The Court of Appeal ("CoA") has last week allowed the appeal in the case of Abdul Malek Hussin v Borhan Hj Daud. In doing so the CoA reversed the High Court decision which, among others, found that the detention of Abdul Malek under the Internal Security Act ("ISA") unlawful.
The CoA's decision was, almost as usual, unanimous. Although three Judges heard the appeal, only one judgment was written and read out.
Briefly, Abdul Malek was arrested and detained by the police under the ISA on 25th September 1998. The 1st Defendant (Encik Borhan) testified that he told Abdul Malek at the time of arrest as follows:
"Saya memberitahu plaintif bahawa dia ditangkap di bawah Akta Keselamatan Negara 1960 kerana terlibat dengan kegiatan mengancam dan memudaratkan keselamatan Negara."
"I told the plaintiff that he was arrested under the ISA 1960 because he was involved in activities which threatened and were detrimental to national security" (translation is mine).
Then a written form was issued. It reads:
"Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:
(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan
(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia.
"I, Borhan bin Hj Daud, on 25th September 1998, at 2310 hrs had told you, Abdul Malil bin Hussin the reasons why you were arrested under section 73(1) of the ISA 1960, namely:
(a) I believe there are grounds to detain you under section 8 of the ISA 1960; and,
(b) I believe you have acted in a manner which is detrimental to the security of Malaysia." (translation is mine).
In evidence, Borhan said further:
"Plaintif terlibat secara langsung di dalam perhimpunan haram yang di mana setiap perhimpunan haram tersebut diakhiri dengan kacau bilau dan mengganggu ketenteraman awam."
"The plaintiff was directly involved in illegal assemblies where each of the assemblies ended in chaos and disturbances of public peace." (translation is mine).
That was it. No further or other fact was ever told to Abdul Malek on why he was being arrested and/or detained. No particulars or details were ever given.
Justice Hishamuddin Yunus, at the High Court (now a Court of Appeal Judge) held that the arrest and subsequent detention was unlawful because, among others, Abdul Malek was not told of the ground of his arrest. His Lordship said:
"It is my judgment that, in the light of what I have said above, this form cannot be taken to be due compliance with art. 5(3). In relation to compliance under s. 73(1)(a), the form completely fails to meet the requirement as it mechanically parrots the words of the provision of s. 73(1)(a) without showing that the arresting officer had directed his mind to the requirements of s. 8. I had pointed out this requirement in Abdul Ghani Haroon (No. 3). The form also fails in terms of the s. 73(1)(b) requirement, since the plaintiff was not given the slightest clue or intimation as to what he had allegedly done or was likely to do or was about to do that was prejudicial to the security of the country."
Justice Raus in the Court of Appeal apparently disagreed. I have not read the actual judgment yet. My comment here is merely based on a MalaysiaKini report of his judgment.
Justice Raus was reported to have said:
"It is our view the respondent was informed the grounds of his arrest. The officer gave sufficient particulars and thus did not make the arrest and detention unlawful."
With the greatest of respect to Justice Raus and the other two Judges who agreed with him, I beg to differ.
First of all, Article 5 (3) of the Federal Constitution provides that where a person is arrested he shall be informed as soon as may be of the grounds of his arrest.
Meanwhile, article 151 provides that in a preventive detention case, the person being detained shall, as soon as may be, not only be informed of the grounds for his detention but also the allegation of fact on which the detention order is based. The detained person shall also be given the opportunity of making representations against the detention order.
The allegation of fact may however be withheld if its disclosure would affect national security.
The Federal Court in the case of Mohamad Ezam Mohd Nor & Ors v. Ketua Polis Negara  4 CLJ 701 held that not only the arresting officer must tell the arrested person the ground for his arrest, the Court has, in addition to that the power the power "to review the sufficiency and reasonableness of the respondent's reasons for believing that there were grounds to justify the appellants' detention under s. 8 ISA and that the appellants had acted or was about or likely to act in a manner prejudicial to the security of Malaysia."
This opinion is also shared by our Supreme Court (which was then the highest Court in Malaysia) in the case of IGP v Tan Sri Raja Khalid bin Raja Harun.
Although the decisions referred to above are in respect of a section 8 detention (as opposed to a police detention under section 73, the same principle must apply. Both these cases, being decisions of a higher court than the CoA, are binding on the CoA and thus Justice Raus.
