gather and file evidence, which could not have been done in advance as the panel
of judges was only revealed that morning. The Court then agreed to grant the application to file the
motion on recusal. Justice Hashim required the motion to be filed the next morning on 12 February.
The motion was filed the next morning, and raised three issues, which were as follows:
1)
The recusal of Justice Paul;
2)
The quorum of judges to be enlarged to either five or seven as the appeal concerns the scope of
judicial review and ouster clauses; and
3)
Evidence subsequent to the detention and release of Raja Petra to be admitted and taken into
evidence.
The motion was scheduled for hearing on 17 February.
November 2010
Overall, the hearings on 11 February were in accordance with international fair trial standards.
However, the IBAHRI is concerned by the urgency expressed by Justice Hashim, especially in
comparison with the initial habeas corpus proceedings. Justice Helmy took two weeks to release his
decision on the initial habeas corpus application, and scheduling of the hearing was over a month
after application. The IBAHRI is concerned given that the urgency for habeas corpus applications is
far greater when an individual is being detained without trial, in comparison to an appeal on a point
of law after a detainee has been released.
Any suggestion or apparent lack of independence in a court must be taken seriously and given
adequate consideration. The IBAHRI welcomes the decision to allow the application to be made.
november 2010
Third observation
Following filing of the motion for recusal, quorum enlargement and admission of additional evidence
by counsel for Raja Petra, the hearing was scheduled for 17 February. This appeal hearing was also
heard in the Putrajaya Federal Court.
The hearing
The hearing commenced at approximately 09:30 before the same panel of judges, including Justice
Hashim, Justice Paul and Justice Makinudin. Counsel for Raja Petra included Malik Imtiaz, Azhar
Azizan Harun, Ashok Kandiah AS Sidhu, Justice Chandra, Sreekant Pillai and Neo Hor Kee. Counsel
for the Government included Tun Ahmad Majid Tum Hamzah, Abdul Wahab Mohamed, Mohd
Dusuki Moktar and Najib Zakaria.
The formal motion filed by counsel for Raja Petra consisted of four parts. They were as follows:
1)
Motion No. 17a – application for the recusal of Justice Augustine Paul
2)
Motion No. 13a – application for an expanded quorum of five or seven judges to hear the
appeal
3)
Motion No. 12a – application to adduce further evidence on the state of affairs after the release
of Raja Petra
4)
Motion No. 21a – application to adduce further evidence including that given by the
investigating officer during the contemporaneous sedition trial, in which the investigating
officer admitted he did not investigate the contents of the article ‘Let’s Send the Altantuya
Murderers to Hell’; this article forms one of the grounds for detaining Raja Petra under the ISA
as per the signed detention order
As a preliminary issue, the IBAHRI observer noted that Justice Paul sought to recuse himself
while the arguments pertaining to his overall recusal were being heard. Justice Hashim allowed
him to recuse himself once motion No. 17a had already been announced. Counsel for Raja Petra
commented that sitting with only two judges is prohibited by Section 74(1) of the Courts of Judicature
Act. In response, Justice Hashim cited Section 78 of the same act, which permits proceedings which
have already commenced to continue notwithstanding only having two judges.45
The IBAHRI observer commented that counsel for the Government appeared to be coached by
Justice Makinudin, who claimed the proceedings had commenced for the purposes of Section 78, as
Justice Paul left after the motion number was called.
In arguing motion No. 17a for recusal, counsel for Raja Petra focused on two key issues, including
that Raja Petra had been very critical of Justice Paul for a long time, especially during the ‘Free
Anwar’ campaign, and that Justice Paul had dismissed a habeas corpus application by Raja Petra in
2001 for a Section 73 detention order, which was later overturned with the detention being found
unlawful and in bad faith. The IBAHRI observer noted that Justice Hashim appeared impatient
45 Relevant provisions of the Courts of Judicature Act are included herein as Annex J.
November 2010
during this submission, and chastised counsel for Raja Petra for raising the issue of Raja Petra’s
critiques of Justice Paul. The IBAHRI observer noted Justice Hashim commented that if a judge could
be recused merely on the basis of having been criticised by someone, everyone would write articles
against judges. In response, counsel for Raja Petra raised the point that the issue is the perception of
the public, and that the public would not think Justice Paul could render a fair judgment given these
previous critiques. Counsel for the Government added that the bias is in Raja Petra’s mind, rather
than the Court. After making these statements, counsel for the Government read aloud passages
written by Raja Petra, at which point Justice Hashim asked why Raja Petra was not prosecuted for
contempt of Court.
After a one-hour recess, the Court delivered its verdict that the application to recuse Justice Paul was
without merit. He was invited to take his place on the bench to hear the remaining motions.
The Court next heard motion No. 13a regarding expanding the quorum to five or seven judges.
Submissions made by counsel for Raja Petra argued that the Court has sat on an expanded basis when
complex constitutional issues were being argued. The Court responded that they are not bound by
their own precedents and dismissed the application.
Motions No. 12a and No. 21a both regarded the admissibility of additional evidence. Counsel for
Raja Petra argued that detention under the ISA is a preventative measure and, as such, evidence that
there were no riots or mischief after Raja Petra’s release is important, as it goes towards showing the
wrongful judgment of the Home Minister, if not mala fide intent. Counsel also noted that evidence
indicating that Raja Petra is not a threat to national security is also important for the jurisdictional
error question, as under Section 8, detention of two years cannot be justified if there is a lack of
threat to security since his release. The Court opined that such evidence is irrelevant and dismissed
motion No. 12a.
Motion No. 21a specifically addressed additional evidence arising from the sedition trial of Raja Petra.
In that trial, the investigating officer admitted that he had not carried out any investigations into the
contents of the article ‘Let’s Send the Altantuya Murderers to Hell’. Counsel for Raja Petra sought
to adduce this evidence to demonstrate mala fide or bad faith in the Section 8 detention of Raja
Petra. The IBAHRI observer noted that Justice Paul submitted that as the sedition trial is on-going,
such evidence should not be admitted. Counsel for the Government submitted that this evidence
is irrelevant. The IBAHRI observer noted that when counsel for Raja Petra attempted to respond,
Justice Hashim pointed a finger at him, said ‘Okay, you say relevant. Sit down!’ At this point, the
Justices dismissed motion No. 21a.
Hearing of the substantive issues was then adjourned until the following Monday.
november 2010
Motion for recusal
The IBAHRI is concerned at the lack of reasoning behind the refusal to grant the motion for recusal.
While no written decision is required under Malaysian rules of procedures, the IBAHRI believes that
a formal decision was warranted given the allegations against judicial independence.
The IBAHRI is also concerned by the differing behaviour of the justices towards counsel for the
respective parties. According to reports from the IBAHRI observer, the justices were friendly in
their overtures towards counsel for the Government, whereas they were far more aggressive towards
counsel for Raja Petra. Moreover, the IBAHRI is deeply concerned regarding observations of Justice
Hashim’s behaviour throughout this proceeding. Justice Hashim is reported to have gestured
aggressively towards counsel for Raja Petra, in addition to aggressive verbal behaviour.
Other motions
The IBAHRI is concerned about reports that the judges did not allow counsel for Raja Petra sufficient
time to make their arguments in support of the motions. Given the haste with which the Court
conducted itself, the IBAHRI believes there is a risk the judges predetermined their decisions on
these motions.
The IBAHRI is also concerned at the speed with which the justices made their decisions. The IBAHRI
is concerned that such speed is indicative of having pre-judged the motions before the Court.
November 2010
november 2010
Fourth observation
The IBAHRI observer returned to Malaysia for the review of the decision on motion No. 17a
regarding recusal of Justice Paul.
The hearing
The justice presiding over the hearing included Justice Alauddin bin Dato Mohd Sheriff (President
of the Court of Appeal in Malaysia), Justice Arafin bin Zakaria (Chief Justice of the High Court in
Malaya) and Justice Richard Malanjum (Chief Justice of the High Court in Sabah and Sarawak).
