But even in those dangerous times of September 1941 there was a bold and independent judge, Lord Atkin whose lone dissenting judgement in Liversidge v Anderson has since created history and inspired every law student reading Administrative and Constitutional Law . There are 4 paragraphs of that dissenting judgment, passionately written, that have since then and over time become the benchmark of the importance of independent judges in upholding human rights and liberty….

I quote here in full the words of Lord Atkin:

(Quote)
“I view with apprehension the attitude of judges who, on a mere question of construction, when face to face with claims involving the liberty of the subject, show themselves more executive- minded than the executive,….

In England, amidst country the clash of arms the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which, on recent authority, we are now fighting, that judges are no respecters of persons, and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptability to the court of King’s Bench in the time of Charles I.

I protest, even if I do it alone, against a strained construction put upon words, with the effect of giving an uncontrolled power of imprisonment to the minister. To recapitulate the words have only one meaning. They are used with that meaning in statements of the common law and in statutes. They have never been used in the sense now imputed to them. …

I know of only one authority which might justify the suggested method of construction. ‘When I use a word’ Humpty Dumpty said in rather scornful tone, ‘it means just what I choose it to mean, neither more nor less’. ‘The question is’ said Alice, ‘whether you can make words mean different things’. ‘The question is’, said Humpty Dumpty, ‘which is to be master that’s all”… [the question is whether the words ‘if a man has’ can mean ‘If a man thinks he has’, I am of the opinion that they can not , and the case should be decided accordingly.”

(Unquote)

What for waste time on four MCA Ministers as if they could do anything to help Raja Petra Kamarudin (RPK)? Let’s try to look for something more concrete.

Anwar & his lawyers are back today to argue before Sessions judge SM Komathy Suppiah whether the AG’s application for a transfer of Anwar’s sodomy case from Session Court to High Court should or should not be allowed.

Anwar’s defence team objected to the transfer being signed by attorney-general (AG) Abdul Gani Patail. Their objection was based on the ground that the AG should not have played any role in this case as he was being investigated following a complaint by Anwar that the had tampered with evidence in Anwar’s cases 10 years ago.

The principle here is that when a qausi judicial or administrative decision is made by an officer like the AG, it should not only be actually free from bias but also to be seen as free from a real possibility of bias.

This is fundamental principle to avoid “conflict of interest” in decisions or participation in decisions. For example a director having a personal interest in a contract ought to excuse himself and not participate in board of directors’ deliberation to approve the contract.

The general principle is that if a decision-maker has some interest in the matter being determined then it will fail the test of impartiality – not that actual bias need be proven but the likely possibility of bias is enough to vitiate that decision by the interested party.

It will be interesting to see how Sessions judge SM Komathy Suppiah would decide and whether she would uphold the test of impartiality above stated.

For it will have bearing also on RPK’s ISA case as here it was the Home Minister Dato Seri Syed Hamid who personally signed the ISA detention order under section 8 of the ISA incarcerating RPK for 2 years.

This is what RPK said : “The Monday before my detention, my lawyers sent Syed Hamid Albar a letter of demand, demanding that he apologise for alleging that I insulted Islam. He was given three days to apologise and on Friday, the 12th of September 2008, instead of apologising, they detained me under the ISA” – see link here : http://bloggingr4life.blogspot.com/2008/09/heads-they-win-tails-i-lose.html

On 9th Sept RPK’s solicitors Arbain & Co had sent Hamid a letter of demand, demanding apology and suitable recompense in 3 days or else legal proceedings would be commenced against Hamid for libel.

Hamid therefore has a ‘personal interest’ upon such a letter of demand being given to him. He is not entirely a disinterested party influenced only by what police advised regarding threat to national security.

When he signed the ISA detention order against RPK could be said that – apart from question of actual bias – he could be seen to be absolutely free from real possibility of bias against RPK????

The answer is no. He would fail the test of impartiality.

On this ground alone the ISA detention order signed by him personally cannot be allowed to stand in law as valid exercise of ministerial discretion (passing the impartiality test), and RPK should be freed!

It is as trite as it is commonsensical – and I take it to be self evident truth – that any person, whether AG or a Minister or any decision-making body, that has something personally to gain or lose by the outcome of making that decision should not be allowed to make it, especially when it involves something as fundamental as the freedom and liberty of a Malaysian subject.

And if he has already made that decision or sign that order under conditions that did not satisfy the rudimentary conditions of being free from bias or the likelihood of such bias, then that decision or order signed should be rescinded, struck down or vitiated as failing to comply the fairness or impartiality test.

This kind of notions that decisions should be free from bias or seen free from possibility of bias – and decisions should be free from conflicts of interest – are embedded in our conscious as well as subconcious minds regarding what is fair and just.

Such issues are not the exclusive province of philosophers or great legal jurists and minds.

The common man, average man – even the illiterate man – can grasp the simple truth that a person having a personal interest in a matter cannot make an objective decision on it based on merits of the facts and law.

Having regard to human nature, a person in conflict of interest position should not be allowed to make it.

For to allow him to do so, especially when that decision affects weighty issues affecting another liberty and freedom of another person whom the decsion maker has a beef or grievance against – is manifestly and potentially unfair and unjust to the first mentioned person whose liberty is curtailed.

Unless our law factors the above principle into consideration and upholds it, the law won’t be just and people will not respect the law by reason that it is not just.

Then the people who have administered the law in such an unfair way that make people lose trust and confidence in the administration of the law – they are the ones who have really committed acts of sedition by making people lose trust in the law.