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The Malaysian Bar is disappointed with the Court of Appeal’s ruling last week in the case involving former Internal Security Act (ISA) detainee Abdul Malek Hussein.  The decision, which overturns the High Court’s earlier RM 2.5 million award to Abdul Malek Hussein for wrongful arrest and detention, is regressive, and disquieting. 
 
We are surprised that the Court of Appeal appeared to overturn findings of fact made by the trial judge, who saw the witnesses and heard their live testimony.  Furthermore, the order of costs of RM50,000, especially against a victim of the ISA, is exorbitant, and punitive in nature.

The Judiciary serves as the last bastion of protection against any abuse of power, particularly by those who wield authority, such as law enforcement personnel.  It must operate as a check-and-balance mechanism.  By allowing the appeal, the Court of Appeal has failed in this role.  The judgment is inimical to the safeguarding of the rights of individuals against unlawful arrest, detention and torture.

The Court of Appeal’s arguments reinforce the potential for grave abuse of the ISA’s already draconian and repressive features.  Its standard for the burden of proof regarding the occurrence of torture is unfairly stringent and will, in practice, almost never permit allegations of torture to be substantiated, given that the victims are already in conditions of strict detention and are generally denied access to legal counsel and to all outsiders during the initial 60-day period in custody.

We denounce the detention of persons without trial under any circumstances, as it is an unjustified infringement of universal principles of human rights, and a violation of the Rule of Law and the principles of a democratic Government.  Among other reasons, detention without trial violates a person’s right to be presumed innocent until proven guilty and his/her right to a fair and public trial where he/she may be defended.

We urge the Judiciary to exercise its function of providing the final recourse when rights are violated, and to provide redress against acts of impunity.  We look to the Federal Court to do what is just, and right.
 
 

Ragunath Kesavan
President
Malaysian Bar

29 March 2010