The Federal Court has no power to inquire into cases of preventive detention as it entails national security, a four-member panel of the court was told today. "Ultimately, national security is the ambit of the executive and it is not suitable for the Federal Court to look into the matter," senior federal counsel Mohd Yusof Zainal Abideen said.

"This case before the Federal Court is on preventive detention and it is not based on proof but suspicion," Yusof said adding that this would restrict the court's ability to carry out a proper inquiry.

The prosecution team comprising Yusof, Azahar Mohamed, Mary Lim and Majid Tun Hamzah are representing the government in a Federal Court appeal brought by five ISA detainees against a Kuala Lumpur high court judgement that quashed their habeas corpus applications.

Last April KL high court judge Augustine Paul said that he did not have the jurisdiction to hear the case when Keadilan and reformasi leaders Mohamad Ezam Mohd Nor, Raja Petra Raja Kamaruddin, Tian Chua, Hishamuddin Rais and Saari Sungib sought a writ of habeas corpus two weeks after they were detained under the ISA.

The five were detained in an April 10 dragnet for alleged involvement in a militant attempt to overthrow the government. The government has yet to substantiate its claims. One of the five detainees, Raja Petra, has since been released.

The ISA detainees are represented by R Sivarasa, Sulaiman Abdullah, Malik Imtiaz Sarwar, Christopher Leong, and M Moganambal.

Special provisions

Earlier, Azahar submitted that the ISA, which allows for detention without trial, is often used to protect democracy.

"The ISA is not only to be used against the communists but also to deal with other subversives threatening democracy in this country," Azahar said.

He was attempting to counter the defence argument that the ISA was specifically formulated in the 1960s to contain the communist insurgency.

"There is nothing to indicate that the act is only limited to communist insurgencies and even though the threat from the communists is over it does not mean that the ISA is irrelevant.

"The ISA can be used against non-communists as long as the executive is satisfied that the activity is prejudicial to national security," Azahar said.

The ISA, formulated by parliamentary draftsman RH Hickling and gazetted in 1960, finds its source in Article 149 of the Federal Constitution which empowers Parliament to legislate laws to ensure national security.

"The legislative purpose of Article 149 is very clear that is to enable Parliament to enact laws to suppress and to prevent the recurrence of any forms of subversion, including but not limited to communist subversions," Azahar said.

When asked by Federal Court justice Abdul Malek Ahmad how he (Azahar) could reconcile Article 149 and the part of the constitution that guarantees fundamental liberties, Azahar replied that the said article was equipped with special provisions that allowed it to be inconsistent with the other parts of the constitution.

Other charges

Lead defence counsel Sulaiman said that the ISA detainees could not be given proper legal counsel due to the fact that they had been detained under the act.

"The ISA has been used against them to deny them their right to legal counsel for other criminal charges they face," Sulaiman said.

The detainees are also being charged for alleged illegal assembly, sedition and revealing matters under the Official Secrets Act.

Under the ISA, detainees also have no privacy as legal documents have to be vetted by the authorities.

Defence lawyer Sivarasa had submitted that the rights of a detainee to legal counsel under the federal constitution would become illusory if the authorities continue to deny the detainees their rights.

The hearing continues tomorrow.