News Constitutional Law TERRORISM: Our response and where to draw the line 
| TERRORISM: Our response and where to draw the line |
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| Thursday, 17 November 2005 05:00pm | |
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TERRORISM: OUR RESPONSE AND WHERE TO DRAW THE LINE ©YA Dato' Gopal Sri Ram Introduction Before you can even begin to talk about our response to terrorism, it is vital to get your nomenclature right. The starting point is, of course, to ask the question: who is a terrorist? Like Alice, the answer to the question depends on which side of the mirror you are asking the question from. This is because one man’s terrorist is another man’s freedom fighter. Let us look at a few instances. The Nazi German Occupation of France was resisted by many patriotic French citizens. Many paid with their lives for their courage. The occupying German Generals labelled the French Resistance or the Underground as “terrorists” for the attacks they carried out on German installations. The French, on the other hand called them “freedom fighters”. In pre-independence Kenya, the Mau-Mau took to the jungles and fought the British troops. Their leader, Jomo Kenyatta was interned because he was a terrorist. But ask any Kenyan and he will tell you that Jomo was a freedom fighter. In the Middle East, we have the example of the West Bank and Palestine. The Israelis call the Palestinian Hizbollah who fight the occupation of Janine as “terrorists”. But the Palestinians call them “liberators”. In Asia, we have the example of India. I do not think that any sensible person could have termed either Gandhi or Pandit Nehru as a terrorist. Yet, if you look closely, you will see that they and their wives, who both died in detention, were dealt with under the Defence of India Rules passed to deal with subversion and terrorism. Bhagat Singh was hanged as a terrorist. Yet, today, India honours him as a freedom fighter. Compare the foregoing examples with our own. Here, in Malaysia, we had, even after Merdeka, and until early 1960’s the Communist Terrorists who resorted to armed violence to disrupt the peace of civil society. They are still referred to as terrorists. Nobody in their right mind will call them freedom fighters. Why the difference? The answer, I think, lies in the common factor that links the other examples. It appears that where one country occupies another and, either directly or indirectly, controls the Government of the day, then, prima facie, those who resist the occupation cannot come within the concept of who a terrorist is if his aim or object is to rid his country of the foreign occupier. Also, in all the illustrations given earlier, there was no act of violence by any citizen of the occupied country upon the ordinary civilians within the occupying country. The legislative response to terrorism But where does one draw the line as a matter of pure law? One attempt at defining terrorism is to be found in section 1 of the Anti-terrorism, Crime and Security Act 2001 (the ACSA”. It reads:
When faced with the problem of the communist terrorists in this country during colonial rule, the British introduced the Emergency Regulations 1948 which was replaced by the Emergency Regulations 1951. These were the legislative precursors to the Internal Security Act 1960. There are other statutes that are aimed to deal with the protection of law and order and the prevention of crime. But the Internal Security Act 1960 (the “ISA”) is our primary legislative response to terrorism. A word or two about that Act. First, note that it is enacted pursuant to Article pursuant to Article 149 of the Federal Constitution. That Article says:
Mark you, the words on which I have placed emphasis make it clear beyond doubt that a statute enacted under the special power conferred by Article 149 must contain one or more of the recitals housed in clause 1 the Article. If it does not then it is invalid for want of constitutional procedure. For present purposes, sections 73, 8, 8a and 8b of the ISA are relevant. These provide as follows:
