Monday, November 10, 2008

Habeas Corpus is not dead

Definition: The writ of habeas corpus serves as an important check on the manner in which state courts pay respect to federal constitutional rights. The writ is "the fundamental instrument for safeguarding individual freedom against arbitrary and lawless state action."

Malaysian blogger Raja Petra Kamarudin, fondly known as RPK, was release last week after the Malaysian High court granted his habeas corpus application and ruled that the Home Ministry had acted outside of its powers.

But RPK trials are not over and his Sedition hearings continue today.

Nonetheless, the ruling was a victory for Malaysian society as a whole as it sends a strong message that the government does not hold absolute power. The ruling may also mark the beginnings of a successful movement to abolish the ISA once and for all. Such a move may have ripple effects on our shores.

Blogger Raja Petra freed
By : Rita Jong
8 Nov

SHAH ALAM: The High Court yesterday ordered the immediate release of Raja Petra Kamarudin from his two-year detention under the Internal Security Act.

This followed the decision of judge Datuk Syed Ahmad Helmy Syed Ahmad to allow the Malaysia Today editor's habeas corpus application, which was filed on Sept 31.

Syed Ahmad held that the home minister had issued the order outside the scope of Section 8(1) of the Internal Security Act 1960.

He also allowed the application by Raja Petra's counsel, Malik Imtiaz Sarwar, to order that he (Raja Petra) be brought from the Kamunting detention centre to the Shah Alam court before 4pm for his release.

Syed Ahmad said he found there was no merit for the applicant's counsel to state that Section 8 was unconstitutional, as it fell within the ambit of Article 149 of the Federal Constitution.

(Article 149 allows action to be taken against anyone who threatens national security even if it violates his fundamental liberties.)

"But in issuing the order, the minister can only do so based on grounds provided under the ambit of the act. The minister cannot simply detain someone. He must be confined to the circumstances stated."

He said based on the grounds given by the minister for the detention, "I found that it did not fall within the scope of Section 8 (1) of the ISA."

On the grounds that the order was made in bad faith, he said that this was not a matter for review by the court as "mala fide is not procedural and non-compliant."

Raja Petra was arrested on Sept 12 as he was deemed a threat to national security and the order to detain him under the ISA was issued on Sept 22.

He was detained on the grounds that he:

- owns and operates the Malaysia Today website;

- intentionally and recklessly published his articles as well as readers' comments on Malaysia Today that were critical of and insulted Muslims, the purity of Islam and the personality of Prophet Muhammad; and,

- that he published his articles concerning national leaders that were defamatory and false with the intention of undermining confidence and inciting public hatred against the government, which could affect public order and prejudice national security.

In filing the habeas corpus application, Raja Petra named the home minister as the respondent.

Senior federal counsel Abdul Wahab Mohamad and Dusuki Mokhtar appeared on behalf of the minister. Malik Imtiaz was assisted by Azhar Azizan Harun, Ashok Kandiah, J. Chandra, Sreekant Pillai and H.K. Neoh.

After Syed Ahmad delivered his decision, Raja Petra's supporters clapped with joy, only to be ticked off by the judge who reminded them that they were in a court of law.

Raja Petra's wife, Marina Lee Abdullah, and their two daughters, Suraya and Sarah, were in tears.

Later, Marina said: "No words can describe how I am feeling right now. I am just glad everything went the way I hoped. This is fantastic."

Raja Petra arrived at the court in a white van, escorted by five warders, at 3.15pm to a hero's welcome.

When he got out of the van, the blogger, clad in a brown T-shirt and jeans and looking tired, gave the thumbs-up sign as some 100 supporters chanted "RPK! RPK!" He hugged and kissed his wife.

He was then led into the courtroom and Syed Ahmad ordered his release at 3.20pm.

After the court stood down, a supporter placed a garland on him.

"I am quite surprised that I am released.

"Not many people who challenged the ISA detention succeeded. So I didn't give it too much hope."

He added that the fight to abolish the ISA must continue.

Raja Petra had to jostle his way past some 50 photographers to get into a maroon-coloured Rolls Royce with Marina, before leaving the court compound at 3.35pm.

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