Friday, November 07, 2008

Bring ISA detainee RPK to court by 4pm & Release him, says court

It is true that the Court has ordered that Raja Petra be immediately released - and has ordered that he be brought to court today to be released.

The Shah Alam High Court today ordered the release of Raja Petra Kamarudin, an ISA detainee, from the Kamunting detention centre following his habeas corpus application.

The Malaysia Today editor was detained under ISA in September. He was ordered to be detained for two years after he was considered a threat to national security over his articles published in his website.
He is to be brought to the court today to facilitate his release. - New Straits Times, 7/11/2008 Raja Petra Released


Malaysia Today editor Raja Petra Kamaruddin is to be freed Friday.

He succeeded Friday in his bid to obtain a release order from detention under the Internal Security Act (ISA) via his habeas corpus application.

The judge ruled that the Home Minister had acted outside his jurisdiction when he issued the two-year detention order under Section 8(1) of the ISA.

The High Court here also allowed Raja Petra to be brought to court to be released today.

He was detained for a second time under the ISA on Sept 12.

On April 11, 2001, Raja Petra along with 10 other activists were detained under the ISA for allegedly plotting to overthrow former prime minister Tun Dr Mahathir Mohamad. Raja Petra was released 52 days later. - Star, 7/11/2008 Court Frees Raja Petra


The Shah Alam High Court this morning ruled that the detention of well-known blogger Raja Petra Kamarudin 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 that the Home Minister had not followed the proper procedure under Section 8 of the ISA to issue the detention order against Raja Petra.

The judge also ordered that Raja Petra, editor of the popular 'Malaysia Today' website, be produced in court by 4pm today after which he should be immediately released.

Raja Petra is presently being held at the Kamunting detention centre in Perak.

raja petra to police station on burma doctor sd 040908 03The ruling by the court followed a habeas corpus application by Raja Petra's counsel seeking his release from detention under the security law.

The blogger (left) was arrested on Sept 12 by police and held at an unknown location before he was sent to the Kamunting Detention Camp in Perak on Sept 23.

Home Minister Syed Hamid Albar on Sept 22 had signed a detention order for him to be held under section 8(1) of the ISA. Under the Act, the initial two-year detention period without trial can be renewed indefinitely

Syed Hamid then told reporters that he was satisfied with the reasons given by the police for the blogger's detention.

"The detention is due to Raja Petra's articles that ridiculed Islam which could arouse anger among Muslims.

"The police had recommended his detention and after going through the papers, we are satisfied that there are strong grounds for him to be further detained for two years (in Kamunting)," he said.

According to his lawyer J Chandra, Raja Petra was arrested for publishing articles on his news portal which allegedly tarnished the leadership of the country and insulted the sanctity of Islam.

rpk raja petra sedition trial day 3 081008The former newspaper columnist had earlier been charged with sedition and defamation after linking Deputy Prime Minister Najib Abdul Razak and his wife to the sensational murder of a Mongolian woman.

.- Malaysiakini, 7/11/2008 Court Orders Raja Petra's Release

Let us hope that they do not re-arrest RPK and detain him again under the ISA...something they did to Karpal Singh when the court released him from ISA Detention. (Operasi Lallang 1987)

I await the written judgment of the court to understand what really happened..

The courts today have only the power to see if the Detention Order was issued correctly - i.e. whether the procedure was followed, whether it was the Minister who signed or.... The courts cannot anymore look at the reasons (most of the time absurd) the Minister had issued the Detention Orders. [This amendment to the ISA and the Detention Without Trial Laws came after Operation Lallang 1987 ... ]

Judicial Review or Judicial Intervention

Since the coming into force of the amendments[28] to the laws allowing for DWT, judicial review has been limited to questions of compliance with any procedural requirement in this Act.

The Prime Minister when tabling the Internal Security (Amendment Act) said as follows: The interventionist role of judicial decisions and the trends of foreign courts should not be copied because such actions was against the concept of separation of powers between the executive and the judiciary which was upheld in Malaysia. If the courts can reverse executive’s decision, it would make it impossible for the executive to make any decision for fear that the courts would intervene. The ruling party would then be waiting for the decisions of the courts and the results of appeal to higher courts’[29].

The meaning of judicial review was defined by s 8C Internal Security Act[30] to ‘include proceedings instituted by way of (a) an application for any prerogative orders of mandamus, prohibition and certiorari; (b) an application for a declaration or an injunction; (c) a writ of habeas corpus; and (d) any other suit, action or other legal proceedings relating to or arising out of any act done or decision made by the Yang di-Pertuan Agung or the Minister in accordance with this Act’.

By virtue of s 8B Internal Security Act[31], judicial review was ‘limited to any question on compliance with any procedural requirement in this act governing such act or decision.

Section 8A further limits this, and the said section is laid out as follows:

‘No detention order shall be invalid or inoperative by reason –

(a) that the person to whom it relates –

(i) was immediately after the making of the detention order detained in any place other than a place of detention referred to in section 8(3);

(ii) continued to be detained immediately after the making of the detention order in the place in which he was detained under section 73 before his removal to a place of detention referred to in section 8(3), notwithstanding that the maximum period of such detention under section 73(3) had expired; or

(iii) was during the duration of the detention order on journey in police custody to a place of detention referred to in section 8(3); or

(b) that the detention order was served on him at any place other than the place of detention referred to in section 8(3), or that there was any defect relating to its service upon him.’

By virtue of s 8D[32], ss 8B and 8C were made applicable to any proceedings instituted by way of judicial review whether such proceedings were instituted before or after the coming into force of the amending Act. Only proceedings in respect of which a final decision of the court had been given and/or to any appeal or application to appeal against such final decision survived. - Preventive Detention In Malaysia - A Brief Overview
This hurdle, however, did not prevent the court to review the detention by the police under the ISA before the Minister had issued the Detention Order..
Recently, in the Federal Court case of Mohamad Ezam Mohd Noor –v- Ketua Polis Negara & Other Appeals (2002) 4 CLJ 309, the court looking at the period of administrative detention by the police, being the period prior to the issuance of the Detention Orders by the Minister, held that the court is entitled to review the sufficiency and the reasonableness of the respondent’s [i.e. the Police] reasons for believing that there were grounds to justify the appellants’ detention under s.8 ISA and that the appellant had acted or was about or likely to act in a manner prejudicial to the security of the nation. The court said that the objective test, and not the subjective test, applies and what this means is that the court would now look and see whether a reasonable police officer would in that particular situation have arrested and detained the said detainee. In this case, interestingly, the court did not just consider the facts that existed prior to the arrest, but also went on to considered what happened after the arrest during the period of detention, to determine the real reasons for the arrest and detention. This case was concerning the ISA, and logically it should also apply to other detention without trial laws.- Preventive Detention In Malaysia - A Brief Overview
Hence, it is very interesting to see the reasons behind RPK's release... it looks like it was some procedural mistake made by the Home Minisiter..but we will have to wait for some written judgment to be written to be 100% sure.
He said that the Home Minister had not followed the proper procedure under Section 8 of the ISA to issue the detention order against Raja Petra - Malaysiakini, 7/11/2008 Court Orders Raja Petra's Release
Bravo judge Syed Ahmad Helmy Syed Ahmad...

Now, let us continue to fight for the release of the others still detained under the ISA and the other laws that allow for Detention Without Trial...

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