Counsel for Raja Petra included Malik Imtiaz, Azhar Azizan Harun, Ashok Kandiah, AS Sidhu, Justice
Chandra, Sreekant Pillai and Neo Hor Kee. Counsel for the Government included Tun Ahmad Majid
Tun Hamzah, Abdul Wahab Mohamed, Mohd Dusuki Moktar and Najib Zakaria.
Counsel for Raja Petra submitted that as the recusal order was unlawful due to inadequate quorum,
the subsequent orders regarding the remaining three motions from 17 February are void. He began
by arguing that the dismissal of motion No 17a by a quorum of two is invalid. Assuming this dismissal
is invalid, it would render the other dismissals invalid as well, because Justice Paul would have sat
wrongfully on the subsequent motions. In support of these arguments, counsel cited precedent case
law and demonstrated that the Court had not started to hear the case when Justice Paul recused
himself. Rather, only the motion number had been read. As such, counsel for Raja Petra argued the
Court had not been properly constituted to hear the motion, as merely calling the motion cannot
amount to commencement of proceedings. For Section 78(1) to apply, counsel for Raja Petra argued
that the hearing had to have gone to the stage where it would have been inconvenient to constitute a
panel of three.
The Court recessed and reserved judgment to provide a written decision.
Written judgment was released on 9 June 2009, finding that the two-member panel was improperly
constituted and therefore set aside the recusal decision and decisions on the three other orders. It
ordered the Federal Court Registry to schedule a new date for the rehearing of those applications.
The IBAHRI observer noted that the Court acted judiciously in hearing arguments from both sides. The
Court did not cut off counsel for Raja Petra nor did the Court coach or prompt the public prosecutor.
November 2010
november 2010
Conclusion
The habeas corpus proceedings and their appeals discussed in this report highlight a number of
worrying concerns regarding the ISA. The IBAHRI has serious concerns that the ISA, as currently
drafted, can ensure long-term detention of individuals, and, by excluding judicial review of detention
decisions under Section 8(1), seriously threatens an individual’s right to due process under the law.
While amendments to the ISA have reportedly been submitted to the Cabinet, the IBAHRI can find
no evidence of these amendments having been adopted. The IBAHRI maintains that the ISA is
inappropriate legislation and calls for its repeal. At a minimum, the IBAHRI calls for the repeal of
Sections 8B and 8C as part of the amendment process.
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Annex B: IBAHRI Press Release,
7 November 2008
NEWS RELEASE
INTERNATIONAL BAR ASSOCIATION
[For Immediate Release: Friday, 07 November 2008]
IBAHRI welcomes court’s decision to release
Raja Petra Kamarudin
The International Bar Association’s Human Rights Institute (IBAHRI) welcomes today’s
decision by Shah Alam High Court in Malaysia to allow the habeas corpus application of Raja
Petra Kamarudin, an Internet journalist who had been detained under Malaysia’s Internal
Security Act (ISA). As a result of the decision, Raja Petra Kamarudin was released this
afternoon.
Raja Petra Kamarudin was detained on 12 September 2008 on the grounds that his online
articles allegedly insulted Islam and the government leadership. On 22 September 2008,
Home Minister Syed Hamid Albar signed the detention order for Raja Petra Kamarudin to be
held under section 8(1) of the ISA. The next day, Raja Petra Kamarudin’s lawyer Malik Imtiaz
Sarwar made a habeas corpus application against Raja Petra Kamarudin’s detention to the
High Court. An application for habeas corpus seeks a remedy from the court on the basis that
a person’s detention is unlawful.
Due to the use of the ISA’s detention powers, which have been widely criticised and used to
target government dissidents, and the absence of a trial in detentions under the ISA, the
IBAHRI was concerned about the prospects for a fair hearing of the habeas corpus
application.
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The hearing was held on 22 October 2008. In order to monitor whether it complied with
international standards, the IBAHRI sent two international observers to Malaysia from 21-24
October 2008. Ashwin Trikamjee, from South Africa and George Hwang, from Singapore,
attended the hearing and met with a range of stakeholders interested in the case.
‘We are very pleased to hear that Raja Petra Kamarudin has now been freed, said Mr
Trikamjee. ‘This decision is a victory for democracy and the rule of law.’
Richard Goldstone, Co-Chair of the IBA’s Human Rights Institute stated, ‘Both freedom of the
press and the right of habeas corpus are instrumental rights in upholding a free and just
society. Today’s decision is an example of the fundamental role the judiciary can play in
defending these rights.’
The Open Society Institute funded Mr Trikamjee and Mr Hwang’s visit to Malaysia. The
resulting report on the observation will be released shortly.
For further information please contact:
Romana St Matthew - Daniel
Press Office
10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom
Tel: + 44 (0)20 7691 6868
Fax: + 44 (0)20 7691 6544
E-mail: [email protected]
Website: www.ibanet.
Background notes
About the International Bar Association
the global voice of the legal profession
The International Bar Association (IBA), established in 1947, is the world’s leading
organisation of international legal practitioners, bar associations and law societies. Its
membership includes over 30,000 lawyers and nearly 200 bar associations and law societies
spanning every continent. The IBA influences the development of international law reform
and shapes the future of the legal profession throughout the world.
november 2010
The IBA’s administrative office is in London; regional offices are located in São Paulo, Brazil
and Dubai, United Arab Emirates.
Grouped into two divisions – the Legal Practice Division and the Public and Professional
Interest Division – the IBA offers its members access to leading experts and up-to-date
information across all areas of legal practice and professional interest. Through a network of
specialised committees, the IBA enables an exchange of information and opinions regarding
laws, practices and professional responsibilities pertaining to the practice of law globally.
High-quality publications and world-class conferences further provide unrivalled professional
development and networking opportunities for legal practitioners and professional associates.
The IBA’s Bar Issues Commission provides a forum for IBA member bar associations and
law societies to discuss any matter relating to law at an international level.
The IBA’s Human Rights Institute works to promote, protect and enforce human rights
under a just Rule of Law, and to preserve the independence of the judiciary and the legal
profession worldwide.
In partnership with the Open Society Initiative for Southern Africa, the IBA created the
Southern Africa Litigation Centre, based in Johannesburg, South Africa, to promote human
rights and the Rule of Law in Angola, Botswana, the Democratic Republic of Congo, Lesotho,
Malawi, Mozambique, Namibia, Swaziland, Zambia and Zimbabwe.
The IBA was instrumental in establishing the International Legal Assistance Consortium in
Stockholm, Sweden. This global consortium of non-governmental organisations provides
technical legal assistance to post-conflict countries.
Through a grant-funded project, the IBA also maintains an office in The Hague which
manages the IBA’s International Criminal Court (ICC) Monitoring and Outreach
Programme. This office follows the work and proceedings of the ICC, focusing on such
issues as protecting the trial rights of the accused; implementing the 1998 Rome Statute, and
upholding the Rules of Procedure and Evidence.
10th Floor
1 Stephen Street
London W1T 1AT
United Kingdom
Tel: + 44 (0)20 7691 6868
Fax: + 44 (0)20 7691 6544
Website: www.ibanet.
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Annex C: Judgment, First Appeal
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Annex D: Judgment, Second Appeal,
9 June 2009
DALAM MAHKAMAH PERSEKUTUAN MALAYSIA DI PUTRAJAYA
(BIDANGKUASA RAYUAN)
PERMOHONAN JENAYAH NO. 07-1-2009(B)
ANTARA
RAJA PETRA BIN RAJA KAMARUDIN
MENTERI DALAM NEGERI
…PEMOHON
DAN
…..RESPONDEN
(Dalam Mahkamah Persekutuan Malaysia)
Rayuan Jenayah No. 05-13—2008(B)
Antara
Menteri Dalam Negeri
….Perayu
Dan
Raja Petra bin Raja Kamarudin
…Responden)
Quorum: Alauddin bin Dato’ Mohd Sheriff, PCA
Arifin bin Zakaria, CJ (Malaya)
Richard Malanjum CJ (Sabah & Sarawak)
Judgment of the Court
1. Before us is an application by Raja Petra bin Kamarudin (Raja Petra) pursuant to
Rule 137 of the Rules of the Federal Court 1995 (RFC).