Looking at these sections, who is a terrorist? The answer it seems to me is this. A terrorist is one who acts in “any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof”. Put differently, the test as to who is a terrorist is to be found in the quoted words appearing in section 73(1) of the ISA. I think that that is a very fair definition of who a terrorist is. Our Parliament has rightly excluded religion, political dogma and any other type of motive from a threat of terror. It has also rightly kept away from the issue whether the terrorist is one who plants the bomb or who is an instigator of a suicide bomber. By adopting this objective standard, complex issues such as religious or political extremism become irrelevant. This avoids intellectual confusion. Compare this with the UK Act. Section 2 of the ACSA uses the words “political, religious or ideological cause” as one part of the definition of terrorism. This is bound to produce serious difficulties to the courts who in the final analysis have to interpret the section. What if the object was none of those appearing in section 2, but was a matter of pure economic revenge? Would that fall within any of the parts of the definition? This is just one difficulty that may arise. Judicial response The general rule is that all statutes are to be interpreted in the same way. But, there are statutes and there statutes so that the general rule must give way in particular cases. So, for example, human rights statutes acquire quasi constitutional status and must receive a broad and liberal interpretation that advances the object of the statute. That is the view we took in the very recent unreported case of Government of Malaysia & Ors v Saggong Tasi. Inverting the proposition, statutes that curtail, diminish, abrogate or exclude human rights must be interpreted strictly and against the body authorised to take the relevant action. Take another example. It is settled law that the preamble of an Act of Parliament is, absent any ambiguity, not to be utilised in interpreting its substantive part. So, in Re Tan Boon Liat [1976] 2 MLJ 83, Abdoolcader J said:
Where the enacting words are clear, the preamble cannot operate to restrict that meaning. The preamble cannot limit or change the meaning of the plain words of a statutory provision. In Secretary of State for India v Maharajah of Bobbili [1919] 46 IA 302, their Lordships of the Privy Council interpreted the plain meaning of a Madras statute regardless of the restrictive provision of the preamble thereof, and Lord Shaw in delivering judgment remarked that as the section of the statute made operative provisions in excess of the apparent ambit of the preamble, it was the section that must govern and not the preamble. The most important aspect in this regard is that the preamble cannot be invoked for the purpose of creating ambiguity in a statute. As Lord Davey observed in Powell v The Kempton Park Racecourse Company Limited [1889] AC 143 185 (at page 185):
Where the terms of an enactment are clear, precise and unambiguous, it must be applied and enforced according to its plain meaning, and it is not the business of the court to speculate as to what might have been in the mind of the enacting authority as it may appear to the court from the preamble or otherwise (Badri Prasad v Ram Narain Singh AIR 1939 All 157 per Collister, J.)” [Emphasis supplied]. But the ISA is not an ordinary Act of Parliament like the Electricity Act or the Road Transport Act. It is a very special piece of legislation that is enacted under a provision of the Constitution that demands that such an Act must recite certain things in its preamble. In other words it is not a gratuitous preamble that is inserted by Parliament. It is mandated by the supreme law. It follows, therefore, that the preamble to the ISA cannot be equated to the preamble in the statute considered by Lord Davey in Powell v The Kempton Park Racecourse Company Limited, the latter being the product of a Parliament under an uncontrolled Constitution. Hence, when a provision of the ISA comes up for interpretation, the court is not only entitled but duty bound to take the mandatory preamble into account. There does not appear to be any reported case in point. But there is an anecdotal reference. In Theresa Lim Chin Chin & Ors v Inspector General of Police [1988] 1 MLJ 293 it was argued for the detainees that the preamble to the ISA must be taken into consideration when deciding whether the facts of a particular detention fell within its scope. I recall well the Honourable Attorney General’s response. Relying on Lord Diplock’s dictum in Black-Clawson International Ltd v Papierwerke Waldhof-Aschaffenburg AG [1975] AC 591 about the use of preambles in Acts of Parliament, he submitted that the preamble to the ISA should be ignored. Although the Attorney General’s argument found favour with the Supreme Court there is no reference to the point in the judgment. Until fairly recently, judicial review of an arrest under section 73 of the ISA was not reviewable by a court. The phrase “reason to believe” was held to import a subjective test. It was enough if the policeman in question said that he personally had reason to believe. He did not have to go on to state the grounds on which he entertained such belief. The leading case on the subject is Tan Sri Raja Khalid bin Raja Harun, Re, Inspector General of Police v Tan Sri Raja Khalid bin Raja Harun [1988] 1 MLJ 182 where Salleh Abas LP said:
