A former UN Special Rapporteur on the Independence of Judges and Lawyers Param Cumaraswamy wrote an open letter to the Minister of Internal Security and Home Affairs syed Hamid.
In the letter Param described Hamid Albar detention a journalist, blogger and state exco as undemocratic.
YB Datuk Seri,
Administrative detentions without trial of: Raja Petra Kamaruddin, Tan Hoon Cheng and Teresa Kok
The arrests and detentions without trial and the circumstances leading to the same of the abovenamed three under the Internal Security Act 1960 (ISA) on Sept 12, 2008 are a source of grave concern for the rule of law and democratic values in Malaysia.
All three are reported to have been detained under Section 73(1) of the Act for purposes for police inquiry on grounds that there were reasonable cause to believe that they were acting in a manner prejudicial to the security of Malaysia.
Under the same Act they can be detained for 60 days thereafter you as minister could sign a detention order for further detention up to two years which could further be renewed. All such detentions are without trial and without any form of judicial supervision.
A further cause for concern is over the show cause letters sent to three newspapers by your ministry to explain within one week for manipulation of sensitive issues, reporting a racially sensitive statement made by a politician belonging to the dominant political party currently in control of the government and for reporting that the present Inspector General of Police had been “paralyzed” after undergoing a bypass surgery.
Those notices were served on the newspapers under the Printing Presses and Publication Act 1984, a legislation for annual licensing of newspapers by the executive.
Obviously if their explanations are not found satisfactory by you the annual licenses issued for these newspapers would be revoked. The decision to revoke is final and under the Act cannot be questioned “by any court or any ground whatsoever”. Service of such notices leaves a chilling effect on freedom of the press.
With regard to the arrests and detentions in the case of Raja Petra Kamaruddin, there are two charges for sedition and criminal defamation pending against him for the very news items posted in his blog.
Without awaiting the trials on these charges detaining him administratively would be seen as interfering into the due process of the court and prejudging the criminal charges and could amount to contempt of court.
Such detention could also be seen as preventing him from adequately preparing his defences to the two criminal charges.
A puzzling situation
In the case of journalist Tan Hoon Cheng, though it is a relieve that she has since been released after 18 hours of detention yet to subject her to such arrest and detention under the ISA for having recorded and reported accurately in the newspaper what is now alleged to be sensitive is beyond belief.
What is of serious concern was the person who uttered the alleged sensitive remark, Ahmad Ismail, is currently under investigation for sedition.
To date, it is reported that the police had not completed their investigations. Yet how in the interim the journalist who reported could be a threat to the security of the state is most puzzling.
How did the police come to believe that she could be a threat to state security when the investigations were incomplete? Your clarification at your press conference on Sept 13 that she was detained partly because of “alleged threats on her personal safety” is untenable.
A country where the government has been resisting legislation to provide whistle blowers protection could resort to arbitrary detention under such a draconian legislation to provide such protection is shocking indeed.
Why the journalist who merely recorded and reported the statement was subjected to such detention when the person who uttered the statement is still not charged under the Sedition Act is yet to be explained.
Your contention is that Ahmad has been suspended for three years from his political party meant that action has been taken against him. This is most unsatisfactory. The suspension from his political party was an internal party procedure.
No action as yet has been taken against Ahmad by the state for an offence against the state.
In any event the fact that Umno (the political party) suspended him must necessarily mean that what she reported was true and correct.
In the case of member of parliament Teresa Kok’s detention, you were reported to have said in the press conference that “she started a very sensitive issue with the question of the ‘azan’ and it should be stopped”.
She vehemently denied these allegations from the beginning and from media reports of various persons including the mosques concerned there appears abundance of evidence to support her denial.
Yet to date no action seems to have been taken against the former Selangor menteri besar Khir Toyo who lost his seat and his government in the March 8 general election.
It was he who made the allegations against her which were reported in a vernacular newspaper. Should he not be investigated for the offence of false news under Section 8(A) of the Printing Presses and Publications Act 1984 if not detained under the ISA?
The newspaper which originally published the news too may have committed the same offence. It is learnt that a police report has been lodged against Khir Toyo. What is the state of the investigations? Why detain Teresa Kok in the interim?
These latest developments are reminiscent of what happened in Malaysia in 1987 when 106 were detained under this draconian legislation and four newspapers banned.
Those detentions led in the following year to the government’s assault on the independent judiciary.
It is also reminiscent of how internal dissensions within the dominant political party in power spilled over to violations of human rights and fundamental liberties and rule of law in the nation with the guardian of these values namely the judiciary severely damaged and still not recovered.
There is something most unsettling over the conduct of the police on the investigations of the police reports lodged and the selectivism applied in the actions taken thus far.
As I mentioned in my earlier letter addressed to you on March 24, 2008 regarding the continued detention of the HIndraf 5 leaders under the ISA detention without trial offend the first principle of the rule of law.
I urge you to without delay take appropriate action to release Raja Petra and Teresa Kok from detention.
I also urge you to withdraw the three show cause notices served on the newspapers
I am copying this letter to the chairperson of the UN Human Rights Council, the UN High Commissioner for Human Rights and the Secretary General of the Commonwealth in which bodies Malaysia is much involved.
It is to bring to their attention the fragility of the rule of law in Malaysia and how it is deteriorating. With these developments Malaysia’s role in these bodies is tenuous.
I hope Malaysia is called upon to account for the violation of the rule of law, human rights and democratic values before these bodies. The Malaysian government must be ashamed of itself.
The developments must be a source of embarrassment to Mohd Shafie Aqbal who only in August was elected Chair of the exco of the Commonwealth Parliamentary Association.
PARAM CUMARASWAMY is a former UN Special Rapporteur on the Independence of Judges and Lawyers.