The Kuala Lumpur Federal Court today allowed an appeal brought by five reformasi leaders that their detention by the police in their first 60 days under the Internal Security Act (ISA) was unlawful.

The four-member Federal Court panel Chief Justice Mohamed Dzaiddin Abdullah, Chief Judge of the High Courts of Sabah and Sarawak Steve Shim, Justice Siti Norma Yaakob and Justice Abdul Malek Ahmad unanimously agreed that the police had acted in bad faith when arresting them in April last year.

However, the court announced 20 minutes later that its decision would not affect the two-year detention orders signed by Home Minister Abdullah Ahmad Badawi after the expiry of the first 60 days.

Dzaiddin said that it is now up to the detainees whether to file another fresh habeas corpus application to challenge the two-year detention issued under Section 8(1) of the ISA.

Lawyer R Sivarasa for one of the reformasi leaders later told reporters that they are still studying the matter and will discuss it before deciding whether to file a fresh habeas corpus application or not.

Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain if their detention is lawful.

The first 60 days of detention is made under section 73 of the ISA, which empowers the police to arrest those suspected of committing activities prejudicial to national security.

After the expiry of the first 60 days, the police will make recommendations to the home minister who is empowered under section 8(1) of the Act to further detain the suspects for another two years.

The reformasi leaders Keadilan vice-president Tian Chua, party Youth chief Mohd Ezam Mohd Nor, party leader Saari Sungib, malaysiakini columnist-cum-film maker Hishmamuddin Rais and FreeAnwar.com webmaster Raja Petra Kamaruddin filed a writ of habeas corpus after their arrest in April last year seeking to be released from detention under the ISA, which allows detention without trial.

While Raja Petra has since been released, the rest with the exception of Ezam are still serving their two-year detention order in the Kamunting Detention Centre in Perak. Ezam, found guilty for breaching the Official Secrets Act (OSA) last month, is now in Kajang prison serving a two-year jail sentence.

Applause

The people in the public gallery applauded when all the four judges completed reading their part of the written judgments concluding that the activists' detention was unlawful and that their applications for a writ of habeas corpus would be issued to secure for their release.

A voice in the crowd shouted "thank you" to the judges. However, the cheerful mood in the court was doused when Dzaiddin addressed the counsel on whether the judgment will affect the home minister's detention order and invited the counsel to submit on the matter.

Senior federal counsel Azahar Mohamed argued that today's judgment had solely considered the police detention under section 73 of the ISA and not the minister's order under section 8 of the same act.

He said the court cannot deliberate on matter not before it and would require another habeas corpus application before a different forum. He added that it would be unfair to challenge the minister when he was not called to give his defence.

However, counsel Christopher Leong said that, the detainees must be released because the minister's order was made on the premise of the police investigation conducted during the 60-day detention period, which the court had found to be unlawful.

Procedural issue

"Since the initial detention was unlawful, the subsequent order by the minister should not stand as it is a fruit of a poisonous tree. Whether there should be another application is merely a procedural issue.

"Procedural issues are only the handmaiden of justice. The master of justice is the Federal Constitution as it ensures liberty which the court today ruled had been denied from the detainees," Leong said.

The judges took 20 minutes to deliberate before making the final decision.

The reformasi leaders' supporters and their family members were heard grumbling among themselves, claiming that the court's judgment was nothing but "a farce".

Disappointment

DAP chairperson Lim Kit Siang, PRM president Dr Syed Husin Ali and Keadilan president Dr Wan Azizah Wan Ismail also expressed their disappointment on the outcome. (See Opposition leaders mock lukewarm 'schizo' judgment

)

All four judges have each prepared a written judgment to deal with all the different issues raised by the appellants.

The issues include whether the police detention was made in bad faith, procedural requirement of police detention under the ISA, whether ISA is ultra vires to the fundamental liberties and right to legal representation.

In his 20-page judgment, Dzaiddin said the appellants had succeeded in proving that the police had acted mala fide (bad faith) in exercising their powers under the ISA to arrest them.

He said that, the police failed to rebut the allegations that the arrest was not to investigate their conduct which was said to be prejudicial to Malaysia's security, but merely for intelligence gathering on political issues.

He said he was surprised that, while the police, through Inspector-General of Police Norian Mai, had told the press that the detention was related to national security, the appellants were not asked on militant activities but rather on their political activities, Keadilan's source of income, sex-related allegations and their connection with jailed former deputy premier Anwar Ibrahim.

Credible denial

Dzaiddin agreed with leading counsel Sulaiman Abdullah's argument that the police explanations were "grossly inadequate, bare denials, hearsay and cannot by any stretch of imagination amount to a credible denial".

Shim said that, although the ISA allows the police not to release any information relating to any arrest and detention, the court cannot be barred from any information for the purpose of judicial review.

While agreeing that the executive is the sole judge on matters pertaining to national security, the court should be able to consider whether the executive's decision was made in good faith and based on the interest of national security or otherwise.

Siti Norma said that ISA makes no provision for denial to legal representation during the initial 60-day detention as what had happened to the detainees.

Mockery of Federal Constitution

"Denying access during earlier part of the detention would have been acceptable to facilitate police investigation. But to stretch that denial throughout the duration of 60 days makes a mockery of Article 5(3) of the Federal Constitution (which gives a detainee right to counsel)," she said.

Abdul Malek said he disagreed with the counsel argument that ISA was meant to only deal with communist activities in the 1960s and agreed with the police that the act is for all forms of subversion.

However, he said the court should be able to enquire into the reasons given by the police for the arrest and detention under the ISA. He found that the reasons given by the police in arresting the appellants were flawed.

The five were arrested in an ISA dragnet beginning April 10 last year for alleged involvement in a militant attempt to overthrow the government.

In April last year, High Court judge S Augustine Paul had ruled that he did not have the jurisdiction to hear the case when it was brought before him two weeks after the five were arrested.

The five were arrested with five others for allegedly trying to topple the government through militant means. The police said their arrest was necessary to preserve national security.

The five had filed affidavits that they had been interrogated on subjects that had completely no relevance to national security but were instead queried on matters such as sexual allegations involving deposed deputy premier Anwar Ibrahim whose incarceration led to the formation of Keadilan and the reformasi movement.

The police, in their affidavits of reply, denied ever having asked the five any such questions.