Former attorney-general, now Suhakam chief, Abu Talib Othman airs his views o­n the state of the judiciary and defends his previous role as chief prosecutor for the controversial ISA crackdown in 1987.

Malaysiakini: Suhakam (this month) came up with an Internal Security Act (ISA) law review document. What happens next?

Abu Talib:

That was a momentous task. We have completed a review of the ISA and we have submitted it to the Home Affairs Ministry. Insofar as legislation is concerned, we are o­nly able to play an advisory role.

We have advised them o­n the implications of the use of the ISA which in many instances have been alleged to violate the fundamental principles of human rights. What the government is going to do next is entirely up to the government.

What happened when you met with Deputy Prime Minister Abdullah Ahmad Badawi o­n this issue?

We met with the DPM while we were going through the review process as well as during the inquiry into the conditions of detention under ISA. He is very concerned about the allegations because he is equally conscious of the need to respect human rights. He said he would wait for our recommendations. We have not heard anything so far.

What do you think are the chances for Suhakam's recommendations to be adopted?

It is difficult for me to speculate o­n the government's views. Of late, they have used the Sept 11 incident to somewhat legitimise the continued use of the ISA to ensure peace and security in the country.

We have recommended for the abolition of the ISA and for it to be substituted with a new law where there is a schedule which indicates the types of offences which are in need of this preventive action.

Some human rights organisations are not happy with this as they feel the government should not be allowed to take pre-emptive actions. Do you think it is a realistic possibility considering that every government in the world wants such a safeguard?

In my view, it is very unlikely that the government will agree for there to be no provisions for preventive detention. Even human rights (principles) recognise this need but in cases of extreme emergency where the security of the country and the people are at risk.

But there must be safeguards to ensure that the rights of detainees are protected. Authorities have to achieve their objective of maintaining law and order but not at the expense of human rights.

You were o­nce the AG. Don't you think the detention without charge provision works very much to the advantage of the prosecution? The law was very useful in cases where there were insufficient materials to charge a person.

I am not speaking o­n what is happening today. I have retired some 10 years ago but during my time, the public prosecutor played a leading role in determining whether a person should be detained or not.

You do not think that is the case now?

I do not know. It is not for me to comment.

But you were also responsible for recommending for detention of individuals during the 1987 Operasi Lalang.

I personally argued for it. Yes, I recognised that. But we presented the evidence.

You had the evidence?

Oh yes. Certainly we had evidence to justify those detentions and consequently the country was spared of another likely racial problem.

Do you have any comments o­n (jailed ex-deputy premier) Anwar Ibrahim's appeal?

In our view, it is particularly important to ensure that administration of justice is fair and with (legal) safeguards including mechanisms to ensure accountability. Actions taken against a criminal may lead to various violations against human rights.

As far as the court is concerned, I think it is very important that (judges) conduct themselves in such a way as to enhance public confidence in the administration of justice. There cannot be two clearly different decisions o­n a similar case.

We hope to be able to debate among ourselves as to the manner that the court conducted itself as a whole. There have been complaints of unnecessary and undue delays in the hearing of cases. In some instances, cases are fixed so very quickly but in some cases, God o­nly knows when they might be fixed for hearing.

We hope that the court will address all these matters. While deliberating o­n the conduct of the court, we are not unmindful of the weapon in the hands of the court such as contempt of court proceedings. So we have to be very, very careful in looking or addressing complaints made against the courts.

But there were a couple of things which did not appear to be regular procedures. For instance, no grounds were given for the decision and the judges revoked bail for (Anwar's co-accused) Sukma Darmawan in the absence of an application by the prosecution. Why are judges taking it upon themselves to do this?

It is very important that the court must be transparent and give reasons for their decisions in matters particularly involving public interest. For these judges, I think they should examine themselves and be sure that justice is not o­nly done but seen to be done in all cases.

In the past when you were still AG, was it normal for judges not to give reasons for their decisions?

For cases involving public interest, I had occasion to raise it in a trial. I had told the court straight that it owed a duty to the public to give its reasons for decisions. I had said this when I appeared before the Court of Appeal. The bench was chaired back then by the late Tun Suffian (Hashim) and he agreed.

In those days, we very seldom have judges not writing judgements and not giving reasons for their decisions. Today, I am sorry to say that it would appear to be the fashion (to do so). So I think the new chief justice (Ahmad Fairuz Sheikh Abdul Halim) should look into the performance of the judges.

Since your retirement, do you think the judiciary has improved or become worse?

It is a difficult question to answer because we do not know what are the problems they face. We can o­nly hope that they will improve.

On the first day of appointment, the new CJs make a lot of statements (on ways) to improve the judiciary such as cutting down waiting time (for cases to be heard) and for judges to write their judgements.

But after they are appointed, things go by as they did before. Now we hear the new CJ also making statements to improve the judiciary. (Ahmad Fairuz had pledged to free the judiciary of corrupt judges o­n his appointment to the CJ post o­n March 17)

We hope it will happen because the judiciary is a very important institution where we seek remedies against any omission. It is important that they must conduct themselves in a way that enhances public confidence.