Someone's IGP dumbfounded by guilt? is typical of the views expressed in malaysiakini since the Federal Court decided on Sept 6, 2002 that the detention of the so-called ISA 5 was in breach of Article 5(3) of the Federal Constitution because they were denied access to legal counsel expeditiously.

In it, the writer lambasts Inspector-General of Police Norian Mai for having kept silent despite the Federal Court's finding that the police had acted "deliberately" and with "bad faith". Most malaysiakini commentators on this issue have stated that the charge is equivalent to some kind of personal malice or malevolence on the part of the police and, specifically, the IGP, when the truth is that both words are legal terms of art which do not necessary suggest any such thing.

The Federal Court found — after making an impressive survey of the legal precedents in Malaysia, India and Singapore — that the police had been wrong to take the position that, while the detainees had the right to counsel of their choice, that right is suspended throughout the period of their detention under the ISA.

The Federal Court then ruled that the proper position is that despite an ISA arrest the fundamental constitutional provision embedded in Article 5(3) of the Constitution granting access to legal counsel was not suspended until the ISA detention period is over.

This is to put matters in perspective, shorn of emotion, and to point out that the ruling of the Federal Court in this case ought to be lauded because it has declared a landmark precedent that would define when ISA detainees should be allowed legal access in the future.

It is a case which lawyers can wave in the face of the police in future ISA cases. In essence, the case held that the right of an arrested person to legal representation starts from the day of his arrest but it cannot be exercised immediately after arrest if it impedes police investigation or the administration of justice.

That is not to say that the police did not come in for specific rebuke, which they ought to take seriously if they wish to act lawfully. The court did find that the denial of legal access showed that the police had used the ISA for the "collateral purpose" of denying the ISA 5 their rights to give instructions to their counsel to defend them in several other charges they faced. This is a serious judicial rebuke and some honest reflection over this by the police would not go amiss.

Police forces all over the world have attracted such criticisms from the courts. It is good to know that Malaysians courts do not shy away from making such criticisms when push comes to shove. It might be good to appreciate that a little.