Judge Syed Ahmad Helmy Syed Ahmad said that Raja Petra's detention was unconstitutional.
He said that the Home Minister had not followed the proper procedure under Section 8 of the ISA to issue the detention order against Raja Petra.
The judge also ordered that Raja Petra, editor of the popular 'Malaysia Today' website, be produced in court by 4pm today after which he should be immediately released.
Raja Petra is presently being held at the Kamunting detention centre in Perak.
"Now is about 10.30am, and I think there is enough time for Raja Petra to be released. I do not want this matter to be prolonged as the weekend starts tomorrow," said the judge.
"I thank the prosecution for their cooperation in handling this case and require your assistance to ensure that the order would be carried out," he added.
Senior Federal Counsel Abdul Wahab Mohammad said he would make the necessary arrangements by 4pm.
The release comes more than a month after Home Minister Syed Hamid Albar signed the ISA detention order on Sept 23, although Raja Petra was initially arrested under the Act on Sept 12 from his house in Sungai Buloh.
Reasons for the detention
Raja Petra, 58, named the Home Minister as the defendant in the habeas corpus application, which sought among others for his immediate release and an order that his detention under the ISA was unlawful.
The minister had stated three reasons for Raja Petra's detention:
* that he owns and operates the Malaysia Today website;
* publishing his articles and readers' comments intentionally and recklessly which were critical and insulted Muslims, affecting the purity of the religion and the personality of Prophet Muhammad; and
* publishing articles deemed defamatory or false concerning Malaysia's leaders, with the intention of undermining public confidence and inciting hatred against the government. The articles are alleged to be a threat to national security.
The said articles in questions were 'Malays, the Enemy of Islam', 'Let's send the Altantuya murderers to hell', 'I promise to be a good, non-hypocritical Muslim' and 'Not all Arabs are descendents of the Prophet'.
Raja Petra was represented was also represented by counsel Azhar zizan Harun, J Chandra and Ashok Kumar.
Raja Petra's wife Marina Lee Abdullah was also present to listen to the judgment which was delivered before a packed court room.
Marina was in tears and hugged her daughter when hearing the judge rdering the release.Raja Petra's supporters who were wearing black, yellow, green and orange t-shirts with the message 'No ISA' and 'Free RPK' clapped when the decision was made.
A procedural non-compliance
Syed Ahmad Helmy in his judgment said the court looked into two factors, namely the constitutionality of the ct and whether the home minister acted correctly within his jurisdiction to issue the order.
He said under Section 8(b) of the ISA indicated that those issued with he detention order by the minister may not be allowed for judicial review, however, the court could hear such an application if there were instances of possible abuse of powers.
"I agree the formulation of the ISA was to protect the security of the ation and is constitutional. However, the court could review the detention order if it found instances where the minister could have acted beyond his jurisdiction to issue the two-years' detention order."
Syed Ahmad Helmy said there was no relevance for the minister to issue the order on Raja Petra on the basis of mala fide.
"Following this, the court finds there is a procedural non-compliance as stated under Section 8(1) of the ISA based on the minister's ffidavit.
"Hence the court finds the minister had acted ultra vires (beyond the owers) in issuing the detention order under the ISA section. For example, the minister cannot issue an order if a person had in bad faith decided to colour his hair red."
"Following this, the court is allowing the plaintiff's application and order for his release," the judge said.
Raja Petra's lawyer Malik had during submissions before today's decision said the court had the jurisdiction to scrutinise the detention order if it was made in bad faith.
"This is not a situation like Jemaah Islamiyah or communists. This is just a man whom the government thinks can bring it down to its knees," the counsel said during submission.
Friday, 7 November 2008
Court orders Raja Petra's release - Malaysiakini
THE Shah Alam High Court today released Malaysia Today editor Raja Petra Kamaruddin from detention under the Internal Security Act (ISA) after allowing his application for a writ of habeas corpus. Malaysiakini has the (updated) report below.