The Federal Court should have used its inherent power to order the immediate release of the reformasi activists without the necessity of another habeas corpus application when it allowed their appeals on Sept 6, said prominent criminal lawyer Karpal Singh.

In a phone interview yesterday, he said the Federal Court should not have gone on technical grounds in considering the five activists' habeas corpus applications seeking to declare their arrest and detention under the Internal Security Act (ISA) as unlawful.

He said Article 5 (2) of the Federal Constitution provides the court with wide powers to inquire into a complaint, either in oral or written form, thus dispensing with the need for a fresh application.

Karpal was referring to the half-measure behind the court pronouncement that, despite finding the initial 60-day detention of the five unlawful and in bad faith, the resultant two-year detention orders signed by Home Minister Abdullah Ahmad Badawi would not be affected by the decision.

Chief Justice Mohamed Dzaiddin Abdullah had said it was up to the detainees to file a fresh habeas corpus application to challenge the two-year detention issued under section 8(1) of the ISA.

The five Keadilan leaders Tian Chua, Mohd Ezam Mohd Nor and Saari Sungib, malaysiakini columnist-cum-film maker Hishamuddin Rais and Free Anwar Campaign director Raja Petra Raja Kamaruddin were detained in April last year for allegedly plotting to topple the government through militant means, a charge which they have denied.

Raja Petra was released before the expiry of the 60-day period while Mohd Ezam is now serving a two-year jail term at the Kajang prison after he was found guilty of breaching the Official Secrets Act 1972 last month.

The rest, including two other Keadilan leaders Dr Badrulamin Bahron and Lokman Noor Adam, are being held at the Kamunting Detention Centre in Perak.

Potential danger ahead

"It was wrong to decide this way. Justice was certainly denied," said Karpal when asked for comment on the decision.

He said it was common knowledge that the police investigation in this case was flawed and had therefore contaminated the subsequent ministerial order.

"The Federal Court should have asked the attorney-general to release the five detainees by using its inherent powers to ensure that justice was done.

"The court should have done some effective order and not put forth an academic position."

Otherwise, it should not have made any decision at all on the matter, he insisted.

"The Federal Court must be proactive in addressing citizens' liberty," he added.

However, Karpal said it was not too late to apply "by way of motion in the same proceedings" and ask the court to complete the process by invoking its inherent powers.

"In fact, the government or home minister should be honourable and mature enough to release the five detainees without a court order anyway.

Karpal warned that the 'incomplete' decision may have inadvertently opened a backdoor for the government to continue detaining the five activists.

"The government could very well short-circuit the whole thing by releasing the detainees and later re-arresting and detaining them. There is nothing to stop the government from doing this."

On the option of applying a fresh habeas corpus application, Karpal said it was harder here for plaintiffs to have such applications heard in courts compared with other countries.

"There is no hard and fast rule here. In India, for example, anyone can write a letter to the supreme court for a habeas corpus application, especially having regard to the issue of personal liberty," he revealed.

Karpal, who is also DAP deputy chairperson, was a fomer ISA detainee himself.

Several options to serve justice

Another senior lawyer, who criticised the decision as nothing substantive in law, also described it as a whitewash.

"They (Federal Court) wanted to please the government by delaying it and forcing the five to re-apply for habeas corpus ."

Requesting anonymity, he said the decision delivered by Mohamed Dzaiddin gave the impression that it was a good move when in effect it did not resolve the issue of personal liberty.

"Of course, the first thing would be for the Federal Court to order for the release of the four detainees. Failing which, it could have done any one of several things."

He said the court could have asked for an oral application to include the home minister as a defendant or adjourn the matter for a week pending the filing of an amendment to the application.

Alternatively, the court could have the application filed in the form of a certificate of urgency for an immediate decision.