Life: The Journey Continues…

A candle for RPK and all the other ISA detainees

In my last post, I mentioned that RPK’s habeas corpus petition was scheduled to be heard on Friday, the 26th of Sept, 2008. In fact, the hearing was brought forward to Tuesday, the 23rd. However, just before the hearing, RPK was charged under Section 8 of the ISA and transferred to Kamunting Detention Centre (he was previously charged under Section 73, which was why he was arrested in the first place, and (I think) detained in Bukit Aman). You can read on to see why this made any difference and how it affected the habeas petition.

Anyway, I reproduce (in full) below an article written on the 25th of Sept, by Malik Imtiaz Sarwar, RPK’s lead counsel. I found the idealism and optimism expressed therein to be truly heartening, and thus all the more necessary in these depressing times. Points of emphasis in the article are my own.

Free RPK: It’s Not Over

Let me first apologise to you for not having given you an update yesterday. It was a trying day, the culmination of a period of work and stress that began the day RPK was detained. Not just for me but for the other members of the team, in particular Ashok Kandiah and Neoh Hor Kee.

You would have read of how the application was originally fixed for the 26th of September. It was through the enormous efforts of both these lawyers that the hearing was brought forward as it was. It was also through their efforts that the necessary court papers and affidavits (statements on oath) by RPK were obtained as quickly as they were. It was primarily due to their efforts that when, as lawyers say, I got up on my hind-feet in court yesterday, we were ready to give it the best shot we could. I believe that the case we would have mounted for RPK would have been virtually unassailable.

But our attempts were impeded.

I say impeded because at this juncture we do not know whether the High Court is going to hear the original section 73 application now that the Minister has issued a detention order. A fresh application can also, and will be, filed to challenge that order. To be fair to the judge concerned, Suraya Othman J, she considered herself bound by precedent that she thought tied her hands. She acted fairly, albeit conservatively.

As much as some of us may think otherwise, RPK’s case is one of many that the judge has to deal with. We must also keep in mind that the judge has not dismissed or struck out RPK’s application even though this was what Federal Counsel sought. It is now for us to attempt to convince the judge that there is merit in proceeding with this application even though she will not be able to order the release of RPK based on this application alone. I would like to think that we still have a chance.

A second habeas corpus application will also be filed to challenge the Minister’s order. We started working on it yesterday. In truth, we are handicapped; the ISA precludes comprehensive review of such an order. Added to this is the legal position that such an order is issued by the Minister at his subjective discretion. The courts have been reluctant to interfere with the Minister’s discretion, save on procedural grounds, on the basis that, firstly, the law does not permit otherwise and secondly, the Minister knows best about national security.

This is the massive obstacle we are faced with.

This is one of the reasons why a section 73 detention is converted to a section 8 detention when the IGP is confronted with a habeas corpus application; the issuance of the Minister’s order narrows the scope of review and permits the Minister to shield himself behind a veil of national security. RPK is not the first victim of such a strategy. We experienced the same difficulty during the so-called JI detentions in late 2002.

There are however peculiarities about RPK’s detention that may give us footholds to ease our ascent. The media has reported that the Minister issued the detention order on the recommendations of the police. These pertained to the so-called anti-Islamic articles that RPK is supposed to have written. We at least know the basis of the detention and are able to bring it into focus when we get to court.

There are also no other legal tricks that can be pulled by the Ministry. The issuance of the detention order is as problematic for RPK as it can get. Some have said that this makes the detention virtually immune from challenge. I would like to think that the interests of justice can always be served if we remain hopeful of finding the path to it.

Every case in court brings us into uncharted territory and with it surprises. I have had my share. In 2001, Justice Hishamuddin ordered the release of Abdul Ghani Haroon and N Gobalakrishnan. He also prevented the police from re-arresting the two. I was in court the day he pronounced the orders and the sheer exultation I felt as he did remains with me to this day as has the awareness that there are those who will do the right thing when times seem darkest.

RPK and the other civil society leaders who have shown us the way started a process to transform this country. This legal campaign is a part of it as is the mounting civil society pressure against the ISA that have spring-boarded off his detention and that of Theresa Kok, Tan Hoong Cheng and the HINDRAF 5. RPK knew what would happen and lent himself to the process. For that reason above all, he is firmly ensconced in my mind as a patriot.

