What disturbs many thoughtful Malaysians is the manner of exercise of state power in particular reference to police actions. People in power appear to have no notion at all that in a society holding claims (more like pretensions) to Rule of Law and of Justice, the exercise of state power must be perceived restrained, balancing the largest liberty to the individual as commensurate with the public safety; and that all state power vested in political leaders is ultimately derived from the people themselves – and vested for its legitimate exercise for the people’s own protection and not for protection off the vested interests of those in power so vested….

In context of the above three questions, Hamid said, “It doesn’t matter when they moved in as they needed to have him make a statement on the investigations and he has been detained in order to carry out the investigations” – Malaysiakini report Jul 16, 08 7:11pm. With all due respect it does matter when and how they moved in. The how and when state power is exercised is crux of the issue here. This is because it determines whether state power is perceived exercised justly with restraint and reasonable cause – or is exercised for the purpose of deliberately subjecting a fellow citizen (an Opposition leader of widespread popularity), whose liberty is already threatened, to humiliation, abasement, debasement and degradation (before he were even charged much less convicted). It bears directly to the principles earlier delineated on the exercise of state power and whether there has been a legitimate exercise or otherwise. It raises the question whether the exercise, as evinced by when and how it was done, had been for protection of the citizenry from whom such power is vested or for the self aggrandisement of those so vested with such power, guarding the vested interest of those they so eagerly serve.

Back to the issue of exercise of state power and how people view it.

Take for example Raja Petra Kamarudin (“RPK”). He made a statutory declaration (“SD”). In paragraph 3 of the SD, RPK said that the intent of the SD was to “reveal evidence that may help the police in its investigation of the crime” (Altantuya Shaariibuu’s murder).

To laymen and common people, RPK stands in para (same) position as Mohd Saiful Bukhari Azlan (“Saiful”) who lodged the forced sodomy allegations against Anwar.

The difference is only whereas Saiful lodged a police report, RPK made an SD, but esentially both have made reports (whether via a police report or a SD) to asist police investigation of a crime!

Then one’s look at how they are respectively treated by the Criminal Justice System.

Now Saiful’s allegations have been given, with alacrity, the benefit of full investigations to the point that authorities are ready to arrest and charge the person (Anwar) complained against.
He is being given all the police protection and. It is as if he has been whisked off under some witness protection programme that even his family does not know his whereabouts (even before the passing of Witness Protection legislation).

Now in contrast has RPK been accorded the same treatment? Have RPK’s allegations been given the the benefit of full investigations, has he been given police protection and whisked off under some witness protection programme?

No. He is to be given “police protection” of another kind. He is to be charged with criminal defamation tomorrow – he will have to first report to the Kuala Lumpur contingent police headquarters (IPK) at 10am.

To the common man, layman, he will ask – is this justice? Is it just to treat 2 persons in same category of seeking to help the police in investigating a crime be treated differently in that one becomes a protected witness and the other a potential criminal?

To the Constitutional Lawyer, he would ask – is this an infringement of Article 8(1) of our Federal Constitution that provides : all persons are equal before the law and entitled to its equal protection???

What does that exactly mean?? It means that the law must operate alike on all persons under like circumstances, and whether the circumstances are alike or not alike must be evaluated on a rational criteria and not an irrational and irrelevant one.

It does not require a constitutional lawyer to appreciate the following:

1. that RPK and Saiful are in like circumstances in that both were making reports are seeking to help the police in investigating a crime;

2. the fact that RPK’s report implicated people allied to ruling party, Saiful’s report implicated people in Opposition cannot be a rational differentiating criteria;

3. it is not a rational differentiating criteria because whether one is in the ruling party’s camp or opposition’s camp is irrelevant in context of investigating a commission or abetment of a crime because no one (whether belonging to ruling class or opposition) is above the law.

4. there being no rational differentiating factor to distinguish RPK from Saiful, then they being persons in like category of seeking to help the police in investigating a crime should be treated alike by the enforcers and administrators;

5. And if they are not treated alike, then the person treated worse (RPK) arguably has his constitutional right under Article (1) (entitlement to equal protection of law, that includes administration and enforcement of the law) violated.

6. If the criminal justice enforcement were conducted in a way that the principle (of every one is equal before the law, and no one is above or under) is not perceived upheld by laymen or constitutional lawyer alike, then the argument that ours is a society based on the Rule of Law becomes fatuous and unconvincing and such a development is dangerous because more and more people will begin to think of the alternative of justice from the streets.