Let’s go for a win-win

The Malaysian government is appealing against the Shah Alam High Court’s decision to release me from Internal Security Act detention, although I was released about two years ago. My lawyers asked me whether to contest the appeal and the following is my reply to the lawyers.

NO HOLDS BARRED

Raja Petra Kamarudin

I say we contest the appeal by the government although even if they win the appeal and my release is overturned it really makes no difference seeing that they can’t re-detain me under the Internal Security Act unless they first apply to extradite me and on condition they can convince a British court that my detention without trial is legal and therefore warrants the British government handing me over to the Malaysian authorities so that I can be sent back to the Kamunting Detention Center.

This is not about me, per se. It is about all Internal Security Act detainees. And I believe that the government’s appeal against my release is also not about me but about the other Internal Security Act detainees. The government realises that if it loses the appeal and the Federal Court upholds the decision of the High Court then this would open up a Pandora’s box. It will allow the other Internal Security Act detainees to also file Writs of Habeas Corpus using the same arguments that we have used to secure my release.

I can see that the government is desperate to win the appeal and to get my release overturned so that they can plug the loophole that allowed my release and to ensure that no other Internal Security Act detainees can use the same loophole in getting their own detentions ruled illegal.

We therefore owe it to the other Internal Security Act detainees to contest the appeal and to try to win our case. This will ensure that the Internal Security Act will not continue to be an ‘open cheque’ for the government to use in silencing dissent and in stifling free speech, like what is happening now. The government will now need to be careful in how they use the Internal Security Act because detainees will now be able to challenge their detention, and win, if the application of the law is abused.

Okay, let us assume that the government wins the appeal and my release is overturned. First of all, under the dual criminality clause, since the UK does not also have a similar law, then the Malaysian government can’t apply to extradite me. From the word go it becomes a non-starter. It would merely be a technical win that would not be enforceable. So, win or lose, I would still remain free.

Another point to consider is that I was already facing charges for the same ‘crimes’ for which I was detained under the Internal Security Act. Therefore, since the government has won the appeal against my release, this would mean it already has a sort of ‘conviction’ against me. Under the double jeopardy clause, I can’t be punished twice for the same crime. And this would mean the government can’t then re-charge me on the charges that had earlier been dropped — discharged not amounting to an acquittal.

The government is trying to get a second bite of the cherry. Chances are the government will win the appeal against my release from Internal Security Act detention. And this win will then prevent them from filing further charges against me since my Internal Security Act detention would already be regarded as my punishment.

Can you see that if we win then the win would benefit all Internal Security Act detainees and if we lose then the government can no longer pursue me with fresh charges?

This is why I call it win-win. Both ways we win. Whether the government wins or loses its appeal we will still win either way. So let’s contest the appeal and never mind what the outcome is going to be because we are going to benefit from the decision whatever the outcome.

Furthermore, if you look at the four ‘charges’ under my Internal Security Act Detention Order, you will notice that two of the ‘charges’ are allegedly for ‘insulting Islam’. And the two articles where I was alleged to have insulted Islam are mentioned in the Detention Order.

Now, any primary school student with a fair command of the English language who reads those articles in question can tell you that they do not see in what way I have insulted Islam. But then the interpretation of those articles was done by Malays whose first language is Bahasa Malaysia and English is not one of their strong points.

In short, my argument is that those who had decided that I have insulted Islam do not comprehend English and therefore did not understand what they read.

In the event the Malaysian government does decide to apply to extradite me this is what we shall present to the British court and any English judge worth his salt would agree that what I wrote in no way insults Islam and those who allege that I did must be downright idiots. No British court would agree to hand me over to the Malaysian authorities to face a punishment of insulting Islam even if I did, what more when my articles would prove I did not.

I am actually quite keen to fight the appeal. As I said, if we win then it is good for the other Internal Security Act detainees who can use our precedence to also contest their detentions. And if we lose then the British government would be even more convinced that I should not be sent back to Malaysia for a fabricated crime of ‘insulting Islam’.

What happens if the government wins its appeal and they do not apply to extradite me? Well, would the Malaysian government not then look even more stupid than it already looks? If they have won their appeal against my release then why do nothing? Why not present the Detention Order to a British court and request the British court to order that I be detained and sent back to Malaysia?

If they do nothing then they will be admitting that my detention was frivolous and that they are not confident the British court would layan (entertain) them. If they try to enforce my detention without trial the British court would kick it out and, again, prove that my detention was frivolous. Damned if they do and damned if they don’t.

So let’s go for it. Take them on and make them eat humble pie.