Urgent motion in Parliament – no to Hamid’s appeal to court to re-arrest RPK

I have given notice to the Speaker, Tan Sri Pandikar Amin Mulia to move an urgent motion of definite public importance in Parliament tomorrow urging the Cabinet to overrule Home Minister, Datuk Seri Syed Hamid Albar’s decision to appeal against the Shah Alam High Court decision to free Malaysia Today website editor Raja Petra Kamaruddin from Internal Security Act (ISA) detention.

My motion, under Standing Order 18, deplores Hamid’s decision to appeal as “utter contempt for the fundamental concept of the rule of law and the most rudimentary commitment to human rights in the country”.

The motion said:

“In ordering Raja Petra’s release after a 56-day ISA detention, Shah Alam High Court judge Justice Syed Ahmad Helmy Syed Ahmad ruled in the blogger’s habeas corpus application that the Home Minister acted outside his powers in detaining Raja Petra under the ISA, as the grounds given for Raja Petra’s detention were insufficient rendering the ISA detention unlawful.

“Furthermore, Hamid acted mala fide in a very substantive manner in issuing a detention order under Section 8 of the ISA not because Raja Petra constituted a threat to national security but to frustrate the administration of justice and the rule of law by “killing off” Raja Petra’s earlier habeas corpus application slated for hearing at the Kuala Lumpur High Court on Sept. 23 to challenge the legality of his initial ISA detention on Sept. 12 under Section 73.

“The Shah Alam High Court decision to free Raja Petra is in fact a positive reflection in the last five months of the Abdullah premiership and should be the occasion for the Cabinet to undertake a full review of the draconian laws in the country as well as to uphold the doctrine of the separation of powers by repealing all legislation which institutionalizes the executive usurpation of judicial powers and independence by excluding judicial review of abuses of executive power, like Section 8 of the ISA.

“Hamid’s decision to appeal against the High Court decision is proof that the Minister, though a lawyer, is unrepentant in refusing to understand the changes demanded by Malaysians after the March 8 “political tsunami” for a full restoration of the just rule of law, a truly independent judiciary and a total end to all forms of abuses of executive power.

“The Cabinet should overrule Hamid’s decision to re-arrest Raja Petra and send him back to Kamunting Detention Centre.”

This is time for MCA, Gerakan and all Barisan Nasional (BN) leaders to walk the talk as MCA/Gerakan Ministers and leaders have been staging a “song and dance” in the country about their new-found opposition to and criticism of the ISA, demanding a review if not repeal of the draconian detention-without-trial law.

The MCA and Gerakan have in their recent national delegates conferences passed resolutions demanding review if not repeal of the ISA.

Last week, another BN component party, The Liberal Democratic Party (LDP) from Sabah also passed a resolution calling for review of the ISA at its national congress, questioning whether the ISA was still relevant and whether there was a need for the scope of the Act to be clearly defined if it was still needed.

Yesterday, the Deputy Home Minister, Datuk Chor Chee Heong said in Alor Star that he is opposed to the ISA arrest of the Sin Chew senior report, Tan Hoon Cheng, DAP MP for Seputeh Teresa Kok and blogger Raja Petra Kamaruddin.

Did he make his opposition to the ISA arrests of the trio loud and clear to the Home Minister? Have the four MCA Ministers taken a common and collective stand in Cabinet to oppose the ISA detention of the trio, including Raja Petra?

Are Chor and the MCA, Gerakan, LDP and other BN leaders now prepared to oppose Hamid’s appeal against the Shah Alam High Court decision on Raja Petra’s habeas corpus application – implying the re-arrest of Raja Petra and his being sent back to Kamunting Detention Centre?

The statement by the Prime Minister, Datuk Seri Abdullah Ahmad Badawi in Kepala Batas on the ISA detention of Raja Petra is most unfortunate and shocking.

Abdullah claimed that the Government had always been careful when enforcing the ISA , stating: “The ISA is not a tool to be used at our whim and fancy. There must be reasons to warrant any arrest and it must be used with caution.”

When Abdullah cannot convince the Deputy Home Minister that the ISA had not been used arbitrarily at Hamid’s “whim and fancy”, how can the Prime Minister expect to convince Malaysians at large and the world outside that there had been no gross abuse of power of the ISA?

