In response to 'Judge's call to review ISA 'uncommon', says Rais' (June 3), I must say that we don't live in common times either!

In normal times when tranquility and happiness reign in the land, it is true, as what the Honorable Minister in the Prime Minister's Department Dr Rais Yatim's said, that the role of the judge is politically neutral and strictly confined to passive role of interpreting the laws as they are enacted by Parliament. If a judge were to recommend what laws are to be retained or what to be repealed, it would be a naked usurpation of the legislative function of Parliament.

But today is not 'normal times'. There is, rightly or wrongly, disquiet amongst the populace that executive expedience is placed in greater importance than their fundamental human rights.

This state was acceptable in feudal times when blind loyalty and absolute powers were given to leaders in exchange for protection. Nowadays the people are awakened that government should serve and account transparently to the people. It seems reasonable in these premises that the government should vest more importance to the people's constitutionally guaranteed liberties than its own expedience or convenience.

That's where the judge comes in. He has to be aware of, and reflect the changing expectations, impulses and norms of the society or otherwise he cannot make decisions of weighty public importance acceptable as fair and good to the public. If these expectations, impulses and norms shift from passive acquiescence of occasional abuses of human rights to an active demand for justice and intolerance of any form of abuse of human rights, then that is a paradigm shift that a good judge should feel the pulse and take cognizance.

Accordingly, his role in interpreting the law will shift from passive to active and expansive, and with justification too. This is because he is not just interpreting the provisions of a simple piece of law like Internal Security Act (ISA) in isolation but how it operates, as an anomaly, within the framework of a more important basic law - the Federal Constitution - that guarantees the citizenry various fundamental liberties, abridged by ISA.

Judges like politicians and legislators are under public pay role and ultimately have to account to the people that they are doing their job to the public benefit. In their job, therefore, they have to be fair to the executive, legislators but at the same time not forgetting to be fair as well to their primary constituents - the ordinary public and citizenry - who look to judges in times of social upheaval and tribulations for fairness and independence in judgment, to uphold the inviolability of constitution and stand as a bulwark between the State and any unconstitutional infringement of their fundamental liberties.

Being supposedly a specialist in the law, what is wrong then for a judge to express discomfit in a piece of legislation like the ISA, the enforcement of which contains no check and balance, and whether it has been abused or not, provokes a perennial suspicion that there is always an opportunity that it may be to the chagrin of the people (if their suspicions are right) and the chagrin of the government (if the suspicions are wrong)?

What the judge recommends is his point of view from the legal standpoint but it is not what the legislature or the executive, after hearing his views, is obliged to do. So what is the big deal especially when the thoughts expressed by the judge are quite the same as what the honorable minister expressed in his own article/paper [#3] 'Detention Without Trial: Has the time for abolition come?'[/#] - and the views expressed by the Human Rights Commission (Suhakam) as well as the views expressed by international bodies like Amnesty International?

In conclusion, the Executive has always justified the retention of ISA on grounds that Malaysian society has always been a hotbed of racial and religious sensitivities, vulnerable to mischievous provocation by extremist elements bent on disrupting peace and national security - that Malaysians enjoy the present stability and order by reason of wide executive powers in putting these disrupting elements away before they could accomplish their diabolical intentions and that prevention is always better than cure.

I am sure a lot of these contentions are valid. Communists, triad society members and religious extremists had been put away by the draconian laws without due process of laws and I am sure that if due process were allowed, some of these that had smart and slick lawyers would have escaped the dragnet by poking at the law enforcers' lack of evidence and continued to perpetrate harm.

So even if there are valid justifications for retaining the ISA, there is no reason however why for an important matter like curtailment of a subject's liberty and detaining him without trial for preventive purposes, the State's action ought to be beyond, and not subject to, judicial review with the accused being accorded the right to counsel in that process - unless it is to be inferred that the executive has no confidence in the judiciary's capability of giving the executive or the police a fair consideration of their case in prevention of harm to society.

This cannot be a tenable inference because judges are appointed by the King on the recommendation of the government, which undoubtedly has to make sure that judges are appointed on basis of competence and at least not unfair to the government's case.

The other point concerns the need to balance competing policy considerations in a civil society. Whilst preservation of the safety of society from harm that ISA supposedly secures is an important and necessary policy, the sanctity of the citizenry's constitutional liberties and the preservation of these from possible official abuse and infringement are no less equally important a policy consideration to maintain against backdrop of the people's rising aspirations and clamour for good and transparent governance.

And the only way a balance between the two competing policies may be struck is to allow a competent referee, the judge, to review the government's case. Like they say, if you don't trust your own judges on such issues of national security, who else can you trust?

The expression of opinion by Justice Mohd Hishamudin Mohd Yunus of the Shah Alam (that the ISA should be amended) then must be evaluated in the context of the above considerations and the uncommon, or rather, changed times that we presently live in.