Having found an argument that was accepted by the House of Lords in R v Inland Revenue Commissioners, ex p Rossminster [1980] AC 952 to be unrealistic and pedantic, the learned Lord President continued:
With respect, what was overlooked by the Supreme Court was the effect of the word “reason” in the phrase under consideration. On high authority, this word imports an objective test. In King Emperor v Deshpande AIR 1946 PC 123, the Privy Council had to deal with Rule 129(1) of the Defence of India Rules, 1939, which said this:
One of the questions which arose before the Board was whether a police officer making an arrest under rule 129 (1) was bound to prove to the satisfaction of a Court before whom the arrest was challenged that he had reasonable grounds of suspicion. In answering that question in the affirmative Sir John Beaumont who delivered the Advice of the Board said:
The subjective test point established by Raja Khalid was reversed by the Federal Court in Mohamad Ezam bin Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449. It was held that section 73(1) imported an objective test. Unfortunately the Federal Court did not go the distance and hold that the word “satisfied” also called for an objective test. A reading of the judgments in that case appear to continue to provide support for the narrow and restrictive view taken in Karam Singh v Minister of Home Affairs, Malaysia [1969] 2 MLJ 129. So the decision of the Minister continues to be immunised from judicial review. What if the Minister does in fact give reasons for his decision and they turn out to be the wrong ones? Can the court intervene and quash the erroneous detention? The answer is that it cannot. And the authority for that proposition is the judgment of Dzaiddin CJ concurred in by Abdul Malek Ahmad FCJ in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & another appeal [2002] 3 MLJ 72. It was there held that if a provision of written law did not require a decision-maker to give reasons and he did give reasons, albeit wrong ones, these cannot be examined and taken into account. What if the detaining authority denied the alleged terrorist access to counsel? The high level watermark answer to this question was given in Deshpande v Emperor AIR 1945 Nagpur 8, in the following terms:
However, in our jurisdiction a line has been drawn through this constitutional right. The present position on the right to counsel is that stated by Salleh Abas LP in Theresa Lim Chin Chin & Ors v Inspector General of Police [1988] 1 MLJ 29 and affirmed by the Federal Court (speaking through Siti Norma FCJ) in Mohamed Ezam v Ketua Polis Negara [2002] 4 MLJ 449 is that whether a detainee should be permitted to consult a counsel of his choice is something that
So, to show that his constitutionally guaranteed right has been infringed, a person detained under section 73(1) of the ISA must prove two ingredients. First he must prove that the obstruction from seeing his counsel was a deliberate act by the police. Second – and this is a cumulative requirement – he must prove that the police acted in bad faith. And bad faith here does not mean “collateral purpose”. It means mala fides in the strict sense. That is made clear by the use of the word “deliberate”. How a detenu under section 73(1) of the ISA is expected to achieve this very high standard is not known. There is simply no judicial guidance on the subject. It follows that the right guaranteed by Article 5(3) has become; not through any Legislative or Executive act; but through the process of judicial interpretation, to borrow the words of Venkatachaliah J (later Chief Justice of India) in Roop Chand Adlakha v. Delhi Development Authority AIR 1989 SC 307 “a mere rope of sand”. It is no longer a real or meaningful right. It is a mere teasing illusion. It is not out of place to mention that even if the detenu does in fact achieve this almost unattainable target, his detention is not invalidated. He is not entitled to be released. His remedy lies elsewhere. It was so held in Lee Mau Seng [1971] 2 MLJ 137 and approved by Suffian LP in Ooi Ah Phua v Officer-in-Charge Criminal Investigation, Kedah/Perlis [1975] 2 MLJ 198. And in Mohamed Ezam v Ketua Polis Negara [2002] 4 MLJ 449 the Federal Court speaking through the judgment of Siti Norma FCJ held that –
Again, there is no judicial guidance as to what “elsewhere” means or if habeas corpus is not the proper remedy then what in real terms the proper remedy is. Further, the alleged terrorist detained under section 73(1) of the ISA is not entitled to be present at the hearing of his application for habeas corpus. That was held by our Federal Court in Ketua Polis Negara v Abdul Ghani Haroon [2001] 4 MLJ 11 through the judgment of Haidar FCJ in reliance on authorities that did not represent even the then current jurisprudence in the field of human rights. So, the words “the court shall inquire into the complaint” appearing in Article 5(2) have lost their common law power and potency despite being upgraded to a guaranteed constitutional right. I say this because the right of an applicant to instruct counsel to cross examine the deponent of the affidavit delivered on behalf of the detaining authority was implicitly recognised by the House of Lords in Ex parte Khawaja [1984] AC 74 where Lord Wilberforce said:
