An individuals constitutional right to counsel can be suspended under Internal Security Act detention, the Federal Court heard today.

We do not deny that the appellants have the right to legal counsel. However, it is submitted that case laws have decided that this right can be suspended under the ISA, senior federal counsel Abdul Majid Tun Hamzah told a four-member panel.

It is therefore clear that the police felt that they did not want any interference during their investigations, especially so when the appellants were arrested for involvement in activities that were prejudicial to the security of this country, Majid added.

Article 5(3) of the Federal Constitution states that where a person is arrested, he shall be informed as soon as may be of the grounds for his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.

Majid is representing the government in an appeal by five Keadilan and reformasi activists against the quashing of their habeas corpus applications by the Kuala Lumpur High Court last April.

Keadilan vice-president Tian Chua, party youth chief Mohd Ezam Mohamed Nor, party leader Saari Sungib, malaysiakini columnist-cum-film maker Hishmamuddin Rais and FreeAnwar.com webmaster Raja Petra Kamaruddin were arrested in an ISA dragnet beginning April 10 last year for alleged involvement in a militant attempt to overthrow the government.

While Raja Petra has since been released, the rest have been sent to the Kamunting detention centre in Perak under a two-year detention order signed by Home Minister Abdullah Ahmad Badawi.

Majid said under the ISA, a detainee is given his or her right to counsel only when a detention order is given by the Home Minister, 60 days after initial detention by the police.

First representation

The first representation available to the detainee is after the detention order is issued and the allegations of fact supplied and that would be the representation before the Advisory Board, Majid said.

Therefore we submit that the phrase ... shall be allowed to consult and be defended by a legal practitioner of his choice in article 5(3) for the purposes of the ISA would be appropriate in its application at the representation before the Advisory Board and for the preparation thereof and not during the investigation stage, he added.

The Advisory Board must hear the appeals within three months after receiving the appeal from the detainees.

Also arguing on article 5(3) of the constitution, senior federal counsel Mohd Yusof Zainal Abideen said the grounds of a persons arrest under the ISA can only be issued after the order for the two-year detention is given.

At the time of arrest it is sufficient for the arresting officer to inform the detainee under what law he is being arrested. Article 5(3) does not say as soon as possible, therefore the grounds of arrest, if required, must be informed to the detainee at the time the detention order is issued.

In that respect article 5(3) is suspended, Yusof said adding that the article must be read in the context of the arrest and the law under which a person is arrested.

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

Apart from Yusof and Majid, the prosecution team also includes senior federal counsel Azahar Mohamed and Mary Lim.

The Federal Court bench comprises Chief Justice Mohamed Dzaiddin Abdullah, Chief Judge of the High Courts of Sabah and Sarawak Steve Shim, Justice Siti Norma Yaakob and Abdul Malek Ahmad.

The hearing continues tomorrow.