Two verdictsdelivered last week are signs of a judicial renaissance, but they are likely to be appealed against.
AN independent, impartial and courageous judiciary with the power to review the legality of government decisions is crucial to the maintenance of the rule of law.
Last week, two heartening judicial verdicts were delivered that arouse hope that the “judicial winter” which engulfed our legal system in 1988 may be thawing.
ISA detention: In one judicial decision on Nov 7, Justice Syed Ahmad Helmy Syed Ahmad of the High Court ordered ISA detainee Raja Petra Raja Kamarudin to be released due to fatal flaws in the Home Minister’s preventive detention order.
Justice Syed Ahmad Helmy now joins a very select band of superior court judges who have issued the writ (order) of habeas corpus to release a person ordered to be detained by the minister.
One must remember that the ISA in section 8C contains an “ouster clause” forbidding the courts from examining the minister’s unlimited and subjective power under section 8 to detain anyone who the minister believes is a threat to national security or public order.
The most infamous case is Karam Singh v Menteri  in which the court laid the foundation for judicial non-interference. “Detention … is not illegal simply because the allegations of fact supplied … in pursuance to Article 151(1)(a) … are vague, insufficient or irrelevant. If the detainee honestly thinks that the allegations of fact are vague, insufficient or irrelevant, he should ask for particulars.”
In other words, the courts and the Constitution cannot help. The detainee must try his luck with those who have seized him! Karam Singh has been followed in some cases and criticised in others. Its ghost continues to haunt and blight constitutional jurisprudence in Malaysia.
In Nasharuddin Nasir v Kerajaan  the Federal Court ruled that “where matters of national security and public order are involved, the court should not intervene by way of judicial review as these are matters especially within the preserve of the Executive”.
In Noor Ashid Sakib v Ketua Polis Negara  the learned judge felt no embarrassment to declare his helplessness: “One only has to read section 8C of the ISA to immediately appreciate that the ouster of judicial review of any act done or decision made by the Yang di-Pertuan Agong or the minister … is total and all-encompassing.
“The jurisdiction to review is only with regard to any question on compliance with the procedural requirement in the ISA.”
The non-reviewability of a minister’s order under section 8 of the ISA is, however, subject to occasional exceptions. In Re Tan Boon Liat  delay by the Advisory Board to consider the detainee’s representations resulted in his release.
There are also a few cases on mala fide. Mala fide does not necessarily mean malicious intention, hatred, jealousy or corrupt motive. In the words of Peh Swee Chin J in Karpal Singh v Menteri  mala fide could mean “that a power is exercised for a collateral or ulterior purpose other than for which it is professed to have been exercised.”
In Minister v Jamaluddin Othman  the preventive detainee had converted from Islam to Christianity. His detention was held to be unconstitutional because it violated his freedom of religion which freedom is not subject to suspension under Article 149 or legislation like the ISA derived from Article 149.
In Tan Sri Raja Khalid Raja Harun  a detention order against a banker was held to be mala fide because there was a misuse of preventive powers for a purpose not contemplated by the law. The court took note that there was no evidence that the detainee had acted in any manner prejudicial to national security.
In Thamilvanen v Timbalan Menteri  the minister’s order was dated April 22, 2004, but was to commence on April 25, 2004, without any explanation for the delay. This was held to be a procedural error sufficient to order release.
To these few cases of judicial review of ministerial discretion under section 8 of the ISA, one may add a number of judicial decisions in which powers of the police under section 73 of the ISA to detain up to 60 days have been subjected to fairly strong judicial scrutiny.
In Mohamad Ezam Mohd Noor v KPN  and Abdul Razak Baharudin v KPN  the court held that the subjective test for ministerial detentions under section 8 is not to apply to police detentions under section 73.
In Abd Malek Hussin v Borhan Hj Daud  the plaintiff was detained by the police for 57 days and subjected to “vile assaults, unspeakable humiliation and prolonged physical and mental ill-treatment.”
Habeas corpus was issued because grounds of arrest were not properly supplied; access to lawyers was denied; and there was mala fide because the interrogation focused on the plaintiff’s relationship with the reformasi movement and not on threats to public order or national security.
In Menteri v Mohd Zambri Mohd Arifin  the Raja Khalid reasoning that laws should only be used for the purpose for which they were enacted was taken one step further.
The detention of a drug dealer under the Emergency (Public Order and Prevention Crime) Ordinance 1969 was held to be illegal because the 1969 Ordinance was a law to secure public order, not to displace the specific safeguards of the Dangerous Drugs (Special Preventive Measures) Act 1985.
AG’s certificate: In another instance of judicial integrity and independence, Sessions Court judge S.M. Komathy Suppiah ruled that the certificate signed by the Attorney-General to transfer Datuk Seri Anwar Ibrahim’s sodomy trial from the Sessions to the High Court was invalid on two grounds.
First, because of the defendant’s legitimate expectation that the AG would not be involved in his case. Second, the violation of the rule against bias.
The defendant had filed a police report against the AG alleging that the AG had tampered with evidence in the 1988 “black eye” incident. In response to this report, the Prime Minister had given an assurance that the AG would not participate in the case. According to the court this assurance created a legitimate expectation.
Additionally, the learned judge, in an admirable act of holistic reasoning, read the Constitution’s Article 145(3A) in the light of the rule against bias in natural justice. Though the AG has undoubted constitutional discretion to transfer cases from one court to another laterally or vertically, the perception of personal bias disqualified him from issuing the certificate.
Ronald Dworkin, the great Anglo-American jurist would fully approve of this type of holistic reasoning. The law is a seamless web and all parts of the majestic network of the law must be read together.
The decisions of Justice Syed Ahmad Helmy and Judge Komathy Suppiah are likely to be appealed against. One cannot predict the reaction of the appeal courts, especially the conservatively inclined apex court. But what is clear is that hopes have been aroused that some signs of a judicial renaissance are clearly evident.