Sunday, October 12, 2008

Let Magna Carta be our beacon of justice

ABOUT 800 years ago, there lived a bad king in England. His name was King John.

King John was not only ruthless, but greedy as he extracted extortionate taxes from his people. He even killed his own nephew, Arthur, in 1206 and imprisoned Arthur’s sister, Eleanor to secure his throne, which he ascended on April 6, 1199.

Though he managed to quell the Welsh Uprising of 1211, his position was much weakened after he was excommunicated by Pope Innocent III in 1207 when he challenged the latter’s choice of Archbishop of Canterbury. When he lost in the 12-year War of Bouvines (1202-1214) with King Philip II Augustus of France while trying to reclaim Normandy in the Battle of Bouvines on July 27, 1214, his barons turned against him.

Today, John is perhaps better known as an enemy of the outlaws headed by the archetypical hero of English folklore, Robin Hood. But Winston Churchill best described John’s legacy as follows:

“When the long tally is added, it will be seen that the British nation and the English-speaking world owe far more to the vices of John than to the labours of virtuous sovereigns.”

How true indeed because we lawyers would always recall this date, June 15, 1215 — the day the barons and John met at Runnymede, near London, and there in a meadow, John attached his royal seal on an agreed document called the Great Charter of Liberty or better known as Magna Carta in Latin.

By divine intervention perhaps, John met an early death a year later on Oct 19 just as he was about to join forces with Pope Innocent III to renege on what he had signed. He was succeeded by his 9-year-old son Henry III who was too weak to take on the barons.

Though Magna Carta was signed with the nobles, it sought not only to restrict the powers of the monarch but to protect the rights of “all free men”. It is a document of outstanding importance because it contributed to the early establishment of the constitutional principles of democracy and rule of law.

Even though 793 years have passed, three of its 63 original chapters still have the force of law in England, and two of them are:

“38. No free man shall be seized or imprisoned, or stripped of his rights or possessions, or outlawed or exiled, or deprived of his standing in any other way, nor will we proceed with force against him, or send others to do so, except by the lawful judgment of his equals or by the law of the land.

“39. To no one will we sell, to no one deny or delay right or justice.”

Hence, Magna Carta influenced the drafting of many constitutions around the world, including that of the United States. Its significance is best summed up by former British prime minister Anthony Eden as follows:

“June 15, 1215 is rightly regarded as one of the most notable days in the history of the world. Those who were at Runnymede that day could not know the consequences that were to flow from their proceedings. The granting of Magna Carta marked the road to individual freedom, to parliamentary democracy and to the supremacy of the law. The principles of Magna Carta, developed over the centuries by the common law, are the heritage now, not only of those who live in these islands, but in countless millions of all races and creeds throughout the world.”

In fact, Chapter 39 of Magna Carta also brought about the remedy against unlawful imprisonment by way of the great writ of habeas corpus when the Habeas Corpus Act was passed in 1679. Habeas corpus means ‘produce the body’ and is said to be the best safeguard of individual liberty because when a writ of habeas corpus is issued by a court of law, the prisoner or détenu (detainee) must be released. Judiciary is, therefore, said to be the bulwark of an Englishman’s freedoms and liberties.

In Malaysia, the right to habeas corpus is incorporated into Article 5(2) of the Federal Constitution.

However, it is ironic that when the British ruled Malaya from 1948 to 1957, Magna Carta was obviously not in their minds when they made Regulation 17 of the Emergency Regulations 1948 to allow the chief secretary to detain, by order, any person for a period not exceeding one year even though Section 4 of the Emergency Regulations Ordinance of 1948, which empowered the British high commissioner to make any regulations he considered desirable in the public interest, expressly stipulated the proviso that “no such regulation shall confer any right to punish by death, fine or imprisonment without trial…”

When the Emergency Regulations ceased after the proclamation of emergency ended on July 29, 1960, Regulation 17 was virtually transplanted into a new statute, called the Internal Security Act 1960 (ISA) which came into force two days later.