Now, the question is this. Has Borhan given to Abdul Malek the "ground" for his arrest and detention and inform him of the "allegation of fact" on which the detention was based?
Bearing in mind that article 151 says that Abdul Malek shall be given the opportunity to make representation against the detention order, the "ground" and "allegation of fact" which must be informed to him must necessarily mean "ground" and "allegation of fact" sufficient for him to make such representation.
Otherwise, how was he going to make such representation? How can he defend himself when he does not know exactly what he has done or accused of having done, where, what time and how it was done?
Let's look at the ground given, namely:
- he was arrested under the ISA 1960 because he was involved in activities which threatened and were detrimental to national security;
- he was directly involved in illegal assemblies where each of the assemblies ended in chaos and disturbances of public peace;
the police believed there were grounds to detain you under section 8 of the ISA 1960; and,
the police believed he had acted in a manner which is detrimental to the security of Malaysia
Can Abdul Malek defend himself against those accusations? Can he make a representation against his detention with that sort of information? How did he threaten national security? How was he involved in the illegal assembly? In what way have the assemblies threatened the peace and how was the fact that the assemblies have threatened the peace connected or related to him? Was he in control of the crowd? When did this happen? The date is important because he might have an alibi.
However, faced with the above questions, I would wonder how the CoA could have arrived to its conclusion (as reported by MalaysiaKini) that "the officer gave sufficient particulars and thus did not make the arrest and detention unlawful".
(I must hasten to add however that I do not know how the case was argued before Justice Raus and his brother Judges and whether the above issue was raised in the manner which I am raising it here).
In addition, as stated above, the Court is also imbued with the power to scrutinise the ground proffered by the officer and decide whether that ground was sufficient for Abdul Malek to be deemed a threat to national security.
Has the CoA done so? Taking the officer's case at its best, namely, that Abdul Malek was involved in illegal assemblies which had always ended in chaos and threatened the peace, the Court ought to ask the question whether such allegation was sufficient to warrant Abdul Malek's detention.
How was he so involved? Did he cause the chaos? Were the participants of the assemblies acting under his orders, directions or behest? Did he ask them to create chaos? How big was the illegal assemblies? How rampant were they? Were the assemblies enough to threaten national security? Was it happening all over the country. Was the situation going so out of control that all our baton wielding FRUs and acid-laced water tank were helpless to subdue the crowd?
These are surely pertinent question to be asked when the Court scrutinised the so called "ground" of arrest and detention. Were they asked? If so, what was the conclusion?
With all due respect, I doubt that the ground, as proffered, was sufficient to make anybody, in his or her right mind, conclude that Abdul Malik was a threat to national security.
The importance of the sufficiency of the ground for arrest and detention cannot be understated due to another reason. In Raja Petra Kamarudin v Home Minister, the High Court held that the Home Minister had not invoked his detention power properly thereby making RPK's detention order unlawful and invalid.
In essence, the Home Minister can only invoke his power to detain someone after he is satisfied that that someone is a threat to national security. If that power is not invoked properly, the Home Minister would be guilty of a "jurisdictional error". He would not have invoked his jurisdiction properly. Any detention order issued by him would then be unlawful and invalid.
The same goes with the police arrest and detention under the ISA.
If the ground and allegation of fact, after being scrutinised by the Court, is found to be insufficient to support any conclusion that Abdul Malik was a threat to national security, how could the police in his case be said to have invoked their power properly?
It is also noteworthy that in Ezam's case, the late Justice Abdul Malek held that the detention was unlawful, among others, because the police "had not not really explain the reasons for their 'belief" that there were ground which would justify the detention. The same is the case in Abdul Malek's case.
Which brings me to the next point, which is the "purpose" point. This is also related to "mala fide" or "bad intention" point.