2. It is connected to the pending appeal by the Minister of Home Affairs (Criminal
Appeal No. 05-130-2008(B) and the cross-appeal by Raja Petra (Criminal Appeal
No. 05-143-2008).
1
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3. The hearing of the appeal and cross-appeal came before a three-member panel
consisting of Nik Hashim, Augustine Paul and Zulkefli FCJJ on 11.02.2009.
4. At the outset of the hearing learned counsel for Raja Petra applied to recuse
Augustine Paul FCJ. Basically the ground relied on was that there might be a real
danger of bias on the part of the learned Judge since Raja Petra was critical of
him in his website in 2001. It was also submitted that the Judge had dismissed
the habeas corpus application of Raja Petra in 2001 which was subsequently
allowed by the Federal Court.
5. A short adjournment was therefore applied to enable the filing of a formal
application on the recusal. Initially the panel was inclined to dismiss the
application for adjournment. However, on further consideration an adjournment
was allowed on condition that Raja Petra had to file his application the following
day the 12.2.2009.
6. When the formal application on recusal came up for hearing on 17.2.2009
Augustine Paul FCJ voluntarily requested to be excused from hearing it. The
reason was based on the principle that justice must not only be done but also
must be seen to be done.
7. The remaining members, consisting of two-member panel, then proceeded to
hear the application despite the objection by learned counsel for Raja Petra that
it would be unconstitutional to do so.
8. The objection was summarily dismissed on the ground that they were
constitutionally empowered to continue the hearing by virtue of section 78 of the
Courts of Judicature Act 1964 (CJA). Principally the two-member panel in their
Judgment dated 9.4.2009 and forwarded to us on 27.4.2009 took the position:
i. That the proceeding had already commenced on 11.02.2009 in
which Augustine Paul FCJ participated in the exercise of discretion
2
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in allowing the application for adjournment by Raja Petra to enable
him to file the formal application on recusal; and
ii. That the provision of section 78 of CJA applied. The phrase ‘illness
or any other cause’ does not attract the ejusdem generis principle.
The word ‘illness’ does not create a genus so as to limit the general
words ‘any other cause’ to ‘causes of the same kind as illness
which preceded it’. As such the temporary absence of Augustine
Paul FCJ to attend the proceeding for the stated reasons would be
permissible under the words “any other cause” in the section.
9. On the recusal application itself, the two-member panel dismissed it after
considering the arguments submitted. In their Judgment the two-member panel
was of the view that the basis of making the application, namely, ‘there be a real
danger of bias’ was ‘far-fetched and ludicrous’ because:
i. It was Raja Petra who was critical to Augustine Paul FCJ to begin
with in 2001 in his website;
ii. There was no response from Augustine Paul FCJ against the
criticism nor any contempt proceeding taken against Raja Petra for
the criticism; and
iii. As for the dismissal of the application for habeas corpus by Raja
Petra by Augustine Paul FCJ it was held that a Judge ‘is not
precluded from hearing a case against a person when he had in the
past heard another case against the person if the facts in the cases
are different’. It was also observed that in the previous habeas
corpus application by Raja Petra the Judge did not ‘go into the facts
of the case as it was agreed by the parties in that case that the
decision in one case that was being heard shall be binding’ on the
application by Raja Petra.
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10. Upon dismissal of the application the two-member panel invited back Augustine
Paul FCJ to take his seat on the Bench. Three applications by Raja Petra were
then heard and dismissed by the three-member panel, namely:
i. an application to have a quorum of 5 or 7 Judges to hear the
appeal and cross-appeal;
ii. an application for leave to adduce further evidence, that is,
‘evidence of the state of affairs’ since his release; and
iii. an application for leave to adduce further evidence, that is,
evidence of admissions by investigating officer pertaining to matters
as the basis of Minister’s discretion.
11. Raja Petra is now seeking for the review of the decision of the two-member panel
as well as the subsequent decisions of the three-member panel.
12. As against the decision of the two-member panel the application for review is
premised on the following:
i. That there was a quorum failure. The circumstances did not warrant
the invocation of section 78(1) of CJA. The sitting was therefore
unlawful and unconstitutional; and
ii. Apparent bias of the two-member panel.
13. As against the subsequent decisions of the three-member panel the bases of
applying for the review are:
i. The decisions were contaminated ‘by the flawed decision’ for not
recusing Augustine Paul FCJ. The right to a ‘fair and impartial
hearing was compromised by the involvement’ of Augustine Paul
FCJ; and
ii. The decisions in respect of applications for leave to adduce further
evidence ‘were contaminated by apparent bias’.
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14. In order for this present application to succeed, being made pursuant to Rule
137, the established threshold as propounded by this Court in several of its
decisions must be satisfied.
15. Whilst declaring that this Court has the inherent jurisdiction to review its own
decision in order to prevent miscarriage of justice, it is also clearly spelt out that
such exercise must be carried out sparingly and only in exceptional cases. In no
case the jurisdiction should be abused. Further, under ‘no circumstances should
the court position itself as if it were hearing an appeal and decide the case as
such. In other words, it is not for the court to consider whether this court had or
had not made a correct decision on the facts. That is a matter of opinion. Even
on the issue of law, it is not for this court to determine whether this court had
earlier, in the same case, interpreted or applied the law correctly or not. That too
is a matter of opinion’. per Abdul Hamid Mohamad CJ (as he then was) in Asean
Security Paper Mills Sdn Bhd v. Mitsui Sumitomo Insurance (Malaysia) Bhd
[2008] 6 CLJ 1.
16. Although this Court has taken a very cautious approach when dealing with an
application under Rule 137 it has also been made plain that its earlier decisions
are merely instances. Emphasis was made that ‘it is not wise to even attempt to
list out the other instances where this court should exercise such discretion. It is
best to leave the question open and decide the applications as they come before
this court.’ per Zaki Tun Azmi PCA (as he then was) in Asean Security Paper
Mills Sdn Bhd v. Mitsui Sumitomo Insurance (Malaysia) Bhd (supra).
17. One instance where this Court invoked Rule 137 was due to quorum failure. It
was held that the Court was not duly constituted when it rendered its judgment. It
occurred when there was only one remaining judge on the date of
pronouncement of the judgment. The two others had retired although they had
signed on the judgment earlier. (See: Chia Yan Tek & Anor v Ng Swee Kiat &
Anor (2001) 4 MLJ 1).
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18. In the present case the two-member panel considered the application for the
recusal of Augustine Paul FCJ. Ordinarily such sitting is contrary to section 74(1)
of CJA which stipulates that ‘every proceeding in the Federal Court shall be
heard and disposed of by three Judges or such greater uneven number of
Judges as the Chief Justice may in any particular case determine’.
19. However for the reasons given in their Judgment as indicated above the twomember panel ruled that they could continue with the hearing.
20. With respect we do not think it is tenable to say that the hearing had
commenced just because an application for adjournment was made and allowed.
21. Indeed a similar situation arose in the case of Wan Khairani Bte Wan
Mahmood v Ismail Bin Mohamad & Anor [2007] 4 MLJ 409 before the Court of
Appeal in which Augustine Paul JCA (as he then was) addressed the issue. No
doubt it was a dissenting judgment. However, the issue was not a determinative
point in the majority judgment. Thus, we think it is appropriate in this case to
consider the reasoning given in the dissenting judgment when addressing the
issue. Moreover the provisions in CJA discussed by the learned Judge are in pari
materia with the statutory provisions relevant in this case.
22. In addressing the issue this is what the learned Judge had to say (at page 420):
‘The section (section 42(1) of CJA) is applicable when a judge is unable to
exercise his functions through illness or any other cause in the course of a
proceeding or in the case of a reserved judgment. There is no question of
there being a reserved judgment in this case. So this is a case of a judge
becoming unable to exercise his functions in the course of a proceeding.
