Wednesday, 25 October 2017

Operation Lalang and the ISA

Brave New World (The Star)
25 October 2017


TUN Dr Mahathir Mohamad gave an interview to an online news portal a few days ago about Operation Lalang in 1987.
I found the interview to be infuriating and here is why.
Firstly, he tried to absolve himself from any blame by saying the detention was done by the police and on police advice. Gosh, I had no idea he was such a malleable prime minister.
Let me explain how the Internal Security Act (ISA), which was repealed in 2012, worked. When they detained a person initially, it was done at the discretion of the police.
This was when you got a bunch of cops, normally heavily armed, arresting you, usually in the middle of the night.
This detention could last up to 60 days. After those 60 days the detention could be extended to another two years, and another and another ad infinitum.
This longer detention was done at the discretion of the Home Affairs Minister, who was Dr Mahathir at that time.
Nowhere in the law did it say he must obey the advice of the police. The discretion was his and he must take the responsibility of locking people up without trial and putting families into a terrible state of affairs.
Anything else is cowardly.
Then he went on to make light of the detentions, saying that most were released quickly. Yes, sure. This is true, if you were a Barisan Nasional member who was detained.
If you were an opposition member, then you were detained for close to two years.
This may seem like nothing to some but let me say this: when you are detained without trial and the length of your detention is uncertain, as it is totally within the discretion of some minister, this is no small matter.
Can you imagine how distraught a person would be, not knowing when they would be released and being helpless and unable to care for their loved ones?
What about the spouses and the children who don’t know when they will see their father or mother free again? And for what? Com­mitting a crime?
No, because some people accused them of being a threat to national security, with not one ounce of evidence proffered before an impartial court.
The ISA was an unjust law used in an unjust manner. But oh, apparently the ex-PM thought so too and he tried to get rid of it.
But the cops wouldn’t let him. My God, how disingenuous can you get?
You had the power, not the police, and you had 22 years to do something about it.
He went on to say that he had vilified some people to win elections.
Did he also lock people up without trial to win elections?
After all, those who were locked up longest were primarily his direct political opponents.
There will be those who will tell me to shut up. These are the pragmatists, who would rather the past be forgotten so that there can be victory today.
Yeah well, I can’t stop them from acting and behaving as they wish. We are living in an age of pragmatism winning over principle, after all.
And I know with certainty that the ex-PM will never apologise. It is not in his character to admit ever being wrong.
But for goodness sake, don’t insult us with the garbage that he has been spouting.
It presumes we are stupid, and it is an unforgivable insult to the detainees and their families who suffered so much.


Hakimi Abdul Jabar said...

I've quit I can't join u smoking like in the 2014 Walk For Peace. Anyway, the latest Fed Court decision pertaining to the A Kugan Custodial Death & Damages Case and Ang Kian Kok, a Child/Minor's 60 day remand are disconcerting. I've written a summary article and broken in 2 parts for your further public elucidation :

The Common Law Right To A Fair Hearing/Trial
The right to a fair trial has been described as ‘fundamental and absolute’ Brown v Scott [2003] 1 AC 681, 719 and a ‘cardinal requirement of the rule of law’ Tom Bingham, The Rule of Law (Penguin UK, 2011) ch 9.

Fundamentally, a fair trial is designed to prevent innocent people being convicted of crimes. It protects people’s life, liberty and reputation. Being wrongly convicted of a crime has been called a ‘deep injustice and a substantial moral harm’ (Andrew Ashworth, ‘Four Threats to the Presumption of Innocence’ (2006) 10 International Journal of Evidence and Proof 241, 247. Ashworth goes on to say: ‘It is avoidance of this harm that underlies the universal insistence on respect for the right to a fair trial, and with it the presumption of innocence’ : Ibid.)

In England and Wales the right to a fair trial has developed over the centuries, and originally derived from sources such as the Bill of Rights 1689, the common law and of course the Magna Carta 1215, which stated that a "freeman shall not be... imprisoned... unless by the judgement of his peers".

