Double Jeopardy and no political or Judical Justice. Minority and human rights lawyer inthe dock even after 14 months of ISA imprisonment without trial and continuingindefinitely thereafter - P. Uthayakumar, Kemta Prison, Kemunting @ Malaysia ’sGuantanamo Bay (3/2/2009).

Intoduction

 A law school in England from 1984 onwards, I was taught that Article 8 of the Federal Constitution in

tandem with fundamental and Universal Human Rights Principles, guarantees equality and equal

opportunities before the law and especially so prohibiting institutional racial and religious discrimination. I

genuinely believed in these ideals. But what I did not realise was that under the UMNO controlled

Malaysian government, Article 8 was meant to be more for decoration or puppet shadow play “wayang

kulit”. UMNO never seriously intended Article 8 to be put into practice especially so when it concerned the

approximately 99% of the poor and underprivileged third, fourth, fifth and even sixth generation Malaysian

born Indians.

 

Long walk for justice

 

Having developed these ideals of justice during my student days I began the long walk for Justice from

about the time I had started reading in chambers some eighteen years ago, mostly under the Police watch

NGO banner and with just a handful of volunteers . For the first ten years or so of my legal practice and

legal and especially Indian minority rights activism the UMNO controlled Malaysian authorities generally

left us alone because they may have deemed our struggle. ‘a cry in the wilderness’. After the first ten years

of “pioneer status” from 2003 onwards was arrested, detained and charged for criminal intimidation of a

police Chief Inspector during court proceedings and the last being for two sedition charges and a few more

in the pipeline. This my final arrest under the ISA was the tenth arrest effected on me.

 

UMNO “put me to sleep”

 

But when the banks unexpectedly and unprecedentedly burst with the about 100,000 People Power

Makkal sakthi Hindraf Rally on the 25 th day of November 2007, UMNO to teach me and the Indians a

lesson never ever again to question the UMNO master (tuan) opted for “Summary Justice” and “put me to

sleep” with effect from the 13th day of December 2007. By imprisoning me and the three other Hindraf 

lawyers without trial for two years and continuing indefinitely thereafter under the draconian Internal

Security Act (ISA) at the Kemta maximum Security Prison, Kemunting @ Malaysia ‘s Guantanamo Bay .

 

ISA originally meant to fight organised violence

 

  The drafter of the ISA the late Professor R.H.Hickling in an interview in the New Sunday Times of 

30/7/2006 had said that “the (ISA) Act was only intended against communist insurgents and those bent

on your armed struggle Heckling further said that the ISA was being used against people for whom it was

not intended” “it was designed to be more limited in it’s scope than it is at the moment”. Organised

violence is the key to this preamble, but a lot of people who had nothing to do with organized violence at all

 were arrested” (and detained under ISA). “ I would want judicial review at all times”. “But the Malaysian

Courts almost always” has had the interest of the government alone above everything else” and does not

follow the law. ( Internal Security Act ) In short we had been arrested and detained without trial under the

ISA in just because I had led/ organised a successful peaceful 100,000 people Hindraf Rally which right is

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given to me by virtue of Article 10 of the Federal constitution which guarantees the Right to Assemble

Peacefully without arms and having championed equality and equal opportunities . But UMNO follows

neither the law nor has any respect for in particular Article 5 ( Liberty of the person ) Articles 8 and 10 of 

the Federal Constitution. But to justify this our ISA arrest and detention UMNO without any basis at all

 whatsoever and in a vacuum linked us to the LTTE terrorist organisation. But our hundreds of letters,

memorandums etc running into thousands of pages and addressed to the Malaysian authorities proves our

peaceful, lawful, constitutional, legitimate and non violent struggle. (A simple Google search would reveal

all these assertions).Terrorists use the butt of their guns and not the nip of their pens. When I filed an RM

100 million civil suit against Attorney General, Inspector General and the UMNO controlled Malaysian

government for this LTTE link, allegation, without even having the guts to file in their Statement of Defence

and outliving their evidence of our alleged LTTE links, have applied to strike out my civil suit. Based on

many almost similar cases these authorities usually succeed before the Malaysian Courts. How else then

do I clear my name with having links with the LTTE ?