The phrase ‘… in the course of a proceeding …’ in s 42(1) of the CJA
is a reference to a proceeding that has already commenced. What
requires consideration is the stage to which the proceeding must
have moved before resort can be had to s 42(1) of the CJA to enable
6
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the remaining judges to continue with the proceeding. It must be
remembered that the object of the section is to prevent the
inconvenience of a rehearing of a proceeding to the parties when a
member of the panel hearing it is unable to continue to do so. This
will certainly not include a proceeding which has been merely called
up for hearing. The phrase ‘… in the course of a proceeding …’ must
therefore refer to a proceeding where its hearing has commenced
and proceeded to such an extent that it will be inconvenient to have
it reheard. In this case when the four matters were called up for hearing
Gopal Sri Ram JCA recused himself from hearing the proceedings on his
own accord after encl 42(a) was withdrawn. At that stage it cannot be said
that the proceedings had commenced for the purpose of s 42(1) of the
CJA. The remaining two judges proceeding with the matters in such
circumstances offends s 38(1) of the CJA which reads as follows:
Subject as hereinafter provided, every proceeding in the court of
Appeal shall be heard and disposed of by three judges or such
greater uneven number of judges as the President may in any
particular case determine.
As s 42(1) of the CJA is inapplicable to the circumstances of this case the
proceedings ought to have been heard before a full quorum within the
meaning of s 38(1) of CJA. Alternatively the application for the interim
orders ought to have been heard by one of the two judges sitting as a
single judge. Neither course was adopted. The result is that the
continuation of the hearing of the proceedings by the remaining two
judges cannot be said to be valid’. (Emphasis added)
23. Exchange those sections referred to by the learned Judge with sections 74(1)
and 78 (1) of CJA and his view becomes very relevant in the present case. The
only difference is that in this case the application for recusal was made by
7
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learned counsel for Raja Petra. In Wan Khairani (supra) the presiding judge
voluntarily recused himself. In our view the difference is immaterial. The
consequence is the same. One less judge in the panel. Hence, except for the
minor difference the events which transpired in both cases are almost identical.
24. The question therefore in this case is whether the hearing of the recusal
application by the two-member panel offended Section 74(1) of CJA. If we were
to follow the view of Augustine Paul FCJ in Wan Khairani (supra) the hearing did
offend the provision. When adjournment was allowed the proceeding had not
come to a stage where ‘its hearing has commenced and proceeded to such an
extent that it will be inconvenient to have it reheard’. In our view this approach
makes sense. We have no hesitation in adopting it in coming to our decision in
this case. In fact even in trial cases it was held that ‘in the context the
commencement of trial must mean the commencement of the examination,
cross-examination and re-examination of one or more witnesses.’ (See:
Savrimuthu v PP [1987] 2 MLJ 173).
25. Admittedly any grant or refusal of adjournment involves an exercise of discretion.
In this case a short adjournment was granted by the three member panel.
However, in our view merely considering an application for an adjournment
cannot be said to have set the substantive matter in motion. In Wan Khairani
(supra) the presiding judge recused himself when the four matters were called
up. In the present case an application to have Augustine Paul FCJ recused was
made when the matter was called up. In Wan Khairani (supra) it was the view of
Augustine Paul JCA (as he then was) that at ‘that stage it cannot be said that the
proceedings had commenced for the purpose of s 42(1) of the CJA. The
remaining two judges proceeding with the matters in such circumstances offends
s 38(1) of the CJA’. We find no difference in the present case. It cannot be said
that the proceeding had commenced so as to justify the invocation of section
78(1) of CJA merely because an adjournment was allowed to enable a formal
application for recusal to be filed.
8
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26. Accordingly, when the two-member panel proceeded to hear the recusal
application, section 74(1) of CJA was offended. Unlike in Wan Khairani (supra)
where the majority judgment was dealing with an order which even a single judge
could hear, the present case did not have that option.
27. It is therefore our considered opinion that there was a quorum failure. This is an
appropriate case for the exercise of the inherent power of this Court as
crystallized in Rule 137. Thus, the decision to dismiss the application for recusal
and the order made to invite Augustine Paul FCJ to take his seat should be set
aside.
28. In view of our foregoing conclusion it is not necessary for us to consider the other
arguments advanced by both sides. Suffice to say that whichever way we would
have ruled on those issues it would not have made us change our decision.
29. Finally, as was done in Chia Yan Tek (supra) we would allow Enclosure 2(a) to
the extent that we set aside the decision and order of the two-member panel in
respect of the application to recuse Augustine Paul FCJ (Encl. 17(a). It follows
that the other decisions and orders in relation to Encl. 12(a), 13(a) and 21 (a)
made subsequent to the impugned decision and order are hereby set aside as
well. The Federal Court Registry will fix a new date for the rehearing of these
applications.
(Tan Sri Richard Malanjum)
Chief Judge (Sabah & Sarawak)
Date: 9.6.2009
9
November 2010
Date of Hearing: 23.2.2009
Date of Decision: 9.6.2009
Counsel for Appellant:
Malik Imtiaz Sarwar
( Azhar Azizan Harun, Ashok Kandiah, J. Chandra
and Neoh Hor Kee with him)
Solicitors for Appellant:
Messrs Matthews Hun Kandiah
Advocates & Solicitors
Suite 1201B, 12th Floor, Menara Choy Fook On, 1B,
Jalan Yong Shook Lin, Petaling Jaya, 40650,
Selangor Darul Ehsan, Malaysia
Counsel for Respondent:
Tun Majid bin Tun Hamzah DPP
(Abdul Wahab bin Mohamed SFC, Najib bin Zakaria
SFC with him)
Jabatan Peguam Negara
Aras 7, Blok C3, Parcel C, Presint 1, Pusat
Pentadbiran Kerajaan Persukutuan, Putrajaya.
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Annex E: Relevant provisions
of
Malaysian Constitution
Attachment E: Relevant provisions of Malaysian Constitution
Article 5:
1) No person shall be deprived of his life or personal liberty, save in accordance
with law.
2) Where complaint is made to a High Court or any judge thereof that a person is
being unlawfully detained, the court shall inquire into the complaint and,
unless satisfied that the detention is lawful, shall order him to be produced
before the court and release him.
3) Where a person is arrested he shall be informed as soon as may be of the
grounds of his arrest and shall be allowed to consult and be defended by a
legal practitioner of his choice.
4) Where a person is arrested and not released he shall without unreasonable
delay, and in any case within twenty-four hours (excluding the time of any
necessary journey) be produced before a magistrate and shall not be further
detained in custody without the magistrate’s authority:
Provided that this Clause shall not apply to the arrest or detention of any
person under the existing law relating to restricted residence, and all the
provisions of this Clause shall be deemed to have been an integral part of this
Article as from Merdeka Day.
5) Clauses (3) and (4) do not apply to an enemy alien.
Article 10:
1) Subject to Clauses (2), (3) and (4) –
a) Every citizen has the right to freedom of speech and expression;
b) All citizens have the right to assemble peaceably and without arms;
c) All citizens have the right to form associations.
2) Parliament may be law impose –
a) On the rights conferred by paragraph (a) of Clause (1), such restrictions as
it deems necessary or expedient in the interest of the security of the
Federation or any part thereof, friendly relations with other countries,
November 2010
public order or morality and restrictions designed to protect the privileges
of Parliament or of any Legislative Assembly or to provide against
contempt of court, defamation, or incitement to any offence;
b) On the right conferred by paragraph (b) of Clause (1), such restrictions as
Federation or any part thereof, or public order;
c) On the right conferred by paragraph (c) of Clause (1), such restrictions as
Federation or any part thereof, public order or morality.
3) Restrictions on the right to form associations conferred by paragraph (c) of
Clause (1) may also be imposed by any law relating to labour or education.
4) In imposing restrictions in the interest of the security of the Federation or any
part thereof or public order under Clause (2)(a), Parliament may pass law
prohibiting the questioning of any matter, right, status, privilege, sovereignty
or prerogative established or protected by the provisions of Part III, article
152, 153 or 181 otherwise than in relation to the implementation thereof as
may be specified in such law.
