Deputy Prime Minister Abdullah Ahmad Badawi, who is also home minister, is throwing the executive headlong down the slippery slope of executive anarchy with the re-arrest of alleged militant Nasaruddin Nasir. This came just a day after the Shah Alam High Court ruled that Nasaruddin's detention under the Internal Security Act (ISA) was unlawful.

If we are not at all disconcerted by the continued detention, since April 10, 2001, of the ISA Reformasi 6 by the Home Minister despite the Sept 6 ruling of the Federal Court that their arrest was unlawful, we must really sit up on this one. The next time around, it could be you and I.

Nasaruddin Nasir, 45, was detained on April 13 this year for alleged involvement with the Kumpulan Militan Malaysia (KMM). KMM was first introduced by IGP, Norian Mai as Kumpulan Mujahidin Malaysia last year.

The police chief obviously had not quite understood the import of a mujahid (one who fights oppression; freedom fighter) and a terrorist. The government has finally settled on the word, 'militant' over mujahidin or terrorist, as 'terrorist' would inevitably include us in the Bush axis of so-and-so.

The court in Nasaruddin's case went a step further than the Sept 6 Federal Court decision in applying the only logical legal conclusion that can be arrived at, once the initial arrest is struck down.

Order to detain 'poisoned'

Justice Suriyadi Halim Omar sitting in Shah Alam, held that the police had failed to bring evidence that the ISA detainee was involved in any terrorist activities. The allegations of the police and home minister remain as that allegations. There is no case. Consequently, the first 60-day detention (allegedly for investigations) is also unlawful.

The June 12 order to further detain Nasaruddin cannot stand alone. It is rooted in the initial April 13 mala fide arrest this year. As lawyers are wont to say, it is the same fruit of the poisoned tree.

The home minister's decision to re-arrest Nasaruddun is ill-advised. Malaysia subscribes to a system of limited government in which the judiciary has a constitutional role to check the excesses of the executive and parliament.

The term, 'limited government', means that, the government's powers derived from the law, are, or should be used in such a way that what it does, and how it does it, respects certain values.

The freedom of the individual from arbitrary arrest and detention is a value protected by all universal instruments on civil and political rights and is included in Part II of the Federal Constitution.

If the individual is to be denied his liberty there must be cogent reasons which should stand up to scrutiny of the judiciary which is empowered to be the arbiter of ministerial action.

Ineffective Parliament

The prime minister and his cabinet (the executive) owe a duty of ministerial responsibility to Parliament. The doctrine of ministerial responsibility acts as another check on ministerial excesses.

However in a situation where Parliament has remained ineffective in checking a runaway executive, the last bastion to protect the civil liberties of the individual must rest with the judiciary.

One needs to recall that only several weeks ago the Speaker was reported to have said that the government in power can do anything it wants and there is really no need to consult anybody. The statement was made in relation to the extension of the Parliament building and it sadly reflects the inability to understand the role of Parliament in a system of limited government. The people's representatives are considered as mere lackeys to the executive. The rule is not that the government is to be accountable to itself, it must be accountable to the people.

The Shah Alam High Court on Nov 8 found that the executive through the office of the home minister had deprived a citizen of his liberty by arresting and detaining him without justification.

Arbitrary action corrected

The court's ruling in other words, had found that the executive had acted in an unconstitutional and arbitrary manner. The court has however, restored the balance by correcting the action of the home minister and ruling on the executive action as unlawful.

As a result of this arbitrary ministerial action, Nasaruddin had to suffer almost half a year in detention, deprived of the company and solace of his family and friends.

It is unclear from reports as to why the court did not order his release. The Shah Alam High Court already has a clear precedent last year in the case of N Gobalakrishnan and Abdul Ghani Haroon where counsel Malik Imtiaz Sarwar's request that the two be brought to court for immediate release was granted when the court ruled that their arrest was unlawful.

The fact still remains that the executive is stubborn in the face of judicial pronouncement.

Abdullah, by ordering a re-arrest, has put his office, which he holds in the name of the people, in jeopardy. He has defied the trust placed by the people and the constitution by thwarting the judicial decree. He has again not done the right thing. He had went ahead to order a re-arrest instead of filing an appeal against the decision of the High Court.

'Laissez-faire' attitude

This has serious implications. It could mean many things. However, one is drawn to the irresistible inference that the present government (executive) has no confidence in the judiciary in fulfilling its constitutional role.

The minister in the Prime Minister's department, Dr Rais Yatim, may easily invite contempt when alluding to judicial scrutiny of preventive detention as " laissez-faire " in recent interviews after the Shah Alam High Court ruling on Nov. 8.

Rais entertains the opinion that such a " laissez-faire attitude in security matters" provides the rationale as to why the executive would push through a law to keep matters of "state security" (as reported by AFP on Nov 10) out of the purview of our courts.

Recent reports of this executive scheme to amend the ISA suggest, among others, that police investigations would be classified as official secrets.

Somewhere in these executive musings to block judicial scrutiny of ministerial action, in the name of national security, Rais has misinformed us on the powers of the home minister and police. Assuredly, both have powers under the constitution and lesser laws.

Law subversive to democracy

However, the home minister and the government he belongs to are not above the law and any exercise of their powers must be with constitutional propriety and restraint. It is clearly wrong for any government to enact any law subversive of the democratic basis of the constitution.

The affidavits of the five reformasi detainees filed in their habeas corpus applications showed that police questioning was not related to any national security issue. Police investigations centred around the political affiliations of the detainees and in several cases, their sexual lives.

This in fact prompted the Shah Alam High Court judge, Justice Mohd Hishamuddin Mohd Yunus to release Gobalakrishnan and Abdul Ghani in 2001 and on Sept 6 this year, the Federal Court to rule on the illegality of the arrest of the reformasi activists.

If Rais were to have his way, police interrogation for the first 60 days under the ISA would be deemed "official secrets". The executive could, as the saying goes, get away with murder in the name of national security.

When a government increasingly uses power and law for partisan ends and casually disregards the legal framework for and the legal controls on the exercise of power, this betrays a contempt for or an impatience with limited government. It also mirrors a belief that the rightness of the policies to be executed excuses or justifies the methods whereby they are executed. (McAuslan and McEldowney (eds) Law, Legitimacy and the Constitution . 1985).

But surely not in our name.

SALBIAH AHMAD is a lawyer and an independent researcher. MALAYA! as the name for this column was inspired by the meaning of "Malaya" in Tagalog which means freedom. The events at the end of 1998 in KL offer a new inspiration. MALAYA! takes on the process of reclaiming the many facets of independence.