TERRORISM: OUR RESPONSE AND WHERE TO DRAW THE LINE
©YA Dato' Gopal Sri Ram
Judge, Court of Appeal, Malaysia
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:
“1(1) In this Act ‘terrorism’ means the use or threat of action where–(a) the action falls within subsection (2), (b) the use or threat is designed to influence the government or to intimidate the public or a section of the public, and (c) the use or threat is made for the purpose of advancing a political, religious or ideological cause.
(2) Action falls within this subsection if it–(a) involves serious violence against a person, (b) involves serious damage to property, (c) endangers a person's life, other than that of the person committing the action, (d) creates a serious risk to the health or safety of the public or a section of the public, or (e) is designed seriously to interfere with or seriously to disrupt an electronic system.
(3) The use or threat of action falling within subsection (2) which involves the use of firearms or explosives is terrorism whether or not subsection (1)(b) is satisfied.
(4) In this section – (a) ‘action" includes action outside the United Kingdom, (b) a reference to any person or to property is a reference to any person, or to property, wherever situated, (c) a reference to the public includes a reference to the public of a country other than the United Kingdom, and (d) ‘the government’ means the government of the United Kingdom, of a Part of the United Kingdom or of a country other than the United Kingdom.
(5) In this Act a reference to action taken for the purposes of terrorism includes a reference to action taken for the benefit of a proscribed organisation.'’
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:
“(1) If an Act of Parliament recites that action has been taken or threatened by a substantial body of persons, whether inside or outside the Federation –
(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or
(b) to excite disaffection against the Yang di–Pertuan Agong or any Government in the Federation; or
(c) to promote feelings of ill–will and hostility between different races or other classes of the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or
(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof,
any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.
(2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.” [Emphasis supplied].
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:
73 (1) Any police officer may without warrant arrest and detain pending enquiries any person in respect of whom he has reason to believe –
(a) that there are grounds which would justify his detention under section 8; and
(b) that he has acted or is about to act or is likely to act 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.
(2) Any police officer may without warrant arrest and detain pending enquiries any person, who upon being questioned by the officer fails to satisfy the officer as to his identity or as to the purposes for which he is in the place where he is found, and who the officer suspects has acted or is about to act 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.
(3) Any person arrested under this section may be detained for a period not exceeding sixty days without an order of detention having been made in respect of him under section 8 –
Provided that –
(a) he shall not be detained for more than twenty–four hours except with the authority of a police officer of or above the rank of Inspector;
(b) he shall not be detained for more than forty–eight hours except with the authority of a police officer of or above the rank of Assistant Superintendent; and
(c) he shall not be detained for more than thirty days unless a police officer of or above the rank of Deputy Superintendent has reported the circumstances of the arrest and detention to the Inspector–General or to a police officer designated by the Inspector–General in that behalf, who shall forthwith report the same to the Minister.
(4)–(5) ( Repealed by Act A61).
(6) The powers conferred upon a police officer by subsections (1) and (2) may be exercised by any member of the security forces, any person performing the duties of guard or watchman in a protected place and by any other person generally authorized in that behalf by a Chief Police Officer.
(7) Any person detained under the powers conferred by this section shall be deemed to be in lawful custody, and may be detained in any prison, or in any police station, or in any other similar place authorized generally or specially by the Minister.”
“8. (1) If the Minister is satisfied that the detention of any person is necessary with a view to preventing him from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or the economic life thereof, he may make an order (hereinafter referred to as "a detention order") directing that that person be detained for any period not exceeding two years.”
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:
“Although the preamble is a part of a statute, it is not an operating part thereof. The aid of the preamble can be taken only when there is some doubt about the meaning of the operative part of the statute. The preamble undoubtedly throws light on the intent and design of the enacting authority and indicates the scope and purpose of the legislation itself but it should not be read as a part of a particular section of that written law. Where the enacting part is explicit and unambiguous the preamble cannot be resorted to, to control, qualify or restrict it. The enacting words of the statute are not always to be limited by the words of the preamble and must in many instances go beyond it, and where they do so, they cannot be cut down by reference to it. It is accordingly clearly settled law that the preamble cannot restrict the enacting part of a statute though it may be referred to for the purpose of solving an ambiguity.
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):
‘There is, however, another rule or warning which cannot be too often repeated, that you must not create or imagine an ambiguity in order to bring in the aid of the preamble or recital. To do so would in many cases frustrate the enactment and defeat the general intention of the Legislature.’
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:
“But we would prefer to adopt a realistic rather than a pedantic approach on a matter such as this. We regard the preference for the objective approach to the subjective formula approved in Merdeka University Bhd v Government of Malaysia [1982] 2 MLJ 243, 246 as only a general proposition to be applied in normal judicial review cases.”
