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No real check and balance to ISA use

KUALA LUMPUR, 14 Nov 2008: Habeas corpus does not provide adequate check and balance on the abuse of the Internal Security Act (ISA), said a lawyer.

This is because most applications for the writ of habeas corpus are unsuccessful, said KL Bar criminal practice committee chairperson Datuk N Sivananthan.

According to Sivananthan, “the rejection rate for the writ of habeas corpus for ISA detainees is almost 100%”.

“Perhaps you can say that nine out of 10 applications are unsuccessful,” he told The Nut Graph without giving any specific figures.

Sivananthan attributed the high rejection rate to the “extremely poor separation of powers between the executive and the judiciary” in the last 20 years, which started after the judicial crisis in 1988.

In an interview with The Star Online on 22 Oct, Home Minister Datuk Seri Syed Hamid Albar denied that there is no due process involved when someone is detained under the ISA.

He said that “the due process is that you can still bring habeas corpus in order to determine whether the grounds [cited] by the Minister are correct”.

Sivananthan said though the option to file a writ of habeas corpus does exist, it has become much more difficult to succeed.

Prior to 1988, detainees, when filing a writ of habeas corpus application, were able to argue mala fide (bad faith) or insufficient justification for their arrest by the minister.

However in 1988, Parliament enacted what is essentially an ouster clause which effectively bars any argument save for breach of procedural requirements.

Section 8 of the ISA spells out that no judicial review or jurisdiction exercise shall be granted to any court of law, in respect of any decision made by the King or the minister in exercising their unrestricted power in accordance with the act.

Sivananthan explained that due to these clauses, the habeas corpus application in Malaysia is restricted to procedural irregularities only.

However, he said in recent years, the courts have taken a far more restrictive approach and even procedural irregularities such as detention without trial are being defined as either directory or mandatory.

To date, 65 detainees are being held in Kamunting Detention Centre in Perak without trial.

“And since many of these [detention without trial] cases are political in nature, the courts tend to be overly cautious in interpreting the law,” Sivananthan added.

The recent release of ISA detainee and editor of web portal Malaysia Today Raja Petra Raja Kamarudin was one of the rare instances where the writ of habeas corpus has been granted.

Raja Petra was released by the High Court on 7 Nov, which allowed his application for a writ of habeas corpus.

The blogger, who was arrested under the ISA on 12 Sept, and ordered to be detained for two years in Kamunting on 22 Sept, had sought his release on the grounds that his detention was unlawful and unconstitutional.

However, on 12 Nov, Kota Alam Shah assemblyperson and Hindu Rights Action Force (Hindraf) legal advisor M Manoharan failed for the third time to be released from ISA detention after the High Court dismissed his application for a writ of habeas corpus.


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