The habeas corpus hearing of two Jemaah Islamiah (JI) suspects took an unexpected twist today when the Kuala Lumpur High Court raised the possibility of compelling the Home Ministry to submit the evidence used in issuing the Internal Security Act (ISA) detention orders.

Justice Heliliah Mohd Yusof suggested that although the home minister is by law not required to reveal his reasons to the detainees, this restriction may not apply to the court.

"The term 'satisfied' (as to the reasons for detention) applies differently to me as to the home minister. I have to be satisfied as to the merits of the case. Do I now direct parties to file further affidavits?" she said during the three-hour hearing.

According to her, a related case last year involving the ISA detention of Keadilan leader Mohd Ezam Mohd Nor and several others had dealt partially with the issue but left "a trail of unanswered questions".

"Do we want to turn this into a test case?" she questioned further.

[ Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain if their detention is lawful.]

The judge brought up the issue halfway during submissions by lawyers representing detainees Ahmad Yani Ismail and Abdul Samad Shukri Mohamad, who are seeking a declaration that their detention under the ISA was carried out in an unlawful manner.

The duo were arrested on Dec 29, 2001 under Section 73 of the ISA for allegedly being involved in a local militant group the Kumpulan Mujahidin Malaysia (KMM).

After three months of investigations, the home minister issued a two-year detention order under Section 8 of the ISA for them on the grounds that they were members of the regional militant organisation, JI.

'Hiding things'

Responding to questions raised by Heliliah, counsel Edmund Bon said the police and the home minister should not be "hiding things" from the court but provide sitting judges with copies of investigation reports and material evidence used in deciding on the issuance of detention orders.

"When a minister makes an order and there is a challenge, the minister should at the very least commit to a private hearing to adduce these materials for the court's satisfaction. This should be done as early as possible," he said.

However, Bon said he would not support a decision for this requirement to be introduced at this point since he had submitted that there was procedural defect in his clients' case

Earlier, arguing against the legality of Ahmad Yani and Abdul Samad's detention under Section 73 of the ISA, Bon's co-counsel Edward Saw said the police failed to state their grounds for arresting individuals as required by law.

"There is absolutely no material evidence produced by the respondents (in the present case) to justify (Ahmad Yani and Abdul Samad's) detention under Section 73," he said.

Saw referred to the judgements arising from two previous habeas corpus applications during which the judges upheld the requirement for the authorities to present evidence to satisfy the court that they had reason to carry out the arrests and detentions.

In the first of the two cases - the Mohd Ezam case which took place in September last year - the Kuala Lumpur Federal Court found the initial 60-day detention of five reformasi activists to be unlawful as the police failed to rebut allegations that the arrests were not to investigate any conduct which could be prejudicial to national security.

The court controversially stopped short of ordering the release of the group on the grounds that they were at the time of the proceedings no longer held under Section 73 but under Section 8 of the ISA. (All five reformasi activists have since been released on expiry of their two-year detention orders).

Two months later, Shah Alam High Court judge Suriyadi Halim Omar ordered the release of trader Nasharuddin Nasir on the grounds that the police had failed to show any evidence to justify the arrest under the ISA.

Different justifications

Meanwhile, Bon questioned the validity of the subsequent issuance of two-year detention orders against his clients under Section 8 of the ISA.

The lawyer said in order to detain the duo, the home minister was required by law to be satisfied that they had acted prejudicial to national security and were likely to commit further acts of that nature.

"But when we look at the detention orders, it only stated that the detainees had committed acts against national interest. There was absolutely no evidence on what they might do in the future. Under Section 8, (the authorities) must list specific acts to support their grounds," he said.

Another problematic area, said Bon, is the different justifications gave by the authorities for detaining Ahmad Yani and Abdul Samad between the time when they were first arrested and the time when they were served their two-year detention orders.

"They were first arrested on allegations of being KMM members but this was later changed to JI. This contradiction points to mala fide (bad faith) detention of my clients," he said.

The lawyer also said some of the reasons used to justify detention of the two, such as their participation in religious classes held by Indonesian clerics were not offences per se.

He said such practices were well within religious freedom rights enshrined in Article 11 of the Federal Constitution.

"There has been no detail on how my clients could be involved in any plan to set up a pan-regional Islamic state as alleged by the authorities," he added.

Following Bon's submissions, the court adjourned the case until next Monday to hear further arguments from the applicants' lawyers and the responding submissions by the public prosecutors.

Representing the respondents - who are the inspector-general of police, the home minister and the government - are deputy public prosecutors Hanafiah Zakaria and Nik Suhaimi Nik Sulaiman.