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:
“We hold that since section 73(1) and section 8 of the Act are so inextricably connected, the subjective test should be applied to both. The court cannot require the police officer to prove to the court the sufficiency of the reason for his belief under section 73(1). It follows that the learned judge was in error when he said in his judgment to the effect that if there is evidence that the applicant has acted in a manner prejudicial to the security of the country such evidence ‘must be disclosed to the court albeit confidentially even on a need–to–know basis, to enable the court to be satisfied that the arrest and detention of the applicant under section 73 is justified in the circumstances.’ He made this unfortunate statement purporting to rely on JP Berthelsen v Director–General of Immigration, Malaysia & Ors [1987] 1 MLJ 134 the passage at p. 138. In our view the passage should be read in the context of the paragraph in which it appears. Berthelsen was an immigration case. It dealt with the need to give a right to make a representation to an aggrieved person (in this case a foreign journalist) before his legitimate expectation ( i.e. his employment pass) was to be withdrawn from him by the Immigration Authority. Such right of being heard must be given to him even though the grounds upon which the authority proposed to act were based on security considerations. In such case, whilst the authority was required to hear the representation from the aggrieved person, in no sense would it be bound to disclose any grounds or information which in its opinion would constitute security. This is entirely a matter for the authority concerned. Berthelsen is not an authority to say that the test of what constitutes security is an objective test; the case being entirely on a different fact–situation.” [Emphasis added].
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:
“Any police officer... may arrest without warrant any person whom he reasonably suspects of having acted... (a)... in a manner prejudicial to the public safety or to the efficient prosecution of the war”
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:
“Upon the first question it is important to notice the differences between rule 26 and rule 129. Under the former rule an order of detention can be made only by the Central or Provincial Government, though this power may be delegated under the Defence of India Act; and the Government may make an order of detention if it is satisfied with respect to any particular person that, with a view to preventing him from indulging in the subversive activities specified, it is necessary so to do. It is to be noticed that the Government must be satisfied; mere suspicion is not enough, but there is no qualifying adverb such as ‘reasonably’ or "honestly" attached to the word "satisfied". On the other hand, under rule 129, any police officer can arrest on mere suspicion, but the suspicion must be reasonable, the exact words being ‘any person whom he reasonably suspects’. As the High Court noticed in their judgment, the House of Lords, in the case of Shearer v Shields [1914] A.C. 808, had to construe a provision in the Glasgow Police Act authorising constables to arrest if they had reasonable grounds of suspicion, and the House held that the burden rested upon the constable concerned to show that his suspicion was reasonable and his act therefore justified. Their Lordships think that the same result must follow under rule 129.”
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:
“[A]ny refusal …. to afford a detenu reasonable facilities for access to legal advice, or any attempt to place obstacles in his way, will amount to an abuse of power and might even justify an order for immediate release.”
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
“should best be left to the good judgment of the authority as and when such right might not interfere with police investigation. To show breach of Article 5(3), an applicant has to show that the police has deliberately and with bad faith obstructed a detainee from exercising his right under the Article.”
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 –
“A complaint by a person while under lawful detention that he has been refused access to counsel contrary to the second limb of art 5(3) will not have the effect of rendering his detention unlawful and that habeas corpus is not the proper remedy.”
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:
“Now there is no doubt that the courts have jurisdiction to review the facts on which the Home Office's conclusion was reached: there is no doubt that procedural means exist, whether under the head of habeas corpus or of judicial review, for findings of fact to be made, by the use of affidavit evidence or cross–examination upon them or oral evidence.” [Emphasis supplied].
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:
“In my view, there are two distinct and separate parts to every prisoner's detention, ie the order by a court to detain and then the physical detention itself in an authorized place. I am of the humble view that a lawful detention that commences as a perfectly legal detention can become unlawful if the lawful detention is carried out ‘improperly’. Thus, if the lawful detention is carried out in breach of any fundamental rules or regulations pertaining to condition of detention then the detention itself becomes unlawful and improper and may attract the interference of the High Court on an application for a writ of habeas corpus.”
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:
“A person lawfully detained in a prison cell would, in our judgment, cease to be so lawfully detained if the conditions in that cell were such as to be seriously prejudicial to his health …”
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:
“Human rights legislation is intended to give rise, amongst other things, to individual rights of vital importance, rights capable of enforcement, in the final analysis, in a court of law. I recognize that in the construction of such legislation the words of the Act must be given their plain meaning, but it is equally important that the rights enunciated be given their full recognition and effect. We should not search for ways and means to minimize those rights and to enfeeble their proper impact.”
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:
“It is axiomatic that when different words are used in a statute they refer to different things…”
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:
“I view with apprehension the attitude of judges who on a mere question of construction when face to face with claims involving the liberty of the subject show themselves more executive minded than the executive. Their function is to give words their natural meaning, not, perhaps, in war time leaning towards liberty, but following the dictum of Pollock C.B. in Bowditch v. Balchin, (1850) 5 Ex. 378.cited with approval by my noble and learned friend Lord Wright in Barnard v. Gorman [1941] A. C. 378, 393: ‘In a case in which the liberty of the subject is concerned, we cannot go beyond the natural construction of the statute.’ In this country, amid the clash of arms, the laws are not silent. They may be changed, but they speak the same language in war as in peace. It has always been one of the pillars of freedom, one of the principles of liberty for which on recent authority we are now fighting, that the judges are no respecters of persons and stand between the subject and any attempted encroachments on his liberty by the executive, alert to see that any coercive action is justified in law. In this case I have listened to arguments which might have been addressed acceptably to the Court of King's Bench in the time of Charles I.”
*This paper was delivered at the 13th Malaysian Law Conference.