The accused have yet to be prosecuted.

“Habeas corpus applications for four of the five Hindu Rights Action Force (Hindraf) leaders detained under the Internal Security Act are due to be entered tomorrow. They contend that the detention order was issued without the usual procedure of requiring the police to detain a person for 60 days to investigate and make recommendations. “ Bernama

What is there to prevent the police from re-arresting and detaining them the moment they are freed??

“The only way things will change for the better is when BN is denied the 2/3 majority in Parliment.”

Of course,that does not mean that the draconian ISA and other such laws will be repealed. So why are some people talking as if that will stop the abuse of due process?

Karpal has no alternative when dealing with the arrests and detention under the Internal Security Act but to go on procedural flaws. It would appear that short circuiting Sec. 73(?) and going straight to Section 8 opens the way for the present habeas corpus application. But what good will that do if their freedom is short-lived as it is most likely to be. They will be produced in court, freed and then re-arrested!

There used to be judicial review but since then some 20 plus amendments have been made to plug all the loopholes.

(Specially for the attention of limkamput)

“Sure the police can. But I think the point is …” limkamput

The point is when before, the ISA has safeguards like the right to ‘judicial review’, detainees today no longer have that right. Any right to legal recourse has been taken away over the years. No trials and no appeals. Lawyers are reduced to searching for procedural flaws to free those detained which when identified, and in the hands of an experienced attorney, could only provide momentary relief for both detainees and their families simply because procedural flaws could be remedied.

Karpal Singh did the only thing available to him by applying for the writ of habeas corpus on the basis of what appear to be procedural flaws i.e. the government short-circuiting a procedure required under the Act. By short-circuiting the process the government it is claimed trampled on the rights of due process that all detainees are entitled to under Section 73. The Minister apparently signed the detention order without making an investigation. To the lawyers it is about the right of due process. To the detainees it could spell the difference in living conditions locked up in a police lock-up somewhere in some building at Bukit Aman for 60 days or less, and living conditions behind a depressing wall in Kamunting.

Decision to detain someone without charge and without trial is obviously a political decision. But the detention must be in accordance with the law and the applicable law in this case is the dreaded Internal Security Act (ISA) which allows detention without charge or trial and without access to counsel. The ISA was passed by Parliament in the 60s and the decision to pass the bill dealing with the threat to national security is a political one. But once passed it becomes law and what has its beginnings in politics spills over to the courts.

When the HINDRAF 31 were charged with attempted murder most of us knew that the government’s intention was not to try and convict them for the crime of attempted murder but to have bail denied so they could be held in detention using detention to punish them for their role in the illegal assembly. When the AG dropped the charges no one among members of the legal fraternity were surprised because they understood the role politics played in our courts.

Popular opinion, however, is different. The lawyers looked like they didn’t know what they were doing, the judge clearly biased and was acting under the instruction of his or her political masters; and the Prosecutor just plain stupid!

The decision to prosecute Anwar for corruption and sodomy is a political decision. Few doubted that the trial was a political trial but rules of criminal procedure and law of evidence were applied and Anwar was found guilty as charged.

Can you draw the line and say this is where the struggle which is political ends, and law begins?

What is politics if it is not about conflict management? What is law if it does not provide rules for conflict resolution? Of course, in the final analysis there could be only a political solution to a political problem.

It is not like we do not know that and we need reminding! We do.

Is it a mere coincidence that many politicians are also lawyers?

“It is not the legal process, it is political manoeuvring.” limkamput

It is both.

Limkamput, I think the best way forward is for me to answer you point by point.

1. “If we have good criminal procedures, how can we have “political decision” to prosecute? ”

How do I answer a question that is loaded with so many issues which should not be allowed to merge into one confused whole?

When reference is made to criminal procedure(s) in the context of a trial it is always in reference to the CPC or Criminal Procedure Code. A crime is not a crime unless the Penal Code makes it so. Telling lies, for example, is not a crime. Telling lies under oath is. If you’re charged with a crime, criminal procedure requires that you be formally charged – and bail offered if it is a bailable offense. The accused then goes through various stages before the trial proper e.g. the process of discovery, the taking of depositions etc. These are not to be taken lightly because it involves constitutional issues ( and, therefore, political) and in particular your right of due process. Your contention has always been that we should not be interested in the “legal process” – wrong! Because this is both political and legal. Furthermore, why shouldn’t we be interested in the “legal process” if it ignores our rights of due process – of our constitutional rights, of which equal protection of the law is but one.