The Shah Alam High Court has found gross abuse of ISA power in Raja Petra’s detention. The court of national and international opinion are united in consensus that the ISA detention of Tan Hoon Cheng, Teresa Kok and Raja Petra are gross abuses of power – how else explain the relase of the Sin Chew report after eight hours and Teresa after seven days?

This is why there should be a special debate on the ISA in Parliament, including whether Hamid shoulod proceed with his decision to appeal against the Shah Alam High Court decision to free Raja Petra from ISA detention .

With the latest developments, I call on Barisan Nasional MPs including Ministers and Deputy Ministers like Chor to endorse the collective requisition by 85 MPs for a full debate on the ISA.

The Parliamentary Caucus on Repeal of ISA and release of all ISA detainees will hold an emergency meeting today to discuss the issue.

  1. #1 by Godfather on Monday, 10 November 2008 - 10:02 am

    What are the bookies offering in terms of odds for the Speaker to agree that this motion is urgent and of public importance ?

  2. #2 by Godfather on Monday, 10 November 2008 - 10:04 am

    I’d like to put a few ringgit on the possibility of this dishonest Speaker doing “an exceptionally honest act”. Call it a waste of money if you like, but then hope springs eternal in all of us.

  3. #3 by All For The Road on Monday, 10 November 2008 - 11:09 am

    Home Minister SHA cannot be two-faced, says one thing one moment and another the next over RPK’s release from ISA detention. Why the appeal over his release ordered by the Shah Alam High Court as his detention was unlawful? Editor and Blogger RPK writes of what he feels are happening in the country as a true-blooded and concerned Malaysian. He is no terrorist and does not pose any threat whatsoever to the security of the nation.

    It’s high time BN MPs especially from MCA, Gerakan and MIC to show their stand on the ISA issue and walk the talk and support the urgent motion in Parliament to be tabled by YB LKS. The rakyat will judge them for whatever they do and do not do! It is a timely wake-up call for them to show to their constituents.

  4. #4 by Jeffrey on Monday, 10 November 2008 - 11:17 am

    In public eyes, the appeal smacks of victimisation.

    There was a habeas corpus application in respect of the earlier remand by police under Section 73 of ISA.

    Instead of allowing the law to take its course a ministerial order was signed with undue haste to change the status of the limited detention under section 73 (which permits judicial review on both procedural and substantive issues) to bring the case to a thereotically infinite detention under section 8 of ISA at Minister’s discretion (which is not reviewable unless procedurally wrong).

    Then even without addressing the specific point whether it was fair/lawful for the Minister to make transition from detention under section 73 to section 8 when Habeas Corpus hearing was afoot, Shah Alam Court had already declared the detention under section 8 as procedurally wrong being tainted by mala fide.

    It is agreed that in law and theory, the State/Attorney general has every right to appeal against Shah Alam Court decision acquitting Raja Petra.

    However this smacks of the state going “all out” to take a second bite of the cherry to ensure that RPK is secured behind Kamunting walls.

    It is “all out” because there is no consensus at all within community that RPK is a common criminal whose being let loose is a threat to society (aside perthaps certain quarters in high places whom he takes cudgel with). That does not make him a threat t o national security. That there is no consensus is further proven not just by Opposition and Civil Society’s voices but voices within BN ranks as the case of MCA/Gerakan and their ministers….

    Law is not applied a vacuum unaffected by the community’s sentiments and mores, something the Attorney General in the execise of his power to institute, conduct or discontinue any proceedings for any offence under Article 145(3) of the Constitution, should take cognicance of.

    It violates our notions of justice that if the law allows a person to be free because of mala fide of his first detention, attempt is again and again repeated by the detaining authorities to appeal and hound that person until he is finally secured.

    Why should authorities be given second bite of cherry to secure the curtailment of his civil liberty when he is not an ordinary criminal out to deprive the freedom of society but to champion it instead?

    The idea that we should not give prosecution twice bite of the cherry may traced through the mists of time.

    There is an Old Testament passage which promises that: ‘affliction shall not rise up the second time’.

    This text has even been interpreted by some scholars as support for the canonical maxim: ‘not even God judges twice for the same act’.

    Much less ought the authorities/people in power be accorded twice the opportunity to commit mala fide where the first attempt has been thwarted!

  5. #5 by Damocles on Monday, 10 November 2008 - 11:26 am

    Say all you want.
    In the final analysis, UMNO/BN can do whatever they want.
    What can anyone do about it?

