The Kuala Lumpur High Court was told today that there is no provision in the Federal Constitution to specifically exclude judicial review of Internal Security Act (ISA) detention orders issued by the home minister, thereby making any law seeking to do so unconstitutional.

Counsel Amer Hamzah Arshad submitted this during a hearing of habeas corpus applications yesterday for Jemaah Islamiah (JI) suspects Ahmad Yani Ismail and Abdul Samad Shukri Mohamad, who are currently serving a two-year detention under the ISA.

( Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain if there are any procedural defects which could render their detention unlawful.)

The lawyer said one unconstitutional provision is Section 8B of the ISA, which prohibits judicial review of the home minister's decisions to hold an individual without trial.

"The power of judicial review is to ensure that the executive and legislature have acted within the limits of their powers (but the ISA provision) virtually abrogates the power of the High Court to judicially review ministerial acts or decisions," he said.

According to him, the right to seek judicial review is one that cannot be suspended as it would affect the basic structure of the constitution which is to maintain the separation of powers doctrine of the nation.

No carte blanche

Amer said fundamental liberties enshrined in the Federal Constitution (such as the right to liberty and equality before the law) must always take precedence over any act passed by Parliament unless the latter is supported by specific provisions also within the constitution.

"Article 149 of the constitution only empowers Parliament to pass laws designed to stop or prevent various actions (deemed prejudicial to national security). It does not give carte blanche to Parliament to oust the court's power of judicial review," he said.

To illustrate his view, Amer cited a development in Singapore where the republic's Parliament had passed an amendment to exclude judicial review of detentions before the provision was included in its ISA.

In Malaysia, however, legislators only amended the ISA without a prior amendment of the constitution, thereby leaving intact the right of an individual to seek judicial review, he said.

Another of the lawyer's arguments was that the exclusion of judicial review would go against the guarantee provided under Article 8 of the constitution which states that all laws must be right, just and fair.

"Section 8B of the ISA, if read to totally annihilate any right to challenge the home minister's discretion, would allow a minister the right to do absolutely what he wishes even if the minister failed to take into account relevant considerations or if he acted in bad faith. This position would be completely arbitrary and oppressive in today's environment," he said.

Qualitative judgement

At the end of the hearing, Justice Heliliah Mohd Yusof adjourned the case until Dec 10 to allow more time for the respondents' representatives to prepare their submissions.

"The issue goes beyond what is normally heard by this bench for a habeas corpus application. The court has to address them in a more expansive manner," she said.

"A habeas application sometimes invites jurisdictional issues. We are now questioning not just the legality of the decision but also constitutional law whether the act of the executive is in accordance with the law."

Upon a request by the applicant's counsel Edmund Bon for the case to be decided before the expiry of the detainees' detention orders in February next year, Heliliah also indicated her willingness to present her judgement before that time.

"I agree that, while you want to chase the time line, I would appreciate that the court be given the opportunity to hand out a qualitative judgement to justify efforts (of the counsels)," she added.

Last week, Amer's co-counsels, in representing the applicants, told the court that the police had acted in bad faith by arresting Ahmad Yani and Abdul Samad without presenting proof of their involvement in supposedly subversive activities.

In addition, the judge raised the possibility that she might make an unprecedented order for the Home Ministry to submit to the court all evidence used in issuing the ISA detention orders.