Article 149:
1) If an act of parliament recites that action has been taken or threatened by any
substantial body of persons, whether inside or outside the Federation –
a) To cause, or to cause a substantial number of citizens to fear, organised
violence against persons or property; or
b) To excite disaffection against the Yang di-Pertuan Agong or any
Government in the Federation; or
c) To promote feelings of ill-will and hostility between different races or
other classes of the population likely to cause violence; or
d) To procure the alteration, otherwise than by lawful means, or anything by
law established; or
e) Which is prejudicial to the maintenance or the functioning of any supply or
service to the public or any class of the public in the Federation or any part
thereof; or
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f) Which is prejudicial to public order in, or the security of, the Federation or
any part thereof,
Any provision of that law designed to stop or prevent that action is valid
notwithstanding that it is inconsistent with any of the provisions of Article 5,
9, 10 or 13, or would apart from this Article be outside the legislative power of
Parliament; and Article 79 shall not apply to a Bill for such an Act or any
amendment to such a Bill.
2) A law containing such a recital as is mentioned in Clause (1) shall, if not
sooner repealed, cease to have effect if resolutions are passed by both Houses
of Parliament annulling such law, but without prejudice to anything previously
done by virtue thereof or to the power of Parliament to make a new law under
this Article.
Article 153:
1) It shall be the responsibility of the Yang di-Pertuan Agong to safeguard the
special position of Malays and natives of the States of Sabah and Sarawak and
the legitimate interests of other communities in accordance with the provisions
of this Article.
2) Notwithstanding anything in this Constitution, but subject to the provisions of
Article 140 and of this Article, the Yang di-Pertuan Agong shall exercise his
functions under this Constitution and federal law in such manner as may be
necessary to safeguard the special provision of the Malays and natives of any
of the States of Sabah and Sarawak and to ensure the reservation for Malays
and natives of any of the States of Sabah and Sarawak of such proportion as he
may deem reasonable of positions in the public service (other than the public
service of a State) and of scholarships, exhibitions and other similar
educational or training privileges or special facilities given or accorded by the
Federal Government and, when any permit or license for the operation of any
trade or business is required by federal law, then, subject to the provisions of
that law and this Article, of such permits and licenses.
3) The Yang di-Pertuan Agong may, in order to ensure in accordance with Clause
(2) the reservation to Malays and natives of any of the States of Sabah and
November 2010
Sarawak or positions in the public service and of scholarships, exhibitions and
other education or training privileges or special facilities, give such general
directions as may be required for that purpose to any Commission to which
Part X applies or to any authority charged with responsibility for the grant of
such scholarships, exhibitions or other educational or training privileges or
special facilities; and the Commission or authority shall duly comply with the
directions.
4) In exercising his functions under this Constitution and federal law in
accordance with Clauses (1) to (3) the Yang di-Pertuan Agong shall not
deprive any person of any public office held by him or of the continuance of
any scholarship, exhibition or other educational or training privileges or
special facilities enjoyed by him.
5) This Article does not derogate from the provisions of Article 136.
6) Where by existing federal law a permit or license is required for the operation
of any trade or business the Yang di-Pertuan Agong may exercise his
functions under that law in such manner, or give such general directions to any
authority charged under that law with the grant of such permits or licenses for
Malays and natives of any of the States of Sabah and Sarawak as the Yang diPertuan Agong may deem reasonable, and the authority shall duly comply
with the directions.
7) Nothing in this Article shall operate to deprive or authorise the deprivation of
any person of any right, privilege, permit or license accrued or enjoyed or held
by him or to authorised a refusal to renew to any person such permit or license
or a refusal to grant to the heirs, successors or assigns of a person any permit
or license when the renewal or grant might reasonably be expected in the
ordinary course of events.
8) Notwithstanding anything in this Constitution, where by any federal law any
permit or license is required for the operation of any trade or business, that law
may provide for the reservation of a proportion of such permits or licences for
Malays and natives of any of the States of Sabah and Sarawak; but no such
law shall for the purpose of ensuring such a reservation –
a) Deprive or authorise the deprivation of any person of any right, privilege,
permit or license accrued to or enjoyed or held by him;
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b) Authorise a refusal to renew to any person any such permit or license or a
b) Authorise
a refusal
to heirs,
renewsuccessor
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any such
permit
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refusal to grant
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8A)
the ordinary course of events.
Notwithstanding anything in this Constitution, where in any University,
8A)
Notwithstanding
in this
Constitution,
where
in any University,
College
and otheranything
educational
institution
providing
education
after
College andCertificate
other educational
institution
after
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or its providing
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the number
of places
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of places
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required
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reservation
of such proportion
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and natives
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Agong may
deemofreasonable,
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deem reasonable, and the authority shall duly comply with the directions.
9) Nothing in this Article shall empower Parliament to restrict business or trade
9) Nothing
thispurpose
Articleof
shall
empowerfor
Parliament
to restrict
trade
solely forinthe
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States of Sabah and Sarawak.
9A) In this Article the expression ‘natives’ in relation to the State of Sabah or
9A)
In
this Article
‘natives’
in relation
to the State
of Sabah or
Sarawak
shall the
haveexpression
the meaning
assigned
to it in Article
161A.
Sarawak shall have the meaning assigned to it in Article 161A.
November 2010
10) The Constitution of the State of any Ruler may make provision corresponding
(with the necessary modifications) to the provisions of this Article.
november 2010
Annex F: Relevant provisions
of
the Internal Security Act
Attachment F – Provisions of the Internal Security Act
The preamble:
The Internal Security Act, 1960
An Act to provide for the internal security of Malaysia, preventative detention, the
prevention of subversion, the suppression of organised violence against persons and
properties in specified areas of Malaysia and for matters incidental thereto.
WHEREAS action has been taken and further action is threatened by a substantial
body of persons both inside and outside Malaysia –
1) To cause, and to cause a substantial number of citizens to fear, organised
violence against persons and property; and
2) To procure the alteration, otherwise than by lawful means, of the lawful
Government of Malaysia by law established;
AND WHEREAS the action taken and threatened is prejudicial to the security of
Malaysia;
AND WHEREAS Parliament considers it necessary to stop or prevent that action;
Now therefore PURSUANT to Article 149 of the Constitution
BE IT ENACTED by the Duli Yang Maha Mulia Seri Paduka Baginda Yang diPertuan Agong with the advice and consent of the Dewan Negara and Dewan Ra’ayat
in Parliament assembled, and by the authority of the same, as follows:
Section 8: Power to order detention or restriction of persons.
1) If the Minister is satisfied that the detention of any person is necessary with a
view to preventing him from acting in any manner prejudicial to the security
of Malaysia or any part thereof or to the maintenance of essential services
therein or to the economic life thereof, he may make an order (hereinafter
referred to as a detention order) directing that that person be detained for any
period not exceeding two years.
November 2010
2) In subsections (1) ‘essential services’ means any service, business, trade,
undertaking, manufacture or occupation included in the Third Schedule.
3) Every person detained in pursuance of a detention order shall be detained in
such place (hereinafter referred to a place of detention) as the Minister may
direct and in accordance with any instructions issued by the Minister and any
rules made under subsection (4).
4) The Minister may by rules provide for the maintenance and management of
places of detention end [sic] for the discipline and treatment of persons
detained therein, and may make different rules for different places of
detention.
5) If the Minister is satisfied that for any of the purposes mentioned in subsection
(1) it is necessary that control and supervision should be exercised over any
person or that restrictions and conditions should be imposed upon that person
in respect of his activities, freedom of movement or places of residence or
employment, but that for that purpose it is unnecessary to detain him, he may
make an order (hereinafter referred to as a restriction order) imposing upon
that person all or any of the following restrictions and conditions:
a) For imposing upon that person such restrictions as may be specified in the
order in respect of his activities and the places of his residence and
employment;
b) For prohibiting him from being out of doors between such hours as may be
specified in the order, except under the authority of a written permit
granted by such authority or person as may be so specified;
c) For requiring him to notify his movements in such manner at such times
and to such authority or person as may be specified in the order;
d) For prohibiting him from addressing public meetings or from holding
office in, or taking part in the activities or acting as adviser to, any
organisation or association, or from taking part in any political activities;
and
e) For prohibiting him from travelling beyond the limits of Malaysia or any
part thereof specified in the order except in accordance with permission
given to him by such authority or person as may be specified in such order.