The common law embraced the concept of fair play and adopted rules which became known as the rules of natural justice. The main principles being that “Audi alteram partem” (Latin term, meaning to hear the other side) and “Nemo judex in sua causa” (meaning that nobody may be judge in his own cause ).

The right to a fair trial (a public hearing) is seen as the best means of establishing guilt or innocence and ensuring that justice is seen to be done. It is important if a society is to feel confident about justice and the rule of law. To this end the notion of openness, impartiality and lack of bias have become cornerstones of our legal system.

It was Lord Chief Justice Hewart in R v Sussex Justices, ex parte McCarthy (1924) who famously said “ is not merely of some importance but is of fundamental importance that justice should not only be done, but should manifestly and undoubtedly be seen to be done”.

Thus, for the authorities adumbrated above, it is humbly submitted that the rights to a fair hearing and speedy trial form part of the common law and are enshrined in the Federal Constitution.

Hakimi Abdul Jabar said...

The Rights To A Fair Hearing and Speedy Trial

Although the Federal Constitution does not expressly guarantee the right to a speedy trial, such a right has indeed been read into the supreme law by the Malaysian courts. In Ooi Ah Phua v Officer-in-Charge, Criminal Investigations Kedah/Perlis [1975] 1 MLJ 93, Hashim Yeop A Sani J, when construing Article 5 of the Constitution read such a right into that Article. He said: “A speedy trial is certainly an unwritten right of every person accused of an offence.”

On appeal, the Federal Court affirmed his decision. See, Ooi Ah Phua v Officer-in-Charge, Criminal Investigations Kedah/Perlis [1975] 2 MLJ 198. In particular, Suffian LP who delivered the judgment of the court expressly approved of the learned judge’s above quoted view.

A failure by any justice system to speedily and effectively deliver justice to a prisoner/detainee/litigant constitutes an infringement of the equal protection clause in Article 8 clause (1) of the Constitution.

The Judicial Committee of the Privy Council had decided in Boodhoo v Attorney General of Trinidad and Tobago [2004] UKPC 17, wherein Lord Carswell had stated :
“It is hardly necessary to say that different considerations apply to cases of delay in giving judgment from those concerned in cases of delay in affording a hearing. In the latter type of case the evidence which is to be adduced may no longer be reliable…”

The Privy Council’s reference in the previous passage was to Section 4(b) of the Constitution of Trinidad and Tobago.

For completeness, the material part of that subsection reads as follows:
“4. It is hereby recognised and declared that in Trinidad and Tobago there have existed and shall to continue to exist without discrimination by reason of race, origin, colour, religion or sex, the following fundamental human rights and freedoms, namely:-
(b) the right of the individual to equality before the law and the protection of the law.”

The striking similarity between Section 4(b) and Article 8 clause (1) of the Federal Constitution is to be noted. Any dissimilarity in language between the two provisions is a distinction without a difference. Since the equal protection clause in the Constitution of Trinidad and Tobago admits of an implied right to a speedy trial it is difficult to reason why Art 8 cl (1) of our Constitution should not also do so.

Hakimi Abdul Jabar said...

I was intently reading an article here :

And, I kind of noticed the applicable operation of Common Law pursuant to Art.160 cl.(2) of the Federal Constitution in relation to :
1) right to fair hearing/trial
(Dimes v Proprietors of Grand Junction Canal (1852) 3 HL Cas 759);
2) right to open justice [a legal principle describing legal processes characterized by openness and transparency]
(Scott v Scott [1913] AC 417)

The Common Law is OUR toy that has been forgotten in the cupboard :
In R v Secretary of State for the Home Department ex p Leech (No 2) [1994] QB 198, Steyn LJ held at 210A that: 'It is a principle of our law that every citizen has a right of unimpeded access to a court.' In R v Lord Chancellor ex p Witham [1998] QB 575, Laws J held that the common law affords special protection to the right of access to a court as a constitutional right.