You asked (and if I may rephrase) “How could politics have a role in the prosecution of someone accused of a crime if the criminal procedure does not allow for it?” It could – and that is how it could. It could interfere with the process. Could the HINDRAF 31 be charged with the offence of participating in an illegal assembly? Yes – because no police permit was issued. Could they be prosecuted with the crime of murder” No – because nobody died. Could they then be prosecuted with the crime of attempted murder. Yes – because somebody was injured (whether that injury is serious enough to constitute grievous bodily harm is a question of evidence which would have to be addressed during the trial proper). The AG would like us to believe that he thought so. But then had the prosecution gone ahead, nobody (including the AG) should expect it to survive the preliminary hearing. But like you say that is not the intention. The intention is to hold them without bail. You’re right. But as you can see, it is again both legal and political. The AG has allowed politics to interfere with the legal process. The decision to hold them without bail is politically motivated. The law does not justify holding them without bail. Shouldn’t we be concerned with the “legal process” then?

2. “Didn’t decision to prosecute and applicable charge part of criminal procedure and law of evidence? In other words, which is of higher order, the political decision to prosecute or the application of criminal procedure?

It is not a question of “higher order”.

It is a question of you committing a crime and you not committing a crime. It is question of whether you’ve been properly charged and not being properly charged with the crime you are alleged to have committed – if your constitutional rights have not been trampled with, whether you have been given equal protection of the law. It is about you being guilty only as far as the evidence shows.

The HIDRAF31 appear to have been properly charged though for the dubious crime of attempted murder. They were involved in an illegal assembly in contravention of Section 27 of the Police Act 1967 which requires a police permit (not a moral issue but a legal one). The assembly was to protest against the government for ignoring their problems. It was political in nature though the demonstrators were not members of any political party or organization affiliated to a political party.

Here is where politics is allowed to interfere with the legal process. The accused were charged with the dubious crime of attempted murder when clearly there was no evidence that they were part of an unruly mob who set upon a police officer with the intent to cause grievous bodily harm. The AG knew that and we knew the AG knew that. His political master had apparently instructed him to do so – so that bail could be denied.

So what was politics and political in nature spilled over to the courts. HINDRAF voiced their opposition to the government which is political in nature, and the government used law (the CPC, Penal Code and the ISA) to stifle their opposition. They couldn’t charge the HINDRAF 5 because there was no evidence that they were present. They tried charging them with sedition earlier. They used the ISA to finally detain them because they decided that would be easier. What could be easier then to detain somebody for some crime they were alleged to have committed but not identifying what those crimes are, nor revealing the initial evidence – basically denying them due process.

Using the ISA against leaders of demonstrators who were merely voicing their opposition to the government is a political decision.

3. “there are selective prosecution and selective charges (same offence charged with different legislation)…”

The HIDRAF 31 is not about selective prosecution per se. But earlier decision not to prosecute BERSIH demonstrators for having ignored police warnings makes it appear to be so.

I’m not sure what you mean by “selective charges”. It is left to the prosecutor to frame the charges and the charges could be in the alternative – or whether to charge at all. As to whether the full weight of the ISA should be brought to bear on the accused is a political decision because the intention here clearly is to stifle all opposition to government policies under the guise of it being a “threat to national security”.

4. “what good is to ascertain whether criminal procedure and processes are followed. It is fait accompli, don’t you think so.”

What good?? Are you suggesting that politics or the political affiliations and prejudices of the judge, for example, could change the rules of evidence and criminal procedures as embodied in the Evidence Act and the Criminal Procedure Code? Admittedly, the decision affecting some of the legal issues could be tainted by the personal prejudices of the trial judge – yes. But it is not all that easy as some make it out to be. Because the judge has to support his decision based on the law and not on the law as he sees it. Which is why we have appeals.

I hope you are not suggesting that if the DAP/PKR were to run the government that they should set about changing the definition of the crime of murder and attempted murder etc? There is no need because in the case of the HINDRAF 31 the AG is apparently guilty of prosecutorial misconduct.