6) Every restriction order shall continue in force for such period, not exceeding
two years, as may be specified therein, and may include a direction by the
november 2010
Minister that the person in respect of whom it is made shall enter into a bond
with or without sureties and in such sum as may be specified for his due
compliance with the restrictions and conditions imposed upon him.
7) The Minister may direct that the duration of any detention order or restriction
order be extended for such further period, not exceeding two years, as he may
specify, and thereafter for such further periods, not exceeding two years at a
time, as he may specify, either –
a) On the same grounds as those on which the order was originally made;
b) On grounds different from those on which the order was originally made;
or
c) Partly on the same grounds and partly on different grounds;
Provided that if a detention order is extended on different grounds or partly on
different grounds the person to whom it relates shall have the same rights
under section 11 as if the order extended aforesaid was a fresh order, and
section 12(1) shall apply as if for the words ‘such person was detained’ the
words ‘his detention order was extended’ were substituted.
8) The Minister may from time to time by notice in writing served on a person
who is the subject of a restriction order vary, cancel or add to any restrictions
or conditions imposed upon that person by that order, and the restrictions or
conditions so varied and any additional restrictions or conditions so imposed
shall, unless sooner cancelled, continue in force for the unexpired portion of
the period specified under subsection (6) or (7).
8A) No detention order shall be invalid or inoperative by reason –
a) That the person to whom it relates –
i) Was immediately after the making of the detention order detained in
any place other than a place of detention referred to in section 8;
ii) Continued to be detained immediately after the making of the detention
order in the place in which he was detained under section 73 before his
removal to a place of detention referred to in section 8(3),
notwithstanding that the maximum period of such detention under
section 73(3) had expired; or
November 2010
iii) Was during the duration of the detention order on journey in police
custody or any other custody to a place of detention referred to in
section 8(3); or
b) That the detention order was served on him at any place other than the
place of detention referred to in section 8(3), or that there was any defect
relating to its service upon him.
8B)
1) There shall be no judicial review in any court of, and no court shall have or
exercise any jurisdiction in respect of, any act done or decision made by the
Yang di-Pertuan Agong or the Minister in their exercise of their discretionary
power in accordance with this Act, save in regard to any question on
compliance with any procedural requirement in this Act governing such act or
decision.
2) The exception in regard to any question on compliance with any procedural
requirement in subsections (1) shall not apply where the grounds are as
described in section 8A.
8C): In this Act, ‘judicial review’ includes proceedings instituted by way of –
a) An application for any of the prerogative orders of mandamus, prohibition
and certiorari;
b) An application for a declaration or an injunction;
c) A writ of habeas corpus; and
d) Any other suit, action or other legal proceedings relating to or arising out
of any act done or decision made by the Yang di-Pertuan Agong or the
Minister in accordance with this Act.
8D):
1) Sections 8B and 8C shall apply to any proceedings instituted by way of
judicial review of any act done or decision made by the Yang di-Pertuan
Agong or the Minister under this Act, whether such proceedings were
november 2010
instituted before or after the coming into force of the Internal Security
(Amendment) Act 1969.
2) A reference to proceedings in subsection (1) shall not include a reference to
proceedings which had concluded and in respect of which final decision of the
court had been given before the coming into force of the Internal Security
(Amendment) Act 1989, or to any appeal or application to appeal against such
final decision.
Section 73: Power to detain suspected persons.
1) Any police officer may without warrant arrest and detain pending enquiries
any person in respect of whom he has reason to believe –
a) And that there are grounds which would justify his detention under section
8; and
b) That he has acted or is about to act or is likely to act in any manner
prejudicial to the security of Malaysia or any part thereof or to the
maintenance or essential services therein or to the economic life there.
2) Any police officer may without warrant arrest and detain pending enquiries
any person, who upon being questioned by the officer fails to satisfy the
officer as to his identify or as to the purposes for which he is in the place
where he is found and who the officer suspects has acted or is about to act in
any manner prejudicial to the security of Malaysia or any part thereof or to the
maintenance of essential services therein or to the economic life there.
3) Any person arrested under this section may be detained for a period not
exceeding sixty days without an order of detention having been made in
respect of him under section 8: provided that a) He shall not be detained for longer than twenty-four hours except with the
authority of a police officer of or above the rank of Inspector;
b) He shall not be detained for more than forty-eight hours except with the
authority of a police officer of or above the rank of Assistant
Superintendent; and
c) He shall not be detained for more than thirty days unless a police officer of
or above the rank of Deputy Superintendent has reported the circumstances
of the arrest and detention to the Inspector-General or to a police officer
November 2010
designated by the Inspector-General in that behalf, who shall forthwith
report the same to the Minister.
4) Repealed.
5) Repealed.
6) The powers conferred upon a police officer by sub-sections (1) and (2) may be
exercised by any member of the security forces, any person performing the
duties of guard or watchman in a protected place and by any other person
generally authorised in that behalf by a Chief Police Officer.
7) Any person detained under the powers conferred by this section shall be
deemed to be in lawful custody, and may be detained in any prison, or in any
police station or in any other similar place authorised generally or specially by
the Minister.
november 2010
Annex G: Outline Submission for the
Applicant, dated 21 October 2008
DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM
(BAHAGIAN JENAYAH)
PERMOHONAN JENAYAH NO. MTJ1-44-217 TAHUN 2008
Dalam perkara satu permohonan oleh Raja
Petra bin Raja Kamarudin untuk arahan dalam
hal Habeas Corpus
DAN
Dalam perkara Fasal 5(1), 5(2) , 5 (3), 11,
80 dan 149, Perlembagaan Persekutuan
DAN
Dalam perkara Seksyen 8, Akta Keselamatan
Dalam Negeri , 1960.
DAN
Dalam perkara Seksyen 365(1), Kanun Aturcara
Jenayah.
ANTARA
RAJA PETRA BIN RAJA KAMARUDIN
…PEMOHON
DAN
MENTERI DALAM NEGERI
…RESPONDEN
OUTLINE SUBMISSION (2)
(Counsel for the Applicant)
I
Introduction
1.
The application before the Court is one made by the Applicant pursuant to
section 365(1) of the Criminal Procedure Code for an order of habeas corpus
against the Respondent. It is common ground that the Applicant has been, and
is still being, detained by the Respondent under section 8 of the Internal
Security Act, 1960 (the “ISA”) since 23.09.2008.
2.
In essence, the Applicant contends that his detention is unlawful for not
having
November 2010
been effected in accordance
withthe
thedelicate
Federal
Constitution
(“FC”)
andprocess Malaysia:
balance
between security
and due
1
97
Security Act, 1960 (the “ISA”) since 23.09.2008.
2.
In essence, the Applicant contends that his detention is unlawful for not
having been effected in accordance with the Federal Constitution (“FC”) and
the ISA. Contentions in this regard have been sectioned into those pertaining
1
to the application of the FC and the ISA, and those pertaining to matters of
bad faith.
3.
The following affidavits have been filed in support of the application:
3.1
Affidavit of Mable @ Marina Lee affirmed on 28.09.2008 (“Mable’s
Affidavit”);
3.2
Affidavit of the Applicant affirmed on 29.09.2008 (“RPK’s
Affidavit”); and
3.3
Supplementary Affidavit of Mable @ Marina Lee affirmed on
17.10.2008 (“Supplementary Affidavit”).
4.
Affidavits have been filed in opposition. These shall be referred to in the
course of submission.
5.
This submission is made to compliment and expand upon the contents of the
Outline Submission (1) (Counsel for the Applicant) dated 21.10.2008
[“Outline Submission (1)”].
II
The Applicant’s Arrest
6.
