The Attorney-General and the Minister actually crossed swords on this matter. The Attorney-General blames the Minister for signing my detention order without first obtaining proper legal advice. That was why my detention order was so flawed it gave the High Court no choice but to release me.
THE CORRIDORS OF POWER
Raja Petra Kamarudin
Raja Petra's plea allowed, court holds to quorum rule
The Federal Court yesterday (9 June 2009) set aside its earlier decision in the case of Raja Petra Kamarudin because it was heard by a two-member panel.
Chief Judge of Sabah and Sarawak Tan Sri Richard Malanjum ruled there was a "quorum failure" and this was "an appropriate case for the exercise of the inherent power of this court" to set aside the earlier finding made by Tan Sri Nik Hashim Nik Abdul Rahman and Datuk Zulkefli Ahmad Makinudin after Datuk Seri S. Augustine Paul recused himself.
Malanjum also set aside the dismissal of three applications by Nik Hashim and Zulkefli together with Paul, who subsequently joined the bench.
Yesterday's decision was related to the appeal by the Home Ministry against the release of Raja Petra from detention under the Internal Security Act.
The decision to dismiss Raja Petra's application to disqualify Paul was made by a two-member panel on February 17.
Initially, Paul, Nik Hashim and Zulkefli were supposed to hear the appeal by the ministry but before hearing began, Raja Petra, through his counsel Malik Imtiaz Sarwar and Azhar Azizan Harun, applied to recuse Paul on the grounds that he (Raja Petra) had made certain remarks in his website about Paul as the High Court judge in Datuk Seri Anwar Ibrahim's corruption trial in 1998.
Raja Petra also claimed that Paul had said in a judgment in 2001 that he (Raja Petra) was a threat to national security.
Raja Petra's application to recuse Paul was dismissed by Nik Hashim and Zulkefli on the grounds that there was no merit. They had then invited Paul to sit with them on the bench to hear Raja Petra's other applications pertaining to the appeal.
The other applications were:
- To increase the existing three-man panel to five or seven on grounds that complex and constitutional issues which have far-reaching consequences would be argued;
- To adduce fresh evidence in the Federal Court to show he was not a threat to national security after the High Court in Shah Alam allowed his habeas corpus application on November 7 last year; and
- To introduce the notes of evidence in his ongoing sedition trial at the Petaling Jaya Sessions Court that prosecution witness Superintendent Gan Tack Guan admitted that he did not investigate the truth of the article Let's send Altantuya murderers to hell, which was posted on the blogger's website.
All the three applications, however, were later dismissed.
Malik Imtiaz had then filed a review application on February 18 against the decisions of the Federal Court.
Malanjum said that a new date for rehearing of the application would be fixed later.
Deputy public prosecutor Tun Majid Tun Hamzah appeared for the home minister. – New Straits Times, 10 June 2009
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That was what the New Straits Times reported on 10 June 2009.
Umno and the government say that Bloggers lie a lot and that most Blogs publish untruths and distorted news reports. Well, the New Straits Times is owned by Umno and we all know that an Umno-owned newspaper would never lie. So I have republished the news item above to show that this is not what I say but what the Umno-owned newspaper says. Surely, therefore, this can’t be a lie.
And this brings us to the issue in hand.
I was detained under the Internal Security Act for the second time in September 2008. The first time was in April 2001.
As soon as I was detained in April 2001, my wife filed a Writ of Habeas Corpus and the Kuala Lumpur High Court judge, the recently deceased S. Augustine Paul, ruled my detention legal because, according to Augustine Paul, I am a threat to national security. That was what I was detained for: for being a threat to national security.
In other words, Augustine Paul ruled my detention as proper and justified.
My lawyers then appealed to the Federal Court and this time the five-member quorum ruled in my favour. The Federal Court’s opinion was that my detention was illegal. Nevertheless, I had already been freed by then so it was merely a ‘technical win’.
The government knew it could not legally continue to detain me so it released me before the court could order my release. The government probably thought it would be better to release me and ‘save face’ rather than having to release me by order of the court.
In my second detention in 2008, my wife again filed a Writ of Habeas Corpus. But the day the case was supposed to be heard in court they quickly issued a new detention order and packed me off to Kamunting. That made the application irrelevant and my wife had to start all over again and file a fresh Writ to contest the new detention order.
This time, however, the Shah Alam High Court ruled in my favour and the government had no choice but to reluctantly release me. But this time the government decided to appeal the High Court decision because they were determined to send me back to Kamunting.
The appeal went to the Federal Court in Putrajaya. Only this time it was not me but the government that was appealing the High Court decision.