It follows that a detainee under section 73(1) ISA has the right to insist on giving oral evidence at the hearing of his habeas corpus application. But he cannot do that if he has no constitutional right to attend at the hearing. So too, he cannot instruct his counsel on the questions to be put to the deponents of the affidavits in opposition if he is absent at the hearing. The Federal Court in Ketua Polis Negara v Abdul Ghani Haroon [2001] 4 MLJ 11 unfortunately overlooked these matters. May an alleged terrorist who is tortured or subjected to cruel and inhuman treatment while under detention be released through habeas corpus? The answer again is “No”. And it is to be found in Lau Lek Eng & Ors v The Minister of Home Affairs, Singapore & Anor [1972] 2 MLJ 4 which has been applied by our courts in Theresa Lim Chin Chin & Ors v Inspector General of Police and Morgan a/l Perumal v Ketua Inspektor Hussein bin Abdul Majid [1996] 3 MLJ 281, just to mention two. However, there are encouraging signs in a positive and forward direction, KP Gengadharan JC in Rajeshkanna v Tuan Hj Abd Wahab [2004] 5 MLJ 155 has in commendable judgment indicated a change of thinking on the subject. He said:
The learned Judicial Commissioner was, of course, referring to section 365 of the Criminal Procedure Code (“the Code”) which employs the phrase “illegally or improperly detained”. Some cases have held these to be interchangeable expressions. They have been discussed by KP Gengadharan JC in his learned judgment. A detention is ab initio illegal because the detention contravenes a law. So, the word “illegally” in section 365 refers to the point of origin, that is to say, the moment of detention. But a detention that is ex facie legal may nevertheless be improper because of the way in which the detenu is treated while in custody. It refers to a state of affairs obtaining during custody. Hence cruel and inhuman treatment during custody must, on the plain reading of the Code, be a ground on which habeas corpus may issue. Ackner LJ recognised this in Middleweek v Chief Constable of Merseyside [1990] 3 All ER 662 when he said:
Although the House of Lords in Weldon v Home Office [1990] 3 All ER 672 disapproved Ackner LJ’s dictum, that decision in turn has become irrelevant after the coming into force of the Human Rights Act 1998 so that Ackner LJ’s view is good law today. In any event, there is good reason to read section 365 liberally and therefore the word “or” separating the words “illegally” and “improperly” as disjunctive rather than conjunctive. Section 365 is basically a human rights provision contained in a Code that exists to ensure fairness in criminal proceedings. Also, section 365 is a mechanism to enforce the human right of personal liberty (taken even in its most narrow sense) guaranteed by Article 5(1). The section is also the procedural adjunct to Article 5(2). Accordingly, it must be accorded quasi constitutional status when it comes to be construed. There is nothing novel in this approach. In Canadian National Railway Co v Canada (Canadian Human Rights Commission) [1987] 1 SCR 1114 at p 1134, Dickson CJ said:
Last, but not the least, there is even the ordinary approach to construction that where Parliament uses two different terms, it refers to two different things. That is what Thomson CJ said in Lee Lee Cheng v Seow Peng Kwang [1960] MLJ 1:
Conclusion There is no defect in the way in which Parliament has responded to terrorism. The Executive in reliance of its interpretation of the Act must take steps from time to time to ensure that life in civil society is not disrupted. It is for the courts to say whether any or all of these steps accord with the Constitution. The courts, through their decisions appear to have thrown an immunising shield over the Executive in respect of detentions made under section 73(1) of the ISA. It has reached a point where Articles 5 and 8 are mere decorations on paper. So it is not the Executive or Parliament that have drawn the line. It is the courts. And they have drawn it in the form of an editorial blue pencil across the human rights provisions. I can therefore do no better to conclude this paper than with the now famous and well worn words of Lord Atkin in Liversidge v Anderson [1942] AC 206:
*This paper was delivered at the 13th Malaysian Law Conference.
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