RPK'S HABEAS CORPUS APPLICATION : THE EXPLANATIONS TO SHARE

Let us all share this knowledge together for our better judgement, perceptions and nevertheless our confidence towards the Judiciary independence in our homeland, Malaysia.

Malaysiakini.com, Nov 7th, 2008, 9:46 am
Court frees ISA detainee Raja Petra
Hafiz Yatim

Controversial blogger Raja Petra Kamarudin was released from his Internal Security Act (ISA) detention at 3.20pm.

The editor of the popular Malaysia Today website was brought to the Shah Alam High Court just five minutes earlier.

Expressing surprise with the decision, Raja Petra said: "Not many people have challenged the act (ISA) so much and I did not have much high hopes (of being released).

"This application allowed under Section 8 is a special prize. I am tired."

"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," he said.

"We have to fight all-out and get the ISA abolished," he told reporters.

Raja Petra was greeted by his wife Marina Lee Abdullah and two daughters. Some 50 supporters and friends clapped and cheered when the blogger appeared.

He later left the courthouse with his family in a red Rolls-Royce.

Looking haggard and dressed in a brown T-shirt and jeans, Raja Petra was garlanded by dozens of supporters outside the court before stepping into the vehicle.

This morning, the Shah Alam High Court this 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.

The judge also ordered that Raja Petra be produced in court by 4pm today after which he should be immediately released.

Raja Petra was being held at the Kamunting detention camp in Perak.

"Now is about 10.30am, and I think there is enough time for Raja Petra to be released. I do not want this matter to be prolonged as the weekend starts tomorrow," said the judge.

"I thank the prosecution for their cooperation in handling this case and require your assistance to ensure that the order would be carried out."

Senior federal counsel Abdul Wahab Mohammad said he would make the necessary arrangements by 4pm.

The release comes more than a month after Home Minister Syed Hamid Albar signed the ISA detention order on Sept 23, although Raja Petra was initially arrested under the Act on Sept 12 at his house in Sungai Buloh.

Reasons for the detention

Raja Petra, 58, had named the home minister as the defendant in the habeas corpus application which sought among others for his immediate release and an order that his detention under the ISA was unlawful.

The minister had stated three reasons for Raja Petra's detention:

• that he owns and operates the Malaysia Today website;

• publishing his articles and readers' comments intentionally and recklessly which were critical and insulted Muslims, affecting the purity of the religion and the personality of Prophet Muhammad; and

• publishing articles deemed defamatory or false concerning Malaysia's leaders, with the intention of undermining public confidence and inciting hatred against the government; the articles are alleged to be a threat to national security.

The articles in question were 'Malays, the Enemy of Islam', 'Let's send the Altantuya murderers to hell', 'I promise to be a good, non-hypocritical Muslim' and 'Not all Arabs are descendents of the Prophet'.

Raja Petra was represented by counsel Malik Imtiaz Sarwar, Azhar Azizan Harun, J Chandra and Ashok Kumar.

Upon hearing the judgment, Marina broke into tears and hugged her daughters.

Raja Petra's supporters who were wearing black, yellow, green and orange t-shirts with the message 'No ISA' and 'Free RPK' had clapped when the decision was made.

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.

Raja Petra's lawyer Malik said during submissions earlier that the court has jurisdiction to scrutinise the detention order and to determine if it was made in bad faith.

"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.

Wife: A good sign

Marina, when met by reporters, said she had been hopeful but had not expected the decision.

"This is a good sign that the country is changing and I hope that this change will continue," she said.

"I am speechless and satisfied with the decision. I have not taken breakfast and will do so and wait for my husband's return."

Marina also thanked all her lawyers for their effort in securing her husband's release. Their two daughters - Suraya, 34, and Sarah, 19 - were present as well.

Malik told AFP it was the first time a court has ordered the release of an ISA detainee since 1989, when courts were barred from interfering once a detention order has been signed by the home minister.

"It is certainly an historic ruling and a profound moment for civil liberties in this country," he said, while adding that the government can appeal the decision.

This was the second time that Raja Petra has been arrested under the ISA.
He was also detained in 2001 at the height of the reformasi movement triggered by the sacking and jailing of former deputy premier and now Opposition Leader Anwar Ibrahim.

However, Raja Petra was released after 53 days in police custody, without being sent to Kamunting.

Other related links :

Detention order unlawful - TheStar online

Govt may appeal against court decision - TheStar online
The candle extinguished today but the words of Voltaire flame on - The Wall