We then asked for a seven-member quorum, failing which we were prepared to settle for a five-member quorum. But the court would only allow us a three-member quorum on what they said was ‘an administrative decision’. What this meant only they know and they refused to explain further who in ‘the administration’ made this decision. We can only assume it came from the top, as no one would tell us anything.
My lawyers also asked the court who the judges were going to be but they refused to reveal this information. We suspected one of the judges would be Augustine Paul and we were proven right.
On the day of the hearing, my lawyers told the court we wanted Augustine Paul to recuse because of the ‘conflict of interest’. Augustine Paul had already declared that I am a threat to national security and that my detention was legal back in 2001 but the Federal Court had disagreed with him and reversed his decision.
There is no reason to believe he had changed his opinion about me, especially considering I had written a lot of nasty things about him over all those years. Certainly he would bear a grudge against me and would be biased in his opinion. He would most likely take this opportunity to seek revenge. I would probably have done the same if I were in his shoes.
But Augustine Paul refused to recuse. And the Federal Court also refused to entertain our application for him to recuse. Finally, I had no choice but to instruct me lawyers to walk out and boycott the hearing. But this would mean the government would win by default and I would most certainly be sent back to Kamunting that very same day.
We all knew the risks involved. My wife was quite distressed but she said that if this were my decision then she would go along with it although she is extremely opposed to the idea.
My lawyers then stood up but just before they could walk out of court the judges suddenly did a U-turn and declared that they would allow my application after all. Augustine Paul was asked to leave the bench so that the remaining two judges could consider my application for him to recuse.
My lawyers protested and told the court that it goes against the Federal Constitution of Malaysia for just two judges to hear our application. Since Augustine Paul has been asked to leave the bench then he should be replaced so that we are back to three judges. The court, however, brushed off our objections and continued to hear our application with only two judges. And the two judges rejected our application and invited Augustine Paul back into court ‘to take his rightful place on the bench’.
That statement alone demonstrated bias. They had already planted in their minds Augustine Paul’s ‘rightful place on the bench’. My lawyers told the court that we protest and that we will be appealing this decision and the court replied ‘you can do what you like’.
The court did not hide the fact that if felt nothing by utter contempt for us. The court was telling us ‘we can do what we like to you and there is nothing you can do about it’. But while the court can send us to jail for contempt of court, unfortunately, we can’t send the judges to jail for contempt.
Anyway, my lawyers brought the matter before another Federal Court and this second court agreed that we were right and the other Federal Court was wrong. This means the court would need to reconvene with a three-member quorum of judges to hear our application for Augustine Paul to recuse. The court can’t ask Augustine Paul to leave the room and go for a smoke while the remaining two judges hear our application.
This was what the second Federal Court ruled on 9 June 2009.
Since then, however, the Federal Court has kept very quiet. They refuse to continue with the hearing. Apparently, the whole matter has been put on hold and it looks like the matter has died a natural death. But the government has not withdrawn its appeal. They are still appealing the Shah Alam High Court decision to release me. So why are they not proceeding?
I did a bit of probing and found out why. The government realises that its case against me is very weak. The Attorney-General and the Minister actually crossed swords on this matter. The Attorney-General blames the Minister for signing my detention order without first obtaining proper legal advice. That was why my detention order was so flawed it gave the High Court no choice but to release me.
The only solution would be to forget about appealing the Shah Alam High Court’s decision to release me, since their case is so weak anyway, and instead they should issue a new detention order -- except this time it would be done properly so that it would be impossible for me to contest it. Which means they will have to fabricate new charges against me that this time will stick.
And that was when I decided this whole thing was a non-starter and I would be wasting my time trying to fight the government through the legal process. How does one fight one’s case in court when the government keeps shifting the goalpost and keeps amending the rules every step of the way? The rules are being made up as we go along in the spirit of ‘heads I win, tails you lose’. So either way you will still lose.
The last month since before Christmas the government has been using the mainstream media to attack me. This was meant to provoke me in the hope I would retaliate and make a mistake, which would tighten the noose around my neck. But I did not do as what they had hoped I would do. So they have gone back to the drawing board to conjure a new strategy. And they hope this new strategy would be a winner compared to their failed strategies thus far.
But what they failed to take into consideration is that I have eyes and ears in Bukit Aman. And my many ‘little birds’ keep me updated on everything that is being planned. Even as the meetings are still ongoing I receive information about the steps they are taking. But this latest strategy they are working on is also a non-starter and is doomed to fail before they even launch it.
And in part two of this article I shall reveal what they are planning, supported by documents I have managed to get my hands on.
And this will be what we talk about tomorrow -- so stay tuned for more.
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