Court orders legal access for ISA detainee, says police showed bad faith

comments     Leong Kar Yen     Published     Updated

The Shah Alam High Court today granted an alleged Malaysian Mujahidin Group (KMM) member access to legal counsel in his challenge against his detention under the Internal Security Act.

Justice Suriyadi Halim Omar, who presided over the habeas corpus application, said the police had shown bad faith by not allowing 45-year-old fishmonger Nasharuddin Nasir access to legal counsel following his arrest on April 17 this year.

"After having heard the submission on this point and having considered the case laws in these circumstances, as bad faith on the part of the police has been proven by [their] allowing family members access and not lawyers, I am giving orders in prayer one," Suriyadi told the defence lawyers.

"Prayer one" refers to the first request to the court made by Nasharuddin. His other requests include being freed from his detention, that he not be rearrested, and other conditions the court deems appropriate.

Suriyadi then ordered the government to allow Nasharuddin's defence counsel to meet their client tomorrow at 2.30pm.

Habeas corpus is a court petition which orders that a person being detained be produced before a judge for a hearing to decide whether the detention is lawful.

Nasharuddin was arrested on April 17 under Section 73 of the ISA and is now serving his 55th day in detention.

He named federal police chief Norian Mai, Home Minister Abdullah Ahmad Badawi and the government of Malaysia as respondents in his habeas corpus application.

'I am only siding the law'

Earlier, Nasharuddin's defence counsel Edmund Bon said while his family was allowed to see him three times, the lawyers were still denied access.

"We wrote a letter to the authorities on May 3 seeking access but were only given a reply on May 10 which said that we could not see him. The family, however, was given access on May 6," Bon said.

He added that the police had contravened Nasharuddin's rights under Article 5 (3) of the Federal Constitution which allows the detainee to have legal counsel of his choice.

However, senior federal counsel Kamaludin Mohd Said replied that under Section 16 of the ISA and Article 151 of the Federal Constitution, the police had the right to deny him access to legal counsel for reasons pertaining to 'national security'.

At this point, Justice Suriyadi was provoked into quizzing the prosecution on these 'provisions'.

"Where did the police actually get this 'god-sent' right to take away his right to counsel? The government cannot just say that they can do so. You must show me the provisions of law which provide for that. The detainee also has his rights," Justice Suriyadi rained questions on the prosecution.

Kamaludin then answered: "I must admit that there is no such law."

"If there is no such law, how can you stop him from seeing his lawyers? Why are you depriving him of these rights? Show me the provision that allows for this," the judge insisted.

He also took a swipe at the decision by Kuala Lumpur High Court judge S Augustine Paul to throw out the habeas corpus application of six Keadilan and reformasi activists last year accused of plotting to overthrow the government via 'militant' means.

"Justice Paul was justifying the police's denial of their (the detainees') legal access. I am not siding anybody. I am only siding the law. I don't need to justify anybody," he said.

'Police showed bias'

As for Nasharuddin's case, Justice Suriyadi said the police showed bias in not allowing the detainee access to his lawyers, which could best help him.

"This shows that the police showed favouritism and this shows bad faith. For the detainee, the best person is the lawyer. What can the relatives do? Why did the police deny legal counsel when the lawyer is the best person who can help?" he asked.

Nasharuddin was among 14 people rounded up by the police early this April for suspected involvement in the KMM which allegedly aimed to overthrow Southeast Asian governments through violence and turn them into Islamic states.

The KMM is also said to contain a splinter group — Jemaah Islamiah — suspected of being linked to Osama bin Laden's al-Qaeda terror network, held responsible for the Sept 11 terrorist attacks on the US.

The last wave of arrests took place just this April, bringing the number of KMM-linked arrests to 62 since last year. The police had added that 100 more arrests were expected.

Bon is co-counsel with Malik Imtiaz, Manjit Singh, KY Hon and Saiful Idzham. Besides Kamaludin, the government is represented by Nordin Hassan and Mohd Abazafree Mohd Abas.

Today's hearing was originally scheduled to be heard on June 3, but had to be postponed as the judge was taken ill then.



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