Paul is fully within his province to claim that it was for the detainees to show that the Internal Security Act (ISA) powers had been exercised mala fide and that the five applicants had failed to prove that the Inspector-General of Police, Tan Sri Norian Mai’s act of arresting the five was mala fide and was not in accordance with the Act.
Paul should have confined himself to what he had himself described as the court’s role “to ascertain what the law is and it cannot afford, or should afford itself, the luxury of going beyond that" as he then can do no wrong.
Unfortunately, in his judgement, Paul had trespassed these limits to involve himself in controversial issues on human rights in the public domain, and a judge who strays into public controversies whether by word or deed must expect public reactions.
Paul did this when he touched on a Press statement by the Human Rights Commission of Malaysia (Suhakam) which called on the authorities to release the detainees immediately and to charge them in open court if they had committed any offence.
The judge said that it would be inappropriate for a person or body of persons to call for the release of persons detained under the ISA and have them prosecuted in an open court as it amounts to an unlawful interference with the lawful exercise of discretion by the detaining authority.
He said: "While I am convinced that Suhakam acts with the best of intentions, it must be realised that it is of prime importance that issues of what the law is, and what it can and should or ought to be, are kept separate so as not to risk confusing the public and, unwittingly, adding the proverbial oil to the fire.”
Paul’s view that it would be inappropriate for anyone to call for the release of ISA detainees or have them charged in open court as it amounts to unlawful interference with the lawful exercise of discretion by the detaining authority is a most preposterous proposition which even the Attorney-General’s Chambers had not dared to advocate since the enactment of the ISA in 1960 - as it would logically mean that all who make such calls could be prosecuted under the Penal Code for the offence of obstructing public servants in the discharge of their public functions!
Is Paul seriously suggesting that the Suhakam Chairman, former
Deputy Prime Minister Tan Sri Musa Hitam and other Commissioners like former
Chief Judge, Tan Sri Dato Haji Anuar bin Dato Haji Zainal Abidin, former
Federal Court judges Tan Sri Harun Mahmud Hashim and Dato’ Mahadev
Shanker had committed criminal offences in making such a call and he is
offering unsolicited advice to the Attorney-General that she should
consider arresting and prosecuting them?
And what would Paul propose the government should do with regard to
foreign governments which make similar calls in similar circumstances -
should Malaysia break diplomatic relations with them for violating the
laws of the country?
By Paul’s logic and reasoning, it would also be improper for any MPs to question the propriety of any ISA arrest in Parliament - which would subvert the very principle of parliamentary democracy in the country.
Paul is fully within his province when he decided that the IGP Tan Sri Norian Mai owed no duty to make any disclosure of the reasons for the ISA arrests, but he must be prepared to be subject to public scrutiny and comment when he said that he agreed with the Senior Deputy Public Prosecutor Datuk Abdul Gani Patail that the Inspector-General of Police must be commended for having made a partial disclosure of facts in his press statement dated April 11 for the reasons for their detention - as there is very strong reason for a reasonable Malaysian to regard what Norian Mai had said as mere “fairy tale” unsubstantiated by any iota of evidence.
When Paul said that it is not the court’s function to act as a court of appeal from discretionary decision of the executive and inquire into the grounds upon which they came to the belief that it was necessary in the interest of the security of Malaysia to detain a person, is he stating his interpretation of the present law or his personal philosophy which is blind to abuses of discretionary powers?
It would be most unfortunate if Paul’s habeas corpus judgement is regarded as a carte blanche by the government that it could wantonly misuse the Internal Security Act against anyone it chooses without fear of any legal check or restraint leading to the police running riot in ISA arrests.
Nobody knows whether the latest tenth ISA detainee, Badaruddin Ismail, 56, arrested by the police while having his breakfast in Hulu Kelang, Selangor this morning had always been on the police-wanted list from the very first day of the ISA crackdown or whether he is the first case of a new police zeal to use the ISA after the Paul Augustine judgement yesterday.
Be that as it may, despite Paul’s judgement, I categorically and without hesitation call for the immediate and unconditional release of Pak Din as well as the other nine ISA detainees or they should be charged in court for an open trial if the police have evidence that they are guilty of criminal offences.
(26/4/2001)