A Heroic Court Decrees The Importance of Due Process

The necessity of the rule of law and its absence in Donald Trump’s USA

The late Eusoffe Abdoolcader

On September 20, 1986, my Asian Wall Street Journal colleague Raphael Pura and I were abruptly ordered expelled from Malaysia by then Prime Minister Mahathir Mohamad personally, after we had written stories describing endemic corruption that infuriated him. Pura happened to be out of the country at that point on assignment, but I was there to become an international incident of the worst kind, summarily given 48 hours to get out with my family, later extended to 76. I retreated to Hong Kong while my wife and 13-year-old son were given time to pick up the flotsam and jetsam of our belongings in a country that we loved and had been forced out of.

If this sounds familiar, it should, with immigration departments in many countries, but particularly the US with its brutal Immigration and Customs Enforcement, or ICE, dragging people out of supermarkets and homes and deporting them to countries where they have never even been, sadly including US passport-holding children and green card student scholars who dared to express outrage at the Israeli slaughter of Gaza residents.

Mahathir said ‘get the hook’

Dow stands up

In my case, in 1986, Dow Jones was there and didn’t cave in. The company, the Wall Street Journal’s parent, instead rolled out the heavy artillery, including hiring two of the most prominent freedom-of-information Queen’s Counsels in London, the late Louis Blom-Cooper and Geoffrey Robertson, as well as Robert D. Sack of Gibson, Dunn & Crutcher, one of the US’s most prominent press law specialists, who later became a federal circuit judge, to argue our case that we had been expelled without being given a chance to defend ourselves.

We lost at the trial and appellate levels. But what happened at the Federal Court, the nation’s highest, shocked the country. In a unanimous opinion written by Justice Eusoffe Abdoolcader, the court summarily ruled that expelling me without due process was unlawful. My right to work was restored without prejudice. The government requested my passport and, in pen and ink, famously and embarrassingly wrote an order rescinding the expulsion across my work visa.

In its ruling, the Federal Court stated that: “the appellant was so circumstanced in relation to the action of the (government, referred to as the first respondent) as to be entitled to the observance of the rules of natural justice. Whatever the grounds upon which the first respondent proceeding, the appellant might in addition to attacking those grounds, also desire to refer to any matter of special hardship which the cancellation of his employment pass would impose upon him and he should have been invited to do so. If having done all this, the first respondent then gives consideration to appellant's representations, the requirements of natural justice will have been satisfied and it would be for the first respondent to make his decision whether or not to cancel the employment pass in the exercise of the discretion conferred upon him by regulation 19 of the Immigration Regulations.

“In this case, as the appellant was not afforded an opportunity to be heard before the cancellation of his employment pass, certiorari must go to quash the said cancellation.”

Those words ‘quash the said cancellation’ apparently so embarrassed the Malaysian government that it didn’t appeal the case to the Privy Council, which serves as the final court of appeal for the ever-shrinking crown dependencies, British overseas territories, and the Commonwealth countries that have retained a final appeal to the Crown.

Consequently, “J.P. Berthelsen vs. Director of Immigration, Malaysia et ORS” passed into Commonwealth law and has been frequently cited to protect those throughout the Commonwealth who have been expelled without due process. The court, according to an analysis of the case, “adopted Lord Denning’s view … that an administrative body is bound to give a person affected by its decision an opportunity of making representation if they are lacking any right or interest that person possesses a legitimate expectation or right to stay in the country.”

As a journalist, I have sat in other courtrooms in other countries to hear defendants’ lawyers intone: “M’lud, in Berthelsen vs. Director of Immigration of Malaysia…etc etc” in defense of any manner of other cases beyond just immigration where a hearing before a government might be necessary in the pursuit of justice. The principle is clear: a government can’t trample on your rights, no matter who you are, without giving you the opportunity to defend yourself.

To anyone who thinks being a resident journalist being expelled from a country for writing stories critical of the government is heroic or daring and good for stories later at the Foreign Correspondents Club bar over a gin fizz, it is a harrowing experience. My then-wife, just getting restarted as a photojournalist after leaving a successful career in the US, was forced to start again in another country. My 13-year-old son, popular in school, was furious, asking me, “Why can’t you write like they do at The Star?” a local tabloid.

We had to leave behind a beloved spaniel because of restrictive quarantine rules in Hong Kong, to where we were bound temporarily while The Journal found a place to move me to, and the dog died in a friend’s care, traumatizing our friend. Cars had to be sold, a household uprooted and packed by movers, then life restarted temporarily only to be restarted a few months later when I received a new posting from the newspaper.

We were supported magnificently by Dow Jones & Company, which defended us in court, arranged for the removal of our belongings, sold the cars, and set us up in a new location before they moved us again to the new posting. Our life resumed although my wife’s career was crippled along with my son’s education, however temporarily.

Now imagine being a luckless Hispanic migrant in, say, Colorado, a migrant mistaken for a gang member despite having a green card, a job and a wife and children, who is suddenly taken off the street, shoved onto an airplane for El Salvador, his head shaved, his possessions taken, and with his family having no idea where he is – and no resources ever to put them back together – ever.

De-immigrating next

And no legal representation at all, let alone by two of London’s most illustrious silks and a prominent US press law specialist.

I know Commonwealth law has no bearing on US law. But I am a prideful and successful plaintiff and the fact that a supreme court in a putatively third-world country stood up to its government to say ‘No, even noncitizens have rights to be heard,’ and the government acquiesced, especially in defense of an independent press, even almost 40 years later, fills me with pride, as it should most Malaysians, and should be a lesson for Americans, whose courts are under onslaught all the way to the nation’s highest tribunal.

The case “captures the irony that the rules of natural justice are so foreign to Trump that the decent people of America’s closest allies – Canada and Australia – revolt against local politicians who want to imitate him,” Robertson said in an email. “Your case became a precedent, but Bob Sack, now a Federal Appeals judge, and I could never have imagined at the time that it would ever be needed as a precedent in the United States.”

Sadly, in Asia, the upshot of my case was that it was one of the important rulings by the court that exasperated Mahathir Mohamad, and after a couple more decisions that went against him, he fired the chief justice, Mohamed Salleh Abas, and most of the court, much to the detriment of the country’s reputation. It wasn’t until Abdullah Ahmad Badawi became prime minister in 2003, 17 years later, that the court’s independence was restored.

There might be a coda. Mahathir, after he was out of power, and former Prime Minister Najib Razak was running wild in unprecedented corruption, was instrumental in a campaign to oust Najib from office. One would like to think that in that campaign he began to see the value of an independent press that he had kicked out, and an independent court that succeeded the tame one he appointed, which put Najib in prison and resisted pressure to free him, all the way up to the federal court. I attempted to ask him that, but his staff never gave me a chance for an interview. He will turn 100 years of age in July, so there is still a chance.