DAP calls for the establishment of an All-Party Parliamentary Committee to seek public views on the continuing relevance of the Internal Security Act and I urge the Prime Minister, Datuk Seri Dr. Mahathir Mohamad to agree to the establishment of such a parliamentary committee as he should have confidence in the 193 Members of Parliament elected in the November 1999 general elections to conduct such a review by holding public hearings throughout the country as well as inviting memorandum and representations from various interested bodies, like Suhakam, the Bar Council, HAKAM, SUARAM, other NGOs as well as political parties.
It will be a mark of the pathetic state in which the Malaysian Parliament has been reduced to if the Prime Minister would not allow Parliament to conduct such a review on the continuing relevance of the ISA - perverting and corrupting the fundamental principle in a parliamentary democracy that the Prime Minister is answerable to Parliament into Parliament being answerable to the Prime Minister instead!
The terms of reference of the All-Party Parliamentary Review Committee
into the Internal Security Act should be on the two points spelt out by
Justice Hishamudin:
Hishamudin’s judgment has come like a breath of fresh air of liberation
after the oppressive judgment of Justice S Augustine Paul dismissing the
habeas corpus application by Parti Keadilan Nasional Youth chief Mohd Ezam
Mohd Nor, its vice president Tian Chua; former JIM Chairman Saari Sungib,
Free Anwar Campaign director Raja Petra Kamaruddin and social activist
Hishamuddin Rais on April 25, 2001.
In his judgment, Paul claimed that it is for the detainees to show that the ISA powers had been exercised mala fide.
In contrast, Hishamudin proclaims “the cardinal principle …that every detention is prima facie unlawful and the burden of proof is on the detainer to justify it” and that under Article 5(2), the right to apply to the High Court for a write of habeas corpus is not merely a legal right but also a constitutional right available to any person who believes that he has been unlawfully detained.
Hishamudin stressed: “Judges are the protectors of fundamental liberties of the subjects as enshrined in the Constitution. It is a sacred trust that they must vigilantly uphold.”
When Hishamudin said that he was reminded of Lord Atkin’s dissenting judgment in Liversidge v. Anderson [1942] AC 206, 244 about his apprehension of the attitude of judges who “show themselves more executive minded than the executive” when faced with claims involving the liberty of the subject, it is a most appropriate reminder to all judges in the country as well.
Hishamudin granted the habeas corpus applications and ordered the release
of Keadilan leaders N. Gobalakrishnan and Abdul Ghani Haroon from ISA detention
on six grounds, namely:
The Hishamudin judgment is a great judgement in the true tradition
of the judiciary as the protector of fundamental liberties - in contrast
to the Paul Augustine judgment last month which decided that the IGP Tan
Sri Norian Mai owed no duty to make any disclosure of the reasons for the
ISA arrests and even commended the IGP for having made a partial
disclosure of facts in his press statement dated April 11 for the reasons
for their detention - although most Malaysians regard Norian Mai’s
claim of a “militant conspiracy for the violent overthrow of the elected
government” for the past two-and-a-half years as pure “fairy tale”
unsubstantiated by any iota of evidence.
Paul even made adverse comments about the Human Rights Commission of Malaysia (Suhakam) for its statement calling on the authorities to release the ISA detainees immediately and to charge them in open court if they had committed any offence, claiming that it amounted to “an unlawful interference with the lawful exercise of discretion by the detaining authority”.
If Malaysia is to move forward confidently into the future and mature as a democratic and vibrant civil society, then it is the Hishamudin judgement which should prevail over the Paul Augustine judgement on the Internal Security Act, habeas corpus and fundamental liberties of Malaysians.
(31/5/2001)