Habeas corpus made meaningless!

P Ramakrishnan
22 July 2011

Aliran is deeply disillusioned with the judiciary. Instead of depending on technicalities and loopholes in the law, it should focus on fairness and justice.

It should be prominently and predominantly concerned with freedom and human rights of the citizens. When the freedom of individuals is deprived by dubious means, the judiciary should be uncompromising in defending that freedom.

Dr Jeyakumar and his five companions have been incarcerated since 2 July 2011. Nobody believes the accusations levelled against them. The whole exercise has turned into farcical nonsense.

They were initially accused of “waging war against the King”. But that accusation has been dropped now. What does this suggest with regard to the integrity of the police? It only means that they cooked up an excuse to detain them.

Then they were accused of reviving communism in this country. Images of past communists leaders printed on T-shirts in their possession do not support this theory.

It is now no longer the contentious issue. What does this prove? The police are grasping at straws in desperation to justify their action. But it won’t do them any good.

Then the six were detained under the Emergency (Public Order and Prevention of Crime) Ordinance 1969 under the false pretence that they were a threat to public security.

These six citizens are no goons or gangsters to pose any such threat. Nevertheless, they are accused of being a threat to national security. What does it prove? It only means that any flimsy grounds would suffice to detain any individual under this anti-democratic and draconic law, which blatantly denies a person his natural justice, including the right to defend himself or herself. But it won’t win support for the police.

Ridiculously, the six are now projected as the prime movers of Bersih 2.0, when the entire country is aware that it is the coalition of 62 NGOs headed by Dato’ Dr. Ambiga Sreenevasan that was the sole mover of Bersih 2.0. These six are members of a political party and therefore had no role to play in Bersih 2.0, which excluded political parties from the Steering Committee of Bersih 2.0. What does it prove? It means that there is no respect for truth and the rule of law. But it is not going to help the police to shore up support for the Barisan Nasional.

It is under these circumstances that an application was made for a habeas corpus hearing to question the conduct of the police in detaining these six PSM members. After much haggling, 22 July was fixed for hearing. But now this hearing has been postponed to 5 August.

Any application under habeas corpus should – and must – deserve priority to ensure that it is heard almost immediately. There is an urgency that cannot be ignored. There is the question of justice that has to be addressed at the earliest possible time without any undue delay. This urgency is no longer there.

Whatever the reason for justifying this frustrating postponement, it will not look good for the judiciary. Its battered image – from previous absurd judicial pronouncements that had discredited the judiciary – will suffer a further ignominious blow. It appears that there is no saving grace for the judiciary!

  1. #1 by dcasey on Sunday, 24 July 2011 - 10:46 am

    Malaysia has hopping kangaroo law. Kick the BN out of Putrajaya and you will see all the recalcitrant kangaroos being transformed to wise sang kancils.

  2. #2 by monsterball on Sunday, 24 July 2011 - 10:57 am

    Just read today’s Star…and you can conclude no way will the government under Najib will listen to anyone against his government or leadership.
    He is all truthful and fair to all.
    That’s what he wants Malaysians to understand and trust him.
    Now..lets go to GE election and let Malaysians decide.
    No use to keep on blaring nonsense. It will not work.

  3. #3 by Cinapek on Sunday, 24 July 2011 - 11:16 am

    This EO is just a tactic of intimidation to scare off the average rakyat in case they entertain any thoughts of an “Arab Spring”. THe BN Govt is well aware that they should not go too far to detain the better known leaders as that could a huge outcry and backlash at both local and international level. They hope by detaining these lesser known and average activists will achieve the desired effect of intimidation yet would limit the splash.

    Communism and waging war against the Agong were just some hairbrained charges dreamed up by overly ambitious PDRM officers as excuses to detain them.

  4. #4 by Jeffrey on Sunday, 24 July 2011 - 12:05 pm

    The Judiciary is but only one of the four parts forming a larger Criminal Justice Administration System (“CJAS”). The other parts are: (i) legislations ie ISA & EO (ii) the police investigation apparatus and powers and (iii) the prosecutorial process and exercise of discretion. Each component part is linked to other three parts in a seamless chain. The issue is whether the CJAS Chain network works satisfactorily as a whole for the purpose of delivering the goods (say justice) to rakyat consumers and just serve the interest of factory managers that maintain oil and repair the chain – that’s the Question!

    It is obvious that P Ramakrishnan/Aliran is disillusioned with the entire CJAS. The issue is larger than just Judiciary and a judge’s response to Habeas corpus application by the 6 members of the Socialist Party of Malaysia (PSM) detained.

  5. #5 by Jeffrey on Sunday, 24 July 2011 - 1:11 pm

    The Emergency Ordinance like the ISA is draconian because it allows preventive detention in derogation of a citizen’s civil liberty – right to trial. There is but only one overarching imperative more important than civil liberty of an individual and that is national security. What however is the meaning and cope of an open ended term like national security – and who decides? The problem with our law due to judicial timidity is that it is left to the Executive (Govt) to decide via to security agency of the police. (It is judicial timidity because the courts dare not or professes no expertise to decide – even when such a draconian law is allowed to subsist and stay active in times when emergency (when such a law was first promulgated) has long ceased.

  6. #6 by Jeffrey on Sunday, 24 July 2011 - 1:17 pm

    All the courts dare do, in an application for habeas corpus to procure the release the detainee, is to intervene (by judicial review of executive decision) only when there are manifest procedural defects on police part when invoking such preventive law. On substantive issue -whether national security is really threatened or just a political excuse or paranoia on the part of law enforcers- the courts say it is not up to police to judge, the government knows better and courts go behind to examine the merits of the police discretion. So much the worse for civil liberties where courts do not asset themselves as bulwark between the mighty powers of the state on one hand and the rights of the citizen on the other, even in times of peace where threat to national security is more a figment of imagination than a real threat! This is the crux of our predicament: our civil liberty hinges on an occasional judge who dares skews and interprets something substantive as if it were procedural to procure release of the detainee by habeas corpus– but not otherwise!

  7. #7 by Jeffrey on Sunday, 24 July 2011 - 1:20 pm

    Correction of preceding posting (under moderation) – “….On substantive issue -whether national security is really threatened or just a political excuse or paranoia on the part of law enforcers- the courts say it is up to police (not the courts) to judge, the government knows better and courts cannot go behind to examine the merits of the police discretion…”

  8. #8 by Joshua on Monday, 25 July 2011 - 6:46 am

    we never had any true justice in 53/54 years.

    we are becoming poorer by the day when the illegal socalled leaders abuse all the public funds before all your eyes…

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