Abdul Malek was, on the face of it, arrested and detained because of his supposed involvement in the illegal assemblies. But it was established during the trial that the police had never interrogated him on that matter. Instead the police were more interested in Anwar Ibrahim's sex life! Justice Hishamuddin said this:
"The plaintiff, on the other hand, furnishes unchallenged evidence that at no time during his interrogation in Bukit Aman were any specific questions put to him that he was connected to any violent act of any kind or planning any specific violent act. He gives detailed and unchallenged evidence of the content of the interrogations he endured for 19 days at Bukit Aman. In summary, it was about his relationship with Datuk Seri Anwar Ibrahim, the plaintiff's role in the reformasi movement, meetings between Nurul Izzah, Dr. Wan Azizah and Keadilan leaders with foreign political leaders, allegations about Datuk Seri Anwar Ibrahim's sexual activities and the plaintiff's relationship with the opposition party, PAS, and Dato' Fadzil Noor, and his views on the ISA. He was told by his interrogators not to file a habeas corpus application. The nature of the interrogation shows clearly its political nature and that it was being done for collateral purposes ie, intelligence gathering for political purposes and nothing to do with genuine concern for national security. This further reinforces the plaintiff's contention that the first Defendant never had a basis at the material time of the arrest (or, for that matter, at any time thereafter) for a reasonable belief under s. 73(1). In other words, the arrest was from the very beginning mala fide."
The same thing happened in RPK's case. He was arrested for insulting Islam. But the police asked him about the Altantuya's murder instead. And they were arguing with him on what he said about Islam being not correct. The interrogation became a debate session on Islam instead.
In Ezam's case, the same thing happened. Justice Abdul Malek observed:
"the police interrogation and investigations conducted on the appellants after their arrest had no connection with the respondent's press statement that the appellants had acted or was about or likely to act in a manner prejudicial to the security of Malaysia. The tenor of the questioning appeared to hinge on irrelevancy."
That makes the arrest and subsequent detention unlawful. That also threw the real intention of the arrest and detention into light. If the real reason for arrest and detention differed from that which was proffered, than the arrest and detention was mala fide.
The MalaysiaKini report also says:
"The court also viewed that withholding Abdul Malek's right to a counsel, while under detention, as alleged a violation under Article 5(3) of the Federal Constitution, does not make the arrest and detention mala fide."
I am surprised, frankly. In this case, Abdul Malek was denied access to legal Counsel for a good 19 days.
The Federal Court in Ezam's case has clearly held that denial of access to Counsel is a factor to be taken into consideration in deciding the legality of the arrest and detention. To top it up, Justice Siti Norma Ya'akob in that very same case held that:
"The respondent's action in denying the appellants access to legal representation for the entire 60 days of their detention under s. 73 ISA was unreasonable and a clear violation of art. 5(3) of the Federal Constitution which violation could not be validated by art. 149 of the Federal Constitution. This denial of legal representation also supported the appellants' assertions that the ISA was being used for a collateral purpose and that there was mala fide on the part of the police in arresting and detaining them. Moreover, the ISA does not contain any provision which proscribes access to legal representation during the 60-day detention period under s. 73"
This decision, coming from the highest Court of the land, is binding on Justice Raus and his learned brothers in the Court of Appeal!
Again, I must hasten to add that I do not know whether these cases were referred to the CoA during the hearing of Abdul Malek's case.
If they were indeed referred to, I really hope that there are distinguishing factors which makes the Ezam's case not binding on the CoA in the Abdul Malik's case. I can't be sure of that at the moment as I have not read the actual judgment of the CoA.
The CoA further went to reverse a finding of fact by Justice Hishamuddin, who found that Abdul Malik was tortured. I can't say much on this aspect of the decision at the moment.
Suffice if I say now that the Court of Appeal can only do so under specific circumstances only. This is because the High Court is in a better position to be a judge of facts because the witnesses were testifying before the High Court and not before the CoA.
The High Court could see the demeanor of the witnesses, their facial expressions and body language. The CoA don't have that luxury.
Therefore the CoA very rarely do so unless the High Court Judge's finding of fact is perverse or is not supported by evidence. The CoA cannot simply reverse a High Court Judge's finding of fact just because the CoA has a different opinion.
I reserve my comment on this aspect until I have read the whole judgment.
I have stated many times that the ISA is a draconian law. It has to be repealed as soon as possible.
The latest decision of the CoA discussed above is an illustration of how draconian, unjust and vicious the ISA is.
A person can be arrested and detained - and probably even subjected to torture, cruel and inhuman treatment -by those who are supposed to protect us under the law. And the arrest and detention can be done merely because the authority "believe" that the arrested person is a threat to national security.
The powers given to the police and the Home Minister under the ISA is absolute. They cannot be questioned. In the case discussed here, even the CoA, the second highest Court in Malaysia, displayed a paralysing unwillingness to question such powers.
Lord Acton once said, "power tends to corrupt, and absolute power corrupts absolutely. Great men are almost always bad men."
Think about it.