When the Anwar Ibrahim affair first broke in 1998, I lamented the fact that if someone of his stature could be treated so badly by the police, the rights of the average citizen were put into serious question. Anwar's act of suing the government vindicates his rights and symbolises a broader vindication of the rights of all legal subjects.

Although Anwar brought a civil suit, his case is also about how the state should treat legal subjects. The beating of Anwar is a gross failure of the rule of law because it fails the Constitution and the ISA as well as regular criminal law.

I will focus on the first two types of failures because the third has already been dealt with by our courts with respect to Rahim Noor's violations of the Penal Code. I want to briefly explore the public law dimensions of principle of Anwar's position because it more explicitly brings out the general significance of Anwar's case for the rest of us.

The Constitution is unequivocal that such abuse is unlawful. All legal subjects are entitled to the protection of their right to life, liberty and due process under Article 5. That article affirms the principle that the state cannot act in a way that is detrimental to a person's freedom, which paradigmatically includes their physical being, without adequate legal justification ('the liberty principle'). The liberty principle, as I have stated it, may be abstract but it plainly excludes beatings or torture.

The argument from the ISA, however, is subject to a major proviso. I recently argued in a letter published here that the ISA isn't a valid law. I maintain this view and hope that our courts will be brave enough to recognise this point. So what I'm about to say works on the assumption that the ISA is a valid law, an assumption demanded by the fact that our government and our courts continue to use the legislation. But I wish to be clear that this is merely an assumption because the ISA, correctly speaking, isn't valid.

A careful reading of the legislation shows that it does not grant a wholly arbitrary power of detention either to the police or the home minister. The ISA is enacted under the rubric of Article 149 which permits special anti-subversion legislation that is 'inconsistent' with Article 5.

The effect of Article 149 is that the liberty principle I mentioned above, applies in a more limited way in the context of the ISA. Thus full blown due process rights such as the right to be brought before a magistrate upon arrest might not apply where police detention under the ISA is concerned. Any genuine interpretation of the ISA must recognise this cost. But simply because some rights recognised under Article 5 which are specific instantiations of the liberty principle are inapplicable does not mean that the broader liberty principle in general has no application to the ISA.

In fact, the ISA instantiates the liberty principle in its own way because the legislation is clear that the police do not have a free hand to treat detainees as they like even if Article 5 is limited. The ISA creates a system of internal checks for the police which require consistent review by police officers of increasing rank as the detention progresses.

The point of these checks is to reflect that any cost to liberty is serious and must be monitored such that the ISA is itself cognisant of the liberty principle. These checks are a safeguard against just the sort of abuse that befell Anwar. From this perspective, the beating of Anwar is a departure even from the ISA itself.

In a way, it is a shame that Anwar's claim has been settled silently out of court in a private law action. We've missed out on a chance for our judges to articulate the full dimensions of legal and moral principle at stake in justifying his claims. Nevertheless, Anwar's success remains a powerful symbol of the rule of law because of the principles surrounding the recognition that he was legally wronged.