Friday, 7 November 2008

First Echelon Is Released. But Why?

RPK has been released from Kamunting and the clutches of the ISA! So long as the ISA exists, Malaysia's prisoner of conscience has been freed but is not free; indeed no Malaysian is free. But it is great that he is back with his family and more importantly, back with his soul mate.

The question on my mind is; why was he released? I am too skeptical to think that all the candle light vigils (though I was at some of them) pressured the powers that be to turn around.

According to a Malaysiakini report, "This morning, the Shah Alam High Court ruled that the detention of Raja Petra under the ISA was illegal and ordered his immediate release. Judge Syed Ahmad Helmy Syed Ahmad said that Raja Petra's detention was unconstitutional. He said the home minister had not followed proper procedure under Section 8 of the ISA to issue the detention order against Raja Petra."

I am not a lawyer but at first glance many people may ask; does the judge mean that if the Home Minister had stuck to procedure under Section 8 of the ISA then RPK would not be released even though as he said the detention per se is unconstitutional? Or is the ISA unconstitutional? I am sure this does not mean all ISA detainees can be released because their detention was unconstitutional. Does the ISA become constitutional only if the right procedure is followed? I am getting more confused here.

However, we must not take credit away from Malik Imtiaz and his team. The grounds for habeas corpus they fought on must have been the basis of the judgement and this same Malaysiakini report sheds some light:

A procedural non-compliance

Syed Ahmad Helmy in his judgment said the court looked into two factors, namely the constitutionality of the Act and whether the home minister acted correctly within his jurisdiction to issue the order.

He said Section 8(b) of the ISA indicated that those issued with the detention order by the minister might not be allowed for judicial review. However, the court could hear such an application if there were instances of possible abuse of powers.

“I agree the formulation of the ISA was to protect the security of the nation and is constitutional. However, the court can review the detention order if it finds instances where the minister could have acted beyond his jurisdiction to issue the two-year detention order.

Syed Ahmad Helmy said there was no relevance for the minister to issue the order against Raja Petra on the basis of ‘mala fide’ (bad faith).

“Following this, the court finds there is a procedural non-compliance as stated under Section 8(1) of the ISA based on the minister’s affidavit.

“Hence the court finds the minister had acted ‘ultra vires’ (beyond his powers) in issuing the detention order under the ISA section. For example, the minister cannot issue an order if a person has in bad faith decided to colour his hair red.

“Following this, the court is allowing the plaintiff’s application and orders for his release,” the judge said.

“This is not a situation like Jemaah Islamiyah or communists. This is just a man whom the government thinks can bring it down to its knees,” the counsel had argued.

There was no re-arrest that was initially feared but could there be more to the release of RPK?

Raja Petra was quoted after his release as having said, "This showed ISA cannot be used. I hope this is not a political decision. I don't want to be the prime minister. I want Anwar to be the PM".

What did RPK mean? What did he hope was not a political decision; the detention or the release? Who is it that wants to be prime minister? Semantics anyone?

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