The police had dark and shadowy motives in arresting five Keadilan and reformasi activists under the Internal Security Act last year, the Federal Court was told today.

The shadowy motives and the dark cloak of their arrest was to remove them from the political scene, to turn them over and to gather intelligence, lead defence counsel Sulaiman Abdullah told a four-member panel.

Those were the primary reasons for arresting them and not as threats to national security, Sulaiman added.

Sulaiman was submitting at the hearing for Keadilan and reformasi activists, Tian Chua, Mohamed Ezam Mohd Nor, Saari Sungib, Raja Petra Kamaruddin and malaysiakini columnist-cum-film maker Hishamuddin Rais in their appeal against the quashing of their habeas corpus applications by the Kuala Lumpur High Court last April.

High Court judge 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 in a April 10 swoop.

Raja Petra has since been released but the rest are now serving two-year detention orders under the ISA at the Kamunting detention centre.

The five were arrested with five others for allegedly trying to topple the government through militant means and that their detention was necessary to preserve the national security.

The five had filed affidavits that they had been interrogated on subjects that had completely no relevance to national security such as sexual allegations involving deposed deputy premier Anwar Ibrahim, largely seen as the figure for both Keadilan and the reformasi movement.

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

Bad intentions

However, Sulaiman said that affidavits submitted by the police were riddled with gaping holes. He added that the affidavts were filed by police officers who were not directly involved in the case.

"This was despite court directions that the affidavits must be filed by officers involved in the interrogations," said Sulaiman.

The court must be given credible evidence, Sulaiman said, adding that the police had clearly acted with bad intentions.

Defence co-counsel R Sivarasa said that it was a contravention of the fives constitutional rights by not allowing them access to legal counsel during their 60-detention period by the police.

The fact of an ongoing investigation per se, cannot be used to delay access until the completion of the entire investigation period.

So, if access is denied on the basis of showing interference with investigations, then the police must substantiate that allegation by showing that there was a basis to believe that the lawyer concerned would interfere with the investigation, Sivarasa said.

Be vigilant

Concluding submission for the defence, counsel Malik Imtiaz Sarwar urged the court to be vigilant when interpreting Article 149 of the Constitution which allows for the creation of emergency laws like the ISA.

Battling subversion and terrorism can be achieved even by laws which do not seek to oust the fundamental liberties enshrined.

And even if it could be said there was legislation which warranted the extremity of Article 149, then this legislation must adhere to the stringent preconditions of the article. The courts must be vigilant, Malik said.

The defence team for the five also includes Christopher Leong and M Moganambal. The government was represented by senior federal counsel Azahar Mohamed assisted by Mohd Yusof Zainal Abideen, Mary Lim and Abdul Majid Tun Hamzah.

Today was the final day of hearing for the case. The four-member bench comprising Chief Justice Mohamed Dzaiddin Abdullah, Chief judge of the High Courts of Sabah and Sarawak Steve Shim, Federal court justices Siti Norma Yaakob and Abdul Malek Ahmad have deferred their judgement to a date to be fixed later.