But the ISA is not the only preventive law in Malaysia. The other two laws are the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (POPO) and the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA). POPO which came into force on May 16, 1969 after the May 13, 1969 riots allowed the minister to detain without trial any person for up to two years in the interest of public order or in order to suppress violence or prevent crime. Today, there are about 700 detainees under POPO. DDA which came into force on May 30, 1985 allowed the minister to detain without trial any person involved in drug trafficking for up to two years.

Interestingly, preventive laws are permitted under Articles 149 and 150 of the Constitution and such laws are valid notwithstanding that they are inconsistent with Article 5, 9, 10 or 13 of the Constitution or would be outside the legislative power of Parliament.

While it appears that our courts are prepared to order habeas corpus where the detention is made by the police under these laws (see Mohamad Ezam bin Mohd Noor v Ketua Polis Negara, 2002), our courts however will not review a detention order signed by the minister where such law contains a provision ousting the jurisdiction of the courts (see Kerajaan Malaysia & Ors v Nasharuddin bin Nasir, 2004 and Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan & Another Appeal, 2002) notwithstanding Article 5(2) of the Constitution. Hence, depending on which side you are on, there will be arguments for and against such preventive laws.

For the government, it is the state’s responsibility to protect national security.

Preventive laws are like pre-emptive strikes against terrorists, gangsters and drug traffickers. Proponents of such laws, including the victims of terrorism and serious crimes, will ask — do we need to wait until the day when Malaysians have to wake up like the Americans did after Sept 11, 2001 to realise that the shock, horror and revulsion caused by these horrendous acts of terrorism indeed justify preventive detention? This is akin to one reading about accidents in newspapers every day. One may only feel sorry for the dead and injured when reading about it, but if the dead and injured are your loved ones, it is a totally different matter altogether.

The government will no doubt find support in the celebrated words of Lord Denning in R v Secretary of State for the Home Department, ex parte Hosenball, 1977 that “when the state itself is endangered, our cherished freedoms may have to take second place”.

Employing the same argument, if you or your loved ones are the incarcerated, you will cry to high heaven when access to courts and justice is denied. This is particularly so when they are innocent or these preventive laws are abused not for their original intention. And when the matter is taken to the courts, the courts will tell you that in the absence of any ambiguity, the preambles to such laws are of no help in interpreting their substantive provisions (see Re Tan Boon Liat, 1976).

Unless one or one’s loved ones are victims of such travesty of justice, one may not appreciate why the fundamental rights to life and justice as enunciated as far back as Magna Carta are sacred and cannot be overridden.

The right to habeas corpus under Article 5(2) is not a “mere rope of sand”. Perhaps the real threat to the life of a nation is not the detainee but the law itself because it undermines civil liberties as there can never be such a thing as 100 per cent security.

In fact, apart from blaming the judiciary for inaction, I am of the view that the role of the three-member advisory board is equally important because Article 151(2) of the Constitution provides that no citizen shall continue to be detained under any preventive laws unless an advisory board has considered the representations made by the detainee, and made the necessary recommendations to the Yang di-Pertuan Agong.

Article 152 provides that the board must be chaired by a judge or a person qualified to be one. Sadly, the strict rules of procedure and proof do not apply to hearings before the board, and the detainee’s counsel had been denied before the right to cross-examine witnesses.

While these oft-repeated arguments of balancing national security and cherished liberties rage on, my other concern with the use of these preventive laws is that it will only encourage and perpetuate poor police investigations when the state is not required to prove beyond reasonable doubt that a person has committed a crime. It is indeed an easy way out because the Penal Code already has the required provisions to deal with those who commit treason or offences against the state.

In the US and the UK, despite the governments there having passed laws after 9/11 to allow preventive detention, the US Supreme Court and the British House of Lords have fiercely stood their ground against any attempt to remove the right to habeas corpus, citing Magna Carta.

I can do no better by ending with the words of Lord Hoffman in the latter case: “Of course the government has a duty to protect the lives and property of its citizens. But that is a duty which it owes all the time and which it must discharge without destroying our constitutional freedoms. There may be some nations too fragile or fissiparous to withstand a serious act of violence. But that is not the case in the United Kingdom.”

Therefore, let Magna Carta live on, that is, to no one shall we deny justice.

Published in the New Sunday Times, 12 October 2008