  6. #6 by frankyapp on Monday, 10 November 2008 - 11:30 am

    What do you expect from all these YESMAN YBs including the speaker from Sabah ? They are not going to support you LKS .We wondered why we elected these YBs in the first place.They all have one common interest.It’s to protect all their self-interest. Nothing more and nothing less.

  7. #7 by yhsiew on Monday, 10 November 2008 - 11:38 am

    Having performed badly in maintaining peace and order in the country, Syed Hamid should devote more time to seek a solution to the ever increasing incidents of robberies, murders, extortions and illegal migrants in the country instead of wasting his time dabbling in politics. Foreign investors are scared to come to Malaysia and ordinary Malaysians are afraid of going out at night. Syed Hamid must get his priority right before the situation deteriorates.

  8. #8 by kftang on Monday, 10 November 2008 - 11:40 am

    We have seen time and again that whatever motions the Opposition wants to table in Parliament, rightly or wrongly, will in one instance be shot down by the so-called Speaker. That is a foregone conclusion to the dismay of many right-thinking and sympathetic Malaysians!

    Hopefully this time around, the urgent motion in Parliament by Senior Parliamentarian YB LKS will see the light of day and reasoning. One can only hope against hope so to speak.

    Malaysia Today editor has said he is not a terrorist and doesn’t pose any security threat to the nation. A vast majority of Malaysians believe him but alas, the powers-that-be don’t!

  9. #9 by undergrad2 on Monday, 10 November 2008 - 12:13 pm

    While it is unconstitutional to have an accused live his life under the dark cloud of prosecution (which is one reason why we have statutes of limitation) it is not tantamount to having a second bite at the cherry to have a person re-arrested when new and fresh evidence surfaces previously unavailable or when he is freed on technicalities due to procedures which could be remedied. No first bite and therefore no second bite.

    This is one such case. RPK was arrested but was not tried. He could therefore be re-arrested and made to face trial. I thought defense counsel did try to make the judge consider the grounds for his client’s arrest under Sec 8(1) ISA. The judge chose to free RPK on what appears to be procedural technicalities i.e. an affidavit which failed to show reasonable grounds for his detention. Had RPK been tried and found not guilty then the legal doctrine of res judicata would apply to prevent his re-arrest. The only way then would be the appeal process. An appeal would be limited to the issues raised during trial whereas his re-arrest and charge would begin the process all over again.

    Any legal eagles in the room??

  10. #10 by OrangRojak on Monday, 10 November 2008 - 12:33 pm

    It doesn’t matter what a great number of Malaysians believe. The state believes RPK’s a threat to them, and if he’s a threat to them and they’re charged with your safety, then they’re acting on your behalf when they detain him. After all, who will protect you if the state is harmed by RPK?

    I’m not intending to throw the cat among the RPK-loving pigeons, only to say this: Once there are laws permitting politicians to bypass the legal process, it’s inevitable that people will be detained for no greater crime than disagreeing with the government. Malaysia is not alone (as your politicians are quick to point out) in behaving this way.

    Almost every state that commenters on this blog look to for inspiration has been doing exactly the same thing in the last few years. We all want to stand up and protest “Referee!”, but who is the shining example / overarching body to protest to? When you’re detained without trial in the UK, you can make an appeal to the European courts. You can appeal to International organisations for help too, which can be productive in an environment of largely unencumbered media. Public opinion carries a lot of weight, and is informed by more than one source in some countries. Where the sources are varied, public opinion can be a catalyst for change. Where there is no source but the official one, public opinion can be an obstacle for change to overcome.

    Is Pakatan Rakyat offering to open up the Malaysian legal process to supranational authority – or at least criticism? Is Pakatan Rakyat offering to unleash critical journalism? If the answer to these questions is ‘no’, then what hope is there? A change of government would be same frying pan, same fire, different cooks. PR’s heroes would be lauded, your opponents’ heroes would be in Kamunting – but the nation will have made no progress.

  11. #11 by Jeffrey on Monday, 10 November 2008 - 12:57 pm

    I agree that there is definitely no “ two bites of same cherry” in an appeal against Shah Alam Court’s decision in the strict legal sense of that expression as applied to the principle that a man cannot be tried twice for the same offence based on the what is commonly known as rule against “double jeopardy” or what Undergrad2 referred to as the legal doctrine of ‘res judicata’.

