A-G's omission to act questioned

This NST Online op-ed piece jointly written by Raja Aziz Addruse and Ding Jo-Ann needs to be read in full. Raja Aziz, as many will know, is a former President of the Malaysian Bar and he remains one of the most respected lawyers in Malaysia and an authority on Malaysian constitutional law. In this piece the duties and responsibilities of the Attorney-General in relation to certain police actions are examined and questioned in relation to the A-G's apparent omission to act on recent police actions.
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THE recent arrests of Teresa Kok, Sin Chew journalist Tan Hoon Cheng and well-known blogger Raja Petra Kamaruddin under the Internal Security Act 1960 (ISA) caused concern that the government could so readily use the draconian law of preventive detention without trial to silence criticisms made against it. According to the Home Minister, the journalist had been arrested because her life had been threatened and the police wanted to conduct a comprehensive investigation. She was, it would seem, arrested under the act for her own safety.

On that basis, the arrest of the journalist was clearly an abuse by the police of their power under the ISA.

Since he is the Minister responsible for the police, the Home Minister is answerable for the wrongdoing of the police.

Kok, too, was released a few days after being detained without any plausible reason being given for her arrest. Raja Petra was ordered to be released by the court on Nov 7.

After the initial arrest under section 73(1) of the ISA, the Minister had subsequently made an order under section 8 of the act for him to be detained for two years. This order has now been declared unconstitutional and ultra vires by the court.

The question that needs to be asked is how it is that such powers are now being exercised with what appears to be scant regard for the fundamental rights, liberties and freedoms guaranteed under the Federal Constitution.

Should those conferred with such drastic powers not be advised as to the limits of their power and of their responsibility in the exercise of such powers? The person who is constitutionally entrusted with the function of advising the government and ministers of government on such matters is the Attorney-General. It is his constitutional duty to uphold the Federal Constitution and citizens’ fundamental liberties as guaranteed under Part II of the Federal Constitution.

It would have been the Attorney-General’s duty to advise the police and the Home Minister that the reasons they gave for arresting Tan and Kok under the ISA did not warrant the exercise of power under section 73(1) of the ISA.

He should also have advised the police and the Minister that there are specific prerequisites which need to be satisfied before the power of arrest and detention under the act can be lawfully invoked.

Read more here.