The Applicant’s arrest took place in the following manner:
6.1
The arrest took place on 12.9.2008. Several persons came to the
Applicant’s house. Only one wore uniform and identified himself as
ASP Yusof. The others were not uniformed and did not identify
themselves RPK’s Affidavit, para. 5].
6.2
They also did not, initially, inform the purpose of their visit [RPK’s
Affidavit, paras. 8-17];
2 process
98 Malaysia: the delicate balance between security and due
november 2010
6.3
They went into the house and ASP Yusof asked where the Applicant’s
computer was. They then proceeded to search the house and a car
bearing registration number WPT 9071. They took documents and
compact discs and prepared a inventory [RPK’s Affidavit, paras. 817];
6.4
At this point, ASP Yusof, in answer to a question from the Applicant’s
wife, said that the Applicant was to be detained under section 73 (1) of
the ISA [RPK’s Affidavit, para. 17]; and
6.5
The Applicant was then bundled into a car [RPK’s Affidavit, para.
19].
III
The events at the police station
7.
The Applicant was brought to the Jalan Travers police station. He was given a
form to sign. It contained 2 vague grounds of detention, namely, insulting
Islam and threat to national security [RPK’s Affidavit, paras. 20-21].
8.
He signed the form and was blindfolded, handcuffed and brought to a cell at
an unknown location [RPK’s Affidavit, para. 22].
IV
The Interrogations and Harassments
9.
On 14.9.2008, the Applicant was handcuffed and blindfolded and brought to a
room. He was asked to sign a document but he refused to do so. He was later
interrogated by 6 persons. The interrogations were carried out vide questions
directly attacking the Applicant’s faith in Islam [RPK’s Affidavit, paras. 2531].
10.
On 16.09.2008, harassments were carried out on the Applicant by persons
unknown. The harassments were calculated at depriving him of his sleep and
were designed to unsettle and/or provoke [RPK’s Affidavit, paras. 34-38].
3
November 2010
11.
On 20.9.2008 and 21.9.2008, the Applicant was further interrogated. [RPK’s
Affidavit, para. 46]. However, it appears that the interrogations were aimed at
refuting what the Applicant had written or arguing with what was written by
him. It was not an effort to ascertain whether he was a threat to national
security and if so, how he was such a threat.
12.
At this point, questions were also being asked about the owner of Malaysia
Today; the extent of the Applicant’s involvement in and his knowledge on the
article respecting the Altantuya’s murder and a Statutory Declaration sworn by
Applicant . [RPK’s Affidavit, para. 46]. This topic was entirely out of the
purview of the detention as stated in the detention notice signed by the
Applicant earlier (paragraph 6 above). There was absolutely no effort to
investigate the Applicant’s involvement in any kind of acts affecting the
national security.
13.
The Applicant was then told a statement was being prepared for him to sign.
This was on 21.9.2008. He was told that this statement was to be the basis of
any recommendations to the Respondent. . [RPK’s Affidavit, para. 47].
14.
Interrogations continued on 22.9.2008 until about 3pm. Again he was told that
a statement was to be signed by him. He was then asked to go back to his cell.
However, he was brought back to his cell a short while later. He was the
served a section 8 detention order signed by the Respondent . [RPK’s
Affidavit, p. 49] by DSP Naseer. The statement that he was supposed to sign
was never given to the Applicant . [RPK’s Affidavit, para. 48].
15.
The Applicant’s solicitors had filed a habeas corpus application against the
section 73 detention on 16.9.2008. It was originally fixed for hearing on
26.9.2008. However, the Chief Judge of Malaya brought it forward to
23.9.2008 before Criminal Court 1 KLHC. On 23.9.2008, Counsel for the
Inspector-General of Police informed the Court that a section 8 order had been
made and the 1st habeas corpus application was therefore academic [Mable’s
Affidavit, paras. 27-33].
4
november 2010
16.
The 1st habeas corpus application is still pending.
V
Bad faith
17.
The case of Mohd Ezam Mohd. Noor v Ketua Polis Negara & Other Appeals
[2002] 4 CLJ 309 [IAP, Tab 16] defined mala fides at pp. 330 as follows:
“Mala fide does not mean at all a malicious intention. It normally means that a
power is exercised for a collateral or ulterior purpose ie, for a purpose other
than the purpose for which it is professed to have been exercised" per Peh
Swee Chin J, (as he then was) in Karpal Singh v Menteri Hal Ehwal Dalam
Negeri, Malaysia [1988] 1 CLJ (Rep) 632.”
18.
Ezam’s case [IAP, Tab 16] further stated at pages 344 and 379 that the
Respondent cannot hide behind the cloak of national security as the Court has
the power to examine whether the Respondent’s decision is in fact based on
national security.
19.
It is submitted that any mala fide afflicting the section 73 detention by the
police would affect the Minister’s decision under section 8, ISA. This is borne
out of the facts deposed above. See:
19.1
Ezam’s case [IAP, Tab 16]; and
19.2
Chng Suan Tze v The Minister of Home Affairs & Ors & other
Appeals [1989] 1 MLJ 69 [IAP, Tab 25].
20.
The following cases are distinguishable:
20.1
Mohd Faizal Haris v Timbalan Menteri Dalam Negeri, Malaysia &
Ors [2005] 4 CLJ 613 [IAP, Tab 26] – the issues pertaining to the
ISA were obiter as this case concerned a detention under the
Dangerous Drugs (Special Preventive Measures) Act 1985. The
observation at page 628, para h is obiter dicta and not binding; and
5
November 2010
20.2
Abdul Razak Baharudin & Ors v Ketua Polis Negara & Ors and
another appeal [2005] 4 CLJ 445 [IAP, Tab 27] – this case is of
limited application as it is only applicable to its own set of facts and
arguments put forth in this case. The question of jurisdictional error in
Anisminic’s case [IAP, Tab 9] was neither raised nor considered nor
decided in this case.
21.
Therefore, Mohd Faizal Haris and Abdul Razak Baharudin are not binding
upon this Honourable Court regarding the effect of bad faith upon detentions
made under s.8(1), ISA [IAP, Tab 2]. Neither one of these cases referred to,
considered and/or decided upon the issue of jurisdictional error in Anisminic’s
case [IAP, Tab 9]. See The Co-Operative Central Bank Ltd. v Feyen
Development Sdn. Bhd. [1997] 3 CLJ 365 [IAP, Tab 28].
22.
It is submitted that the bad faith in this case goes towards the exercise of
power in itself. Thus, it goes to the jurisdiction and/or error of jurisdiction as
propounded in Anisminic’s case [IAP, Tab 9] as was stated in Outline
Submission (1).
23.
It is further submitted that the Minister’s decision is ultra vires the ISA.
24.
The case at hand bears the same mark as that in Ezam’s case [IAP, Tab 16]
as:
24.1
The police made a newspaper statement as to the reasons for the arrest
and detention [RPK’s Affidavit, p. 152];
24.2
RPK was never told of the reasons for his arrest and/or detention
except for the document which he was asked to sign at the Jalan
Travers police station which merely says that he had insulted Islam and
that he was a threat to national security. No fact was made available to
him;
6
november 2010
24.3
The so called interrogations were not focusing on ascertaining that he
was or how he was a threat to national security but rather they were
argumentative in nature [RPK’s Affidavit, paras. 30 & 31];
24.4
The interrogations had later introduced a new element into the ground
for detention when he was interrogated on his involvement in the
article “Let’s send the Altantuya murderers to hell” and a Statutory
Declaration which he had earlier signed. The police wanted to know
the source of his information. It was a fishing expedition [RPK’s
Affidavit, para. 46.4];
24.5
No statement was ever formally recorded, typed out, read out to the
Applicant and produced for his signature although he was told such
statement was being prepared . [RPK’s Affidavit, paras. 46 & 47];
24.6
Legal representation, although allowed, was made without the element
of confidentiality as the door was left ajar at the police’s insistence and
policemen were stationed within earshot [RPK’s Affidavit, paras. 44
& 45]; and
24.7
The section 8 order was hastily made to circumvent the hearing of the
1st habeas corpus application on the 22.9.2008 as the hearing was fixed
for hearing on 23.9.2008 . [RPK’s Affidavit, para. 50].