 

“Ethnic Cleansing”

 

Having picked up more and more courage gradually over the years, in the year 2001 I had taken up my

struggle to a higher level by championing the cause of Kampong Medan “ethnic cleansing” case where the

Indians were specifically targeted, slashed and killed for fifteen days in a row with effect from the 8 th day of 

March 2001 to the 23rd day of March 2001 Five Indians were mercilessly killed and about 100 others were

inflicted with grievous bodily injuries. This is the worst case of Human Rights violations in the history of 

Malaysia but like almost all other injustices concerning the Indians in this country this tragedy received

the least attention even by the Malaysian opposition parties, almost all NGOs’, civil society and the print

and electronic media and not in accordance with it’s gravity and seriousness. This “ethnic cleansing”

exposure to the British Prime Minister Gordon Brown and the Commonwealth Heads of Government

Meeting in Harare on the 24th day of November 2007 and the other of UMNO’S atrocities especially against

the Indians found anger in UMNO and thus this malicious and vindictive criminal prosecution for sedition

before the Kuala Lumpur Sessions Court today. This sedition prosecution is politically motivated and

UMNO has no shame about it.

 

Death in Police Custody – Approximately 90% Indians

 

In 2003, the incidences of death / killings in police custody shot up to about one in every two weeks. The

instances of police shooting dead mere suspects shot up to about 1.3 persons every week. Based on the

latest count it is estimated that up to about 90% (60% in 2003 as per our Memorandum to the Police Royal

Commission dated 4/3/04) of the Malaysian victims there to are the Indians with the latest killing in their

police custody being that of A.Kugan (22).The Attorney General after the Indians public pressure has

unprecedentedly acknowledged and classified as a murder case. The record otherwise stands that there

has been zero prosecution of even a single police man for murder in a killing in a police lock up case

pursuant to section 302 of the Penal Code. But the criminal police in Kugan’s case are still on the loose on

desk jobs. They have not been detained and locked up like any other murder suspect? Why? Is Malaysia a

Police State or are the police above the law mindset allowed to Prevail. The new PKR Selangor State

Government revealed at the Selangor state Assembly on 29/10/08 that from 2004 to 2007, 96 Hindu

temples had been demolished in the state of Selangor alone (Tamil Nesan 30/10/08 page 2). From this we

estimate that an average one Hindu temple is being demolished in Malaysia every week. The segregation of 

the Indians from the national mainstream development of Malaysia and the denial of equal opportunities

thereto on a day to day basis right from the Development Programmes for the hardcore poor to

kindergardens, Tamil schools, skills training institutions, fully residential secondary schools, fully

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residential science colleges institutions of Higher Learning, Universities, scholarships, job opportunities in

the public and private sectors, banks and government agency business loan, business opportunities,

licenses, permits, and right up to the multimillion and billion Ringgit Malaysia worth of government

projects and mega projects and contracts. All the above collectively if not the Kampong Medan tragedy on

it’s own alone amounts to “ethnic cleansing”

 

Double Jeopardy

 

But having already punished me with fourteen months of imprisonment also for the aforesaid “ethnic

cleansing” allegations as per the charges laid out in my ISA charge sheet , I am now being subject to

double jeopardy by this continued criminal prosecution before this court today. I am in the dock today for

having championed the aforesaid Indian minority and human rights concerns which in UMNOs’ Malaysia

conveniently and politically motivated and for their continued political survival has been classified as a

crime, a threat to National Security and public order warranting our imprisonment under the ISA without

trial and without the due process of the law.

 

“Boot Camp” for judges

 

What justice can I expect from the Malaysian Courts when the most senior of the 48 High Court Judges

 were sent to the “boot camp” with selected judges and judicial officers “to indoctrinate” those attending to

hold the view that the governments’ interest was “ more important than all else when we are considering

our judgments (NST 11-6-08 at Page 6). This said High Court Judge has since resigned shortly thereafter.

Be that as it may I would expect this sessions court to allow me to tender and to refer without obstruction

also from the Deputy Public Prosecutor the hundreds of the aforesaid letters, memorandums, gory

photographs of the “ethnic cleansing” etc running into thousands of pages.. Justice must not only be done

but must manifestly and undoubtedly be seen to be done.