We must not lose faith. The fight has not ended, it has just begun.

MIS

Hi all.If you wish to read THE PETITION and sign it straight away, go right ahead. And please spread the word once you’re done. If you need some convincing first, then please read on.

We all know about the VK Lingam judicial scandal. We know that a Royal Commission of Inquiry was set up to investigate this scandal. And we know that the Commission verified that our judiciary lacks proper independence. Worst of all, despite promises by the Prime Minister to reform the judiciary, and in particular, to set up a Judicial Appointments Commission, we all know nothing’s being done about it.

After the retirement of Tun Ahmad Fairuz, the former Chief Justice of Malaysia implicated in the VK Lingam scandal, Abdul Hamid Mohamad was appointed Chief Justice. He’s due to retire this October, and the word on the street is that Tan Sri Dato’ Zaki Tun Azmi will replace him.

This worries me for 3 main reasons:

1. He has in the past been picked for promotion over several senior candidates with far more experience than he has. The same will be true if he is appointed to the most powerful position in our nation’s judiciary.
2. He’s had intimate involvement with UMNO. He’s been their lawyer before, and no one knows whether or not he’s still a card-carrying member.
3. He’s had significant involvement in the corporate world.

(My source of info for these concerns is the Malaysiakini report I’ve linked here to the words “appointed” and “word on the street”.)

(Graphic taken from Malaysiakini.)

If you are deeply concerned, as I am, please read and sign THE PETITION to His Majesty the Yang DiPertuan Agong, asking for the Judicial Appointments Commission to be set up, just as the PM promised. Haris Ibrahim started this petition, just as he did the previous petition to His Majesty, asking for a Royal Commission of Inquiry. Whether or not it was because of the petition, we got our Royal Commission!

Let’s have our voices heard once more. We’ve nothing to lose and everything to gain. I don’t want to see less-than-qualified people occupying our judiciary’s top positions, and the Commission is our best chance of ensuring this in the long term.

Once you’re done signing, please spread the word to family and friends. Email your friends, post it up on your blog, or on Facebook and Friendster … please get the word out, ASAP!

Thank you.

      I’m breaking my vow of silence just this once. You all know what this post is about. I mean… how can I NOT blog about this?

      Malaysia held its 12th General Election on Saturday, the 8th of March, 2008. This election saw the ruling Barisan Nasional (BN or the National Front) coalition suffer its worst election defeat in Malaysian history. The Opposition denied them a two-third majority in Parliament. The final count stands at 140 seats to the ruling coalition, and 82 to the Opposition. The BN lost four states (Penang, Selangor, Kedah, and Perak) and failed to capture Kelantan from PAS (the Pan-Malaysian Islamic Party or Parti Islam Se-Malaysia). The BN of course, still form the federal government upon winning the election by a simple majority.

      Before I give you my two cents’ worth, here is some election trivia, courtesy of Malaysiakini (posted on the 10th of March, 2008):

      Here are another two election facts that I thought were worth noting:

1. This year’s voter turnout was about 75% - not too different from the usual voter turnout in previous elections.
2. Prime Minister Dato’ Seri Abdullah Ahmad Badawi has earned the dubious honour of being the only BN leader in Malaysian history to lead the coalition to its finest election victory (2004) and its most severe election defeat (this one la) thus far. Even more striking is the fact that the two elections in question were consecutive.

      And now for my two cents’ worth.

      I spent almost the whole of Saturday night up checking Malaysiakini’s live updates as the ballots were being counted and the results were slowly coming out. I think like most people, I knew the Opposition would do well, but never expected them to win this big! I was frankly over the moon! But why do I think this is such a good thing?

      First, a stronger Opposition presence in Parliament was absolutely crucial. The BN had been winning too much for too long. And winning 92% of the seats in Parliament last election was the ultimate feather in their cap. They’d become too arrogant and were ever less concerned about the the people. The stuff listed in my previous post is evidence enough. And that was just the tip of the iceberg.

      This election result comes as a slap on their faces, delivered by the rakyat. It’s a signal that they cannot afford to ignore us any longer. But I’ll talk a bit more about that later. Anyway, a stronger Opposition presence in Parliament means a stronger check and balance on the powers that be.