VI
The Section 8 Order By The Minister – Outside Jurisdiction
25.
Under Section 8(1), ISA [IAP, Tab 2], the Respondent has to be satisfied that
the detention was necessary to prevent the detainee from acting in any manner
prejudicial to the security of Malaysia. The Respondent therefore must look at
all facts and circumstances, at a level sufficient for him to form an opinion that
the Applicant was a threat to national security before he could be satisfied that
the Applicant’s detention was necessary to prevent him from acting in any
manner prejudicial to the security of Malaysia. This order was made
significantly on 22.9.2008.
7
November 2010
26.
First of all, it has to be pointed out that the section 8 order is preventive in
nature [RPK’s Affidavit, p. 49]. It means the Respondent is detaining a
person to prevent him from acting in a manner prejudicial to the security of
Malaysia. The use of the word “mencegah” is instructive on the preventive
nature of that order.
27.
The acts specified in the grounds [RPK’s Affidavit, pp. 51-54] are all acts
which have been committed. There is no allegation at all that these acts were
being continued or threatened to be continued. In fact, if they were threatened
to be continued, they could quite easily be prevented for example by barring
access to the Malaysia Today website as done by the Malaysian
Communications and Multimedia Commission (“MCMC”) in 28.08.2008
[Marina’s affidavit, para. 24.4]. The MCMC allowed access to the website
in question on 11.9.2008 and on 12.9.2008 the Applicant was arrested.
28.
As there is no act which is alleged to be done in the future, which could
prejudice the security of Malaysia, the section 8 detention order is obviously
an exercise which was ultra vires the ISA and also an exercise of power which
was mala fide in nature. There are various actions under other laws that are
available [Respondent’s Affidavit affirmed on 16.10.2008, para. 17].
29.
Secondly, the section 8 detention order was made on 22.9.2008. It was
obviously calculated as a move to circumvent the hearing of the 1st habeas
corpus application which was then fixed for hearing a day later, ie on
23.9.2008. On that day, Counsel for the IGP submitted that the matter was
academic.
30.
Therefore, the order was made not for the purpose of preventing RPK from
acting in any manner prejudicial to national security.
31.
In view of Para. 6 of Outline Submission (1) and para. 25 above, it is an
obvious inference that the detention of the Applicant was not prompted by
concerns about national security but rather by a desire to silence a vocal and
8
november 2010
influential critic of the government, the political parties and the individuals
that form it. The Respondent had himself indicated that the ISA would be used
as a last resort (Mable’s Affidavit, Exhibit “A”, pp. 40, 56 & 65) and that
the Applicant had not heeded warnings (Mable’s Affidavit, Exhibit “A”, pp.
75-76).
VII
Conclusion
32.
In view of the foregoing, an order of habeas corpus is respectfully prayed for.
Dated this 21st day of October, 2008
_____________________
Counsel for the Applicant
This Outline Submission (2) (Counsel for the Applicant) is filed by Tetuan
Mathews Hun Kandiah, solicitors for the Applicant above-named whose address for
service is at Suite 1201B, 12th Floor, Menara Choy Fook On, 1B, Jalan Yong Shook
Lin, Petaling Jaya, 40650 Selangor Darul Ehsan.
(Our Ref: 0940.08.AK)
Tel : 03-7354 8007; Fax: 03- 7954 9007
9
November 2010
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Annex H: Outline Submission
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Annex I: Motion of Malaysian Bar
Council,
dated 20 September 2008
Attachment I: Motion of Malaysian Bar Council, dated 20 September 2008
THE MOTION
WHEREAS
THE MALAYSIAN BAR:
a) Outraged that the Internal Security Act 1960 (‘ISA’) has recently been used to
arrest Raja Petra Kamarudin (a blogger), Tan Hoon Cheng (a journalist) and
Teresa Kok (a member of Parliament);
b) Deeply concerned that at present, there are more than 60 individuals detained
under the ISA;
c) Reiterating its earlier call, by its resolution of 15 March 2008, for the
immediate and unconditional release of all persons presently detained without
trial, including Manoharan a/l Malayalam, Uthayakumar a/l Ponnusamy,
Kengadharan a/l Ramasamy, Ganabatirau a/l Veraman and Vasantha Kumar
a/l Krishnan;
d) Asserting the importance of upholding the Rule of Law, as enshrined in the
Federal Constitution and the Rukunegara;
e) Reaffirming the Bar's continued and unequivocal opposition to the ISA and all
laws that allow for the detention of persons without trial, as they are
unconstitutional, oppressive and undermine the Rule of Law;
f) Taking note that, as a member of the United Nations Human Rights Council,
the Government must fulfil the pledges it made, inter alia, to ‘promote and
protect human rights and fundamental freedoms’ and to promote ‘a free media,
including in cyberspace’; and
g) Deeply concerned that on 11 September 2008, the Government sent showcause letters to three newspapers namely, Sin Chew Daily, The Sun and Suara
Keadilan, regarding the reporting of certain issues.
NOW RESOLVES AS FOLLOWS, THAT:
1) The Malaysian Bar strongly condemns the arrests of Raja Petra Kamarudin,
Tan Hoon Cheng and Teresa Kok and strongly calls upon the Government to
November 2010
immediately and unconditionally release Raja Petra Kamarudin, who is still
being detained.
2) The Malaysian Bar strongly calls upon the Government to immediately and
unconditionally release all persons presently detained without trial, including
Manoharan a/l Malayalam, Uthayakumar a/l Ponnusamy, Kengadharan a/l
Ramasamy, Ganabatirau a/l Veraman and Vasantha Kumar a/l Krishnan, who
were ordered to be detained for two years from 13 December 2007.
3) The Malaysian Bar strongly calls upon the Government to immediately repeal
the ISA and all other laws that allow for the detention of persons without trial
such as the Emergency (Public Order and Prevention of Crime) Ordinance
1969 and Dangerous Drugs (Special Preventive Measures) Act 1985.
4) The Malaysian Bar strongly condemns the issuance of the three show-cause
letters to Sin Chew Daily, The Sun and Suara Keadilan and strongly calls
upon the Government to immediately withdraw the show-cause letters.
5) The Malaysian Bar calls upon the Government to uphold its pledges to the
United Nations Human Rights Council to promote and protect human rights
and fundamental freedoms and to promote a free media, including in
cyberspace.
6) The Malaysian Bar calls upon the Government to demonstrate its commitment
to, and to uphold, the Rule of Law as enshrined in the Federal Constitution and
the Rukunegara
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Annex J: Relevant provisions of the
Courts
of Judicature Act 1964
Attachment J: Relevant Provisions of the Courts of Judicature Act 1964
74. Composition of the Federal Court
1) Subject as hereinafter provided, every proceeding in the Federal Court shall be
heard and disposed of by three Judges or such greater uneven number of
Judges as the Chief Justice may in any particular case determine.
2) In the absence of the Chief Justice, the most senior member of the Court shall
preside.
78. Continuation of proceedings notwithstanding absence of Judge
1) If, in the course of any proceeding, or, in the case of a reserved judgment, at
any time before delivery of the judgment, any Judge of the Court hearing the
proceeding is unable, through illness or any other cause, to attend the
proceeding or otherwise exercise his functions as a Judge of the Court, the
hearing of the proceeding shall continue before, and judgment or reserved
judgment, as the case may be, shall be given by, the remaining Judges of the
Court, not less than two, and the Court shall, for the purposes of the
proceeding, be deemed to be duly constituted notwithstanding the absence or
inability to act of the Judge as aforesaid.
2) In any such case as is mentioned in subsection (1) the proceeding shall be
determined in accordance with the opinion of the majority of the remaining
Judges of the Court, and, if there is no majority the proceeding shall be
reheard.
November 2010
10th Floor, 1 Stephen Street
London W1T 1AT, United Kingdom
Tel: +44 (0)20 7691 6868
Fax: +44 (0)20 7691 6544
Website: www.ibanet.org

Malaysia: the delicate balance between security and due process

Transcription

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