 

Only Seven Political Detainees under Pak Lah’s Regime

 

 Throughout Abdullah Badawi’s five year term as Prime Minister the only political detainees imprisoned

under the ISA has been Sin Chew Daily’s Tan, DAP Member of Parliament Teresa Kok and blogger Raja

Petra Kamaruddin besides the four HINDRAF lawyers of up to seventeen years standing as legal

practitioners. However because of the socio political and public pressure on UMNO and the courts, Tan

 was released within eighteen hours, Teresa Kok within five days both by UMNOs’ Home Minister. Raja

Petra Kamaruddin was set free by the Shah Alam High Court within fifty-five days. But when comes to the

Indian HINDRAF lawyers cum ISA political prisoners, a different set of rule applies. These HINDRAF

lawyers have been detained for about fourteen (14) months now but neither the Home Minister nor the

courts have set us free as was done to Tan, Teresa Kok and Raja Petra. The political reality is because of 

the strong Chinese and Malay public and political pressure, UMNO and the Malaysian Courts may have set

free Tan, Teresa Kok and Raja Petra because they belong to majority and economically powerful

community who would have some bearing on their communities vis a vis, the political landscape of 

Malaysia and UMNOs’ continued political survival. But when it concerned the Indian HINDRAF lawyers the

very same public and political pressure on UMNO or the courts have no or very little bearing because the

Indians in Malaysia are a politically and economically weak and insignificant community. Even the only

Chinese non political ISA detainee was “abruptly” and “prematurely” released early last month just before

the Kuala Terengganu by elections to fish Chinese votes and to do damage control after ex ISA detainees

 Teresa Kok, Raja Petra and Hishamuddin Rais’ Campaign in Kula Terengganu. On my part I have made

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three (3) Habeas Corpus applications before three High Court Judges and one appeal to the Supreme Court

but to no avail. When justice is not seen to be done to even lawyers, what justice can the common man

expect?

 

Silent heart attack and deteriorating health

 

 Throughout these fourteen (14) months of my imprisonment under the ISA my health condition has

deteriorated. Sometime on or about January 2008 I believe I had suffered a silent heart attack at a time

 when I was denied my diabetic medication. The Specialist Consultant Physician and all the other doctors

 who had attended to me when I was admitted to the Taiping General Hospital in January 2008 had not

disclosed to me my heart condition that was hypo kinetic after an ECG examination was conducted. My

blood test had also revealed an excessive level of keystones which could have triggered a heart attack. It

 was only during my second admission at the Taiping General Hospital in April 2008 that this hypo kinetic

condition was “leaked” to me by another sympathetic hospital personnel. I urgently need specialist Cardiac

care and attention from a reputable Hospital but the UMNO Government deliberately deny me despite an

emotional plea by my mother to the Prime Minister at his offices in Putrajaya. In prison I have contracted

two kinds of skin diseases namely allergy and idiopathic gutted hypomelanosis. My pre existing diabetes

and after having been a diabetic patient for about fourteen years and which had got worse with sugar being

added to my food from time to time and diabetic diet not served to me right up to this day despite having

lodged numerous formal, verbal and written complaints to the Kemta Prison Directors, Home Minister and

even the ISA Advisory Board. I have also been diagnosed as a high blood pressure patient. Having been

forced to sleep on a one inch thin foam mattress on a cement floor, I have developed arthritis in both my

knees and lumbar spondalysis to my backbone. This lumber spondalysis condition was also never

disclosed to me by the Orthopedic Surgeon and I had only learnt of the same when I was perusing an

Affidavit of the Consultant Physician. I believe my eye sight may also have been affected because of my

 worsening diabetic condition. My request to be examined by an eye specialist was denied. When this matter

attracted media attention, the Malaysian Human Rights Commission (Suhakam) conducted a so called

“Inquiry” at Kemta Prison. The relevant government hospital Specialist, Director, doctors, prison personnel,

police special branch and just about everyone else was interviewed except myself. An Indian Suhakam

Commissioner was hurriedly dispatched by UMNO to call for a press conference and cleared the Taiping

General Hospital , prison and police special branch of any wrongdoings. This is how Justice and Human

Rights is upheld in Malaysia – without giving me a hearing!. In the last two months (the latest is) corn

having developed on both my leg toes. The tip of my right leg toe has lost it’s sense of touch. Which I

suspect may be the beginning of a possible diabetic gangrene which can lead to a leg amputation. My gums

are also infected and swollen, being consistent with worsening diabetes.

