Judge Syed Ahmad Helmy Syed Ahmad of the Shah Alam High Court joins the ranks of the brave – who unfortunately are not many – in ruling that the detention of Raja Petra Kamarudin under the Internal Security Act was illegal and unconstitutional. His detention was procedurally flawed in that the minister (pic left) had failed to follow “proper procedure under Section 8 of the ISA to issue the detention order against Raja Petra.”
The good judge had stated that “Section 8(b) of the ISA indicated that those issued with the detention order by the minister might not be allowed for judicial review. However, the court could hear such an application if there were instances of possible abuse of powers.” This is a very significant observation. In scrutinising the detention order – without glossing over it as some judges are wont to do – he had found that there was abuse of power by the minister in issuing his detention order. This is a very serious offence.
Datuk Seri Syed Hamid Albar is not a lay person but a lawyer by training. Of all the persons he should be the one well placed to understand the law, its requirement and its implication. Indeed he gave the impression that he understood the ISA better than others when he said, “Please read (the provisions of) the act.” This was his response to criticisms regarding the detention of Suaram secretary Cheng Lee Whee in Johor Bahru on 17 October 2008. The question arises: How could a man so well versed and conversant with the ISA have committed such a terrible sin? Doesn’t he realise that when dealing with the freedom and human rights of human beings he is duty-bound to exercise extreme care to ensure that those rights are not simply trampled upon.
This courageous judge freed Raja Petra because the minister had acted beyond the scope of Section 8 (1) of the ISA. The judge had boldly stated that “the minister cannot simply detain someone. He must be confined to the circumstances stated.”
But the fact is many citizens have been “simply detained” and consequently languish in Kamunting because we have some judges who do not bother to look at the circumstances stated. If a conscientious judge were to take another look at all the detention orders, Aliran is of the view that the facts would reveal that many had been detained illegally and unconstitutionally. Take for example the Hindraf Five. They have been accused of having connections with the Tamil Tigers of Sri Lanka without an iota of evidence being made public to substantiate this grave allegation. This allegation was made simply to portray them as terrorists so that they could be detained under the ISA as posing a security threat to the country. It would be interesting to find out if the minister had “confined to the circumstances stated” in detaining them under the ISA.
We are encouraged by what has taken place yesterday, Friday, 7 October 2008. Two precedent-setting decisions were delivered. One concerned the Kuala Lumpur Sessions Court where judge S M Komathy refused to be brow-beaten into transferring Anwar’s sodomy case to the High Court. That was a great decision. The other concerns Raja Petra’s ISA detention, which the Shah Alam High Court ruled as illegal and unconstitutional. Whether the much talked about reformation takes place or not, as long as we have serving judges of conscience of the calibre of Syed Ahmad and Komathy, there will always be hope . They will put the crooks and those without a conscience in the judiciary to shame.
8 November 2008