      Particularly significant is that BN has been denied the two-thirds majority they’d grown so accustomed to having. This means they can’t amend the Constitution willy-nilly, since you need at least a two thirds majority vote to amend the Constitution. They’ve had no problems making amendments in the past because all BN MPs have to toe the party line or face disciplinary action.

      But just how lightly have they treated the higest law of the land? Over the past 50 years, the BN has used their (almost) unbroken two-third majority to amend the Constitution 690 times. Contrast this to the fact that the US has been independent for more than 200 years and have only amended their constitution 27 times.

      Apart from that, I hope to see some proper debate in Parliament now, before any legislation is passed. The quality of BN MPs has steadily deteriorated over the years, and with it, the quality of parliamentary debate (not that the Opposition are blameless in this). Don’t take my word for it. Go to Youtube, search for "Malaysian Parliament videos", and watch the search results in horror. Yes, I REEEEEALLY hope the standard of parliamentary debate improves with the injection of many fresh MPs, lots of whom are highly qualified professionals. Equally important is that the rakyat have sacked a slew of incompetent MPs.

      Also noteworthy is the impact that the internet and alternative media have played in this election. BERSIH, the Lingam tape, the greatly increased information about Opposition policies and stances on issues… they all started getting out to the people through websites like Malaysiakini, and blogs like Rocky’s Bru, jelas.info, Zorro Unmasked, etc. Heck, bloggers even got elected to Parliament after campaigning and raising funds online. Since they decided to go free for a week, Malaysiakini was bombarded with half a million hits an hour on Saturday night, as the election results were being announced, and had to have six mirror sites to cope with the traffic. Yes, in an age where the mainstream media has become increasingly muzzled and increasingly irrelevent, the masses have turned to cyberspace and the blogosphere to fill the void.

      But there’s one other thing I’m particularly happy about with this election: To an unprecedented extent, people stopped voting along racial lines. I wouldn’t go as far as this article here and suggest that racial politics has been shattered. No, I think unfortunately there’s still quite a way to go before that happens. But Saturday was a helluva start! People of all races voted against the BN. Otherwise it would have been impossible for Selangor especially, to fall to the Opposition.

      We were, for the first time in decades, united against a government that has wronged us all. I’d like to think that an increasing number of voters have wised up to BN’s divide and rule strategy. They’ve been playing us since 1969; pitting Malays against Chinese, all the while getting votes from a majority of at least one of those two races, and depending on the faithful Indians to always vote for them as well.

      That changed in this election. Leslie Lopez of Singapore’s The Sunday Times (9th of March, 2008, news, page 22) observed (emphasis my own):

      "As Malaysians wake up to a dramtically altered political landscape, few expect any violence.

      "That’s because the rebuke delivered to the BN wasn’t motivated by racial politics.

      "It was Malaysian."

      That, for me, is the most heartening lesson to take from this election. It also shows how powerful we can be when we’re united… what we can acheive when we stand together.

      But we can’t keep patting ourselves on the back for having the courage to vote for change. Sending out a message through the ballot box was the easy part. Now we have to hold ALL the politicians, regardless of party, true to their promises. RPK summed it up nicely in his article The Aftermath of the ‘Bloodbath’:

      "So remember who put you where you are today. Remember who gave you your job. The rakyat can hire and the rakyat can fire. We, the rakyat, made you and we, the rakyat, can break you. Just remember that and with God as our witness we shall not fail to do that if you fail to do what you promised to do."

      That’s the message we sent the BN through this election, but now we have to keep reminding the whole lot of them that this is still true. I think many people voted Opposition not because they were fantastic, but as a rebuke to the government. The Opposition have now been given a chance to prove their worth. They campaigned as the Barisan Rakyat (People’s Front).

(Poster courtesy of mob1900)

      We must never let them forget they’re OUR emplyees.

      But this election also gives the BN a chance to redeem itself. After all, they still rule the country. They too should take heed of the message we’ve sent. And we should not let them forget that we’re their bosses either.

      This is a lot of hard work, naturally. But a good place ot start is the "Get to know your MP" initiative started by Haris Ibrahim. Click the link to find out more about it, and how you can get involved.

      That’s all from me now. I’ll sign off by saying here’s to a new beginning!