 

Independence of government hospital compromised

 

 The aforesaid difficulties with the Taiping government general hospital Specialists and doctors is I believe

because of the police special branch and the prison authorities’ interference and having caused the

independence of these medical doctors and specialists to be compromised. I have applied for my medical

reports, medical notes, and medical test results from the Taiping General Hospital the Prison authorities

and the Home Minister. They all have refused to furnish me the same and neither was the same exhibited

in the High Court proceedings that. I had filed and despite me specially challenging for the same to be

exhibited. This government hospital and police collusion experiences I have seen happening to my clients

in my eighteen years of legal practice especially so in the scores of death/ killing in police custody cases,

shooting, dead by police and other police beating up and torture cases that I have attended to. But little did

I realise that I myself would become a victim one day! The latest example is that of A. Kugan (22) whose

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post mortem report did a Taiping general hospital style cover up for the police by stating the cause of 

Kugan’s death as lung congestion when even the Attorney General subsequently under public pressure had

reclassified the case as murder based on the very badly bruised body of Kugan which was exposed by the

people power Hindraf Makkal Sakthi forces to the media and on the internet. They had succeed in beating

the police before they could do a full scale police cover up. Thus the Inspector General of police and the

UMNO Home Minister’s anger.

 

Prison protest – refusing medical treatment

 

As a mark of protest and in furthertherance also of my struggle against the interference with and

compromising the government hospital doctors and specialist in my case and scores of previous cases like

Kugen, I had with effect from July 2008 to date refused to be treated by any of these government hospital

doctors and specialist whose professionalism I would have no reason to doubt had I been treated by them

in a non prisoner to doctor capacity. I am prepared for the worst and as matter of principle. I was mentally

prepared when I started this struggle and remain as strong as ever because I believe in justice. When these

doctors and specialist had refused to exhibit their medical and specialist reports, medical notes, and tests

thereto I had created a doubt. But even the learned High Court Judge did not give me the benefit of at least

this doubt and had refused to set me free on medical grounds at least if not judicial grounds which would

have enabled me to receive independent medical treatment overseas. Independent Judiciary!

 

No regrets – and the struggle continues.

 

But I have no regrets in this my struggle for equality, equal opportunities, equal justice and towards a non

racial and religious discriminatory Malaysia especially so for the ethnic minority Malaysian Indian

community who are suffering from the worst forms of atrocities under the UMNO controlled Malaysian

government regime. I am aware that UMNO can imprison me as long as they like, in fact technically for the

 whole of my natural life if they want to. But irrespective of my imprisonment the HINDRAF people power

Makkal Sakthi struggle for justice, peace and equality and equal opportunities and prosperity mutual

respect, co-existence and dignity will go on under the leadership of HINDRAF chairman P. Waytha

Moorthy. I am delighted to note that the Hindraf people power Makkal Sakthi forces are no longer

frightened of UMNO, their police force, army, Attorney General UMNO abusing the Malaysian Judiciary for

their continued political survival. The latest case in point is the struggle for justice for A.Kugan which is

Res Ipsa loquteor (the facts speak for itself). I have no regrets in this my HINDRAF people power Makkal

Sakthi struggle. As a lawyer in particular, I stand for justice, fair play and equity.

 

Appeal to Court

 

Wherefore in the circumstances, I hereby pray that: -

 1)   The sedition charges against me be dismissed on the grounds of the same being groundless

further to section 173 (g) of the Criminal Procedure Code. 2)  I, Uthayakumar S/O Ponnusamy hereby be set free by virtue of the courts inherent jurisdiction. 3)  Such other reliefs deemed fit by this Honorable Court. 

 Thank you

Uthayakumar Ponnusamy – 3/2/2009 

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