    My use of the expression has been in the loose layman sense – I assume most of us are not lawyers – that authorities should not be given twice opportunity to persevere the hounding and incarceration of that man.

    For to do so would further reinforce public suspicions of mala fide under a combination of disquieting circumstances set out in my earlier posting at 11: 17.28 (1 hour ago) and alluded to by Justice Syed Ahmad Helmy Syed Ahmad’s ruling.

    Where by community’s standards, RPK is obviously not a common criminal out to threaten or deprive the freedom of society but to champion it (civil liberties and truth) instead – whether or not one agrees with the propriety of his approach or method or not – I would argue that the finality of prosecution should be left where it last fell (in the Shah Alam’s decision) and ought not, at least in a soceity having democratic pretensions, to be reactivated as if in search for the proverbial pound of flesh by Shylock in Shakespeare’s Merchant of Venice. It is otherwise if it were a totalitarian inclined state. If so, why go through motion of due process, just lock him up!

    When I said “No to two bites of the cherry”, I meant in the loose general layman sense that authorities/people in power should not be accorded the second bite via appeal to lock him up where the first attempt to do has been thwarted by Shah Alam Court on procedural grounds!

    In that sense/context and common fairness I raised the old biblical injunction that ‘affliction shall not rise up the second time’….

  12. #12 by Jeffrey on Monday, 10 November 2008 - 1:08 pm

    There is no check and balance in the entire prosecutorial/judicial process against mala fide abuse. Appeal to Higher Courts? That depends on professional neutrality of the courts the public perception of which is negative since events of 1988 and recent Ling Tape Video Clip.

    The two main bastions of safeguard are (1) trial by jury drawn from peers/common man from the community and (2) Appeal beyond national borders (as what OrangRojak said) which we once had – to the Privy Council.

    It is a good point what is Pakatan Rakyat’s position on these two issues of reinstating Jury system and Privy Council appeal????

  13. #13 by Godfather on Monday, 10 November 2008 - 1:42 pm

    UMNO’s definitions as per its internal dictionary:

    Urgent Motion – the sudden need to find an operable toilet in Bolehland.

    Double Jeopardy – the board game of Jeopardy played at a snail’s pace at Parliament corridors.

    Check N Balance – the 24 hour banking service offered to UMNOputras who open accounts in Singapore, London, Perth and Sydney.

  14. #14 by Godfather on Monday, 10 November 2008 - 1:44 pm

    “….what is Pakatan Rakyat’s position on these two issues of reinstating Jury system and Privy Council appeal????”

    Hold your horses, Jeffrey. Some “exceptionally honest act” may come from the Chief Justice, so let’s sit back and wait and see.

  15. #15 by sikui on Monday, 10 November 2008 - 2:57 pm

    {Some “exceptionally honest act” may come from the Chief Justice} !!??
    High hope from this guy; he even had to bribe his way around the court jesters and knowing 2 corrupted judges without reporting to ACA. Can you depend on him?

  16. #16 by m.hwang on Monday, 10 November 2008 - 3:02 pm

    “Godfather Says:

    Today at 13: 42.46 Check N Balance – the 24 hour banking service offered to UMNOputras who open accounts in Singapore, London, Perth and Sydney.”

    Wickedly hillarious

  17. #17 by Yee Siew Wah on Monday, 10 November 2008 - 3:24 pm

    Uncle Lim, please whack some sense into this pea brain, arrogant baldie fat toad in Parliament. He has lost all directions as a HM (Hantu Ministry). He is now running around like a headless chicken.

  18. #18 by shortie kiasu on Monday, 10 November 2008 - 4:18 pm

    We would think that any courts’ decisions can be appealed against by the aggrieved party to a higher court, up to the highest court of the land, the federal court?

    So, we presume the home minister is just doing that now? Would the said motion in Parliament ulta vires the rule of laws and set a bad precedent for others to attack in future?

  19. #19 by baoqingtian on Monday, 10 November 2008 - 4:49 pm

    Don’t count on MCA, MIC, Gerakan and others to support you, Mr Lim. They won’t lend a helping hand. Wee Ka Siong said before MCA would like to solve this problem behind closed doors but whether they would really do it or not, god knows. But looking at how things have evolved, I don’t think any of the BN component parties have spoken about it behind closed doors.

    Appeal against the Shah Alam High Court decision is the only way to go to avoid being ridiculed. No matter how unlawful the detention was, finding ways to make it lawful is just a matter of time with the corrupt judges around.