5. “don’t know whether this will help. We can all do right things the right way. We can also do wrong things in the right way.”

Laifoong would say “Duhhh..!” and that you’re having an argument with yourself here.

6. “Prosecuting and convicting people with political/evil motives is doing wrong things in the right way – legitimising a wrong or evil act.”

Allowing political motives to taint the legal process is a corruption of the legal process itself and an abuse of political power.

It is not a case of legitimizing a wrong. It is wrong.

A piece of advice to you, limkamput – if I may. You need to have some humor, and accept the rough together with the smooth. Do not feel like everybody is after your blood i.e. out to prove you’re wrong and they are right. It may appear that way but it is not.

Like I said some time earlier. You sound like my wife! She thinks every time I give an opinion she has to change hers!

Limkamput, you don’t really read what I wrote. So I think, with all due respect, I should stop discussing the same matter over and over again!

“I disagree with your last sentence. Bias or corrupted judge can if they want to. For example the recent decision of land transfers. Land title obtained fraudulently can be sold and the transaction is considered good so long as buyer is bona file. What kind of decision is that?” limkamput

Biased and corrupted judges cannot even if they want to.

“For example the recent decision of land transfers. Land title obtained fraudulently can be sold and the transaction is considered good so long as buyer is bona file” limkamput

You need to understand a little bit of law here.

If you buy a car and then sells it on, the buyer of your car gets what is referred to as a good title provided you bought yours in good faith, for value and without notice. But if you had earlier bought your car thinking that it could be stolen (because of the unusually low price offered to you), though you had no way to confirm it and had no actual knowledge if it had in fact been stolen, then you bought your car in bad faith and the title you get in return for the money you paid is a defective title.. The title you get is only good against the ‘rogue’ seller.

Now here comes the problem. The buyer of your car who has no knowledge of what had transpired in turn sells the car for value, in good faith and without notice to another buyer – that buyer gets a good title. His title is good as against the whole world. Then the original and real owner of the car whose car was earlier stolen turns up to claim the car.

Could he do so ? Yes and No. He could get back his car from you but since you no longer had possession, he has no legal recourse and no legal remedy. And this is why. The present owner has a good title because he bought the car for value, in good faith and without notice. Unfair that he could not get back his car? Looked solely from his perspective there can be only one answer – yes.

The harshness of the common law position is here modified by the law of equity to place a good title in the hands of the buyer who meets the definition of ‘the buyer in good faith, for value and without notice”. If you understand that then you have mastered contract law and the law of trust and equity, law of real property etc.

It seems grossly unfair that the court would leave the real owner of the car without a legal remedy, that the only recourse the real owner has is against the rogue who stole his car – who is, of course, nowhere to be seen. Here comes the pain. The law has no choice but to allocate blame, and as it is in the public interest to provide security and stability to commercial transactions, it comes down on the side of the last buyer in good faith, without notice and for value.

The same principles are applied in real property.

In Malaysia, land law is codified. The NLC or National Land Code works to provide stability in land transactions. Real property is too complex to be left to common law to provide the solutions fair and just to all parties. Students of the NLC would agree with me that the notice requirements are especially stringent. It would be in the interest of the buyer to comply with all the conditions under the Code.

To return to your statement i.e. “land title obtained fraudulently can be sold and the transaction is considered good so long as buyer is bona fide”.

That is not true.

What is true is if you buy your land from a owner (who has to be a registered owner to have title) complying with all the requirements of the National Land Code, you then obtain a good title and once registered in compliance with the NLC is good notice to the world.

Students studying the NLC speaks of lacuna in the law and the complexities of the concept of indefeasibility of title etc. The strict application of the National Land Code without reference to the real intent of Parliament has led to criticism but the truth is until the offending provision in the Code is amended the law remains.

I think that’s what you’d like me to say or even believe – but NO.

“My contention is if the state is capable enough to bring a “bad” case to court, the administration of justice, including procedural and substantive laws could also be subverted. I hope I have done justice to the debate.”

I think your desire to ‘debate on the issues’ is actually your mostly uncontrollable desire to project your views on to others at any cost, perhaps to show how clever you are, right or wrong and in the process you fail to understand what is being said in response to your questions. Either you have not read what is written on the issues, glossed over them or failed to understand them. I think it is a combination of all three.