  20. #20 by undergrad2 on Monday, 10 November 2008 - 10:29 pm

    “….on the what is commonly known as rule against “double jeopardy” or what Undergrad2 referred to as the legal doctrine of ‘res judicata’.” Jeffrey

    Not quite the same!

    No one should be put at risk (jeopardy) more than once for the same crime (double jeopardy). The doctrine of res judicata is wider in scope. You cannot have a case going on and on. There has to be finality.

  21. #21 by undergrad2 on Monday, 10 November 2008 - 10:39 pm

    It appears that the judge going through the Minister’s affidavit, examining the grounds he stated in his affidavit, finds that he has acted mala fide (in bad faith). If it is a matter of wording then it would be easier for the prosecution to have those remedied. It is harder to find and prove abuse of the judge’s discretion.

    The judge has yet to deliver his written judgment. We would have to wait.

  22. #22 by HB Lim on Tuesday, 11 November 2008 - 12:11 am

    Hamid said the government would appeal. That is their legal or procedural rights and why are we making so much noise when they are only exercising their legal rights? The appeal will provide another opportunity for us to see if Zaki’s appointment has made any difference to the judiciary in Malaysia.

    Did Hamid say he will re-arrest RPK before or pending the appeal? I cannot remember reading anywhere that he has said so. If he has not said so, I think the motion as worded (“The Cabinet should overrule Hamid’s decision to re-arrest Raja Petra and send him back to Kamunting Detention Centre”) would be rejected outright as being hypothetical at best.

    I am not at all supporting Hamid or the government in the arrest and detention of RPK. He should not have been arrested and detained under the ISA in the first place. I am just trying to see the whole thing in a detached and objective manner.

  23. #23 by Jeffrey on Tuesday, 11 November 2008 - 6:25 am

    Responding to HB Lim’s comments, what is in question, is the spirit behind the authorities’ pursuing such an appeal, whether it is right or not so.

    After all, the right of Prosecution to appeal is a right exercisable on behalf of the community in respect of an offence committed or, in the ISA case, likely to be committed by an offender within the community that justifies punishment and in incarceration for protection of the community.

    As members of the community we too have a right to adjudge.

    We have to ask ourself if RPK is really an offender/criminal and that the Shah Alam Court decision erred in law or was otherwise delivered with consequences detrimental to society.

    Unless the answer to that question is otherwise in the affirmative, we should address t he question whether the State’s prosecutorial discretion exercised in favour of an appeal is proper or likely mala fide fashion.

    This is not a normal run of the mill criminal case where the community have no misgivings and reservations about the first act of detaining RPK for reasons ostensibly given (ie Insulting Islam).

    The exercise of Prosecutorial discretion in an appeal is a thing apart from and a separate issue from the exercise of judicial function at appellate level expected to be free from executive interference.

    It would not be to our interest in principle to acquiesce with an abuse of the prosecutorial discretion just so to test whether Zaki’s appointment has made any difference to the independence of the judiciary in Malaysia. Rakyat would expect both prosecutoral and judicial functions to be properly exercised at the same time.

    Overall, the noise made in respect to govt’s intent to appeal against Shah Alam’s decision is justifiable only if one perceives that there was mala fide implicated on the part of the authorities in the first instance of detaining RPK based on the concerns and anomalies raised in this thread .

    Which of course gives the ulterior motive/impetus in pursuing an appeal against Shahh Alam Court’s decision quashing that first detention order.

  24. #24 by undergrad2 on Tuesday, 11 November 2008 - 6:46 am

    HB Lim Says:

    Today at 00: 11.49 (6 hours ago)
    Hamid said the government would appeal. That is their legal or procedural rights and why are we making so much noise when they are only exercising their legal rights?”

    Because there is a real risk of RPK spending more months awaiting trial.

  25. #25 by taiking on Tuesday, 11 November 2008 - 8:40 am

    Let them appeal – preferably all the way to the FC. That way we can check zaki out. If he is true to his words, and when the CA and FC unhold the HCt decision we would have a legal pronouncement by the apex court of the country on the matter which the high court judge refered to (as reported in papers).

    Jeffrey’s suggestion of reinstating appeal to the judicial committee of the Privy Council is not such a bad idea. For sure the ills of the entire judiciary would be corrected within a short time.

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