The Kuala Lumpur High Court today called for nine of the Karachi 13 students detained under the Internal Security Act (ISA) for alleged terror links to submit personal affidavits for their habeas corpus applications after accepting technical objections by prosecution lawyers.

Justice Abdul Kadir Musa said he disallowed the motion by the applicants' lawyers to submit affidavits affirmed by mothers of students who have reached the required age of 18 years and above.

"I don't want to dismiss the application. But the motion (to use the mothers' affidavits) is disallowed and it is struck off with likelihood to file fresh applications," he said during a three- hour hearing this morning.

( 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 objections raised by deputy public prosecutor Nik Suhaimi Nik Sulaiman dealt mainly with the question of whether the detainees could have signed their own affidavits despite being held under the ISA at an unknown location.

According to him, Section 367 of the Criminal Procedure Code states what affidavits submitted in court should be made by person detained unless he or she is unable to make it by reason of restraint or coercion.

Contradiction

He said the students should have been asked to affirm their own affidavits since the police had allowed them to meet with their family members earlier this week.

"It is contradictory for the (family members) to say that they don't know where the boys are. They have contacted the police and the police have arranged meetings. They could have asked the detainees to sign their own affidavits," he said.

The judge called on the prosecution to make assurances in court that the applicants' lawyers would be allowed access to the students to record their testimonies.

He rejected arguments by lawyer representing the students, Edmund Bon, that the detainees could not be expected to confide freely as evident during meetings yesterday between the students and several lawyers which saw the exchanges closely monitored by police officers.

On another request by Bon, Abdul Kadir said the court could not decide that the detainees be allowed confidential access to their lawyers. He said the conditions of any meeting would be subject to police consideration over security issues.

The detained students, dubbed the 'Karachi 13', were first arrested in the Pakistani port city in late September on suspicion of being involved in militant activities, but were later released.

Upon their arrival in Kuala Lumpur last Monday, they were arrested by police who claimed that the students, aged between 16 and 25, could have been trained as the next generation of leaders for regional militant organisation Jemaah Islamiah.

Breach of Child Act

Meanwhile, Bon also argued for the admissibility of the affidavits of three underaged applicants notwithstanding the judge's decision to call for fresh affidavits to be filed for students who are above 18.

He said the preliminary objections made by the prosecution on the validity of the affidavits affirmed by the mothers are not applicable in the case of the trio since as underaged persons, they are not legally permitted to affirm affidavits.

"Proceedings in the high court must be conducted on the minors' behalf by an adult," he said.

Bon said the motion was to enable the court to hear the habeas corpus application of the three at the earliest possible opportunity since he contended that their detention is in violation of the Child Act 2001.

According to him, there are provisions in the Child Act 2001 which prohibit the detention of persons under the age of 18 for more than 24 hours without being brought before a court.

"Section 23 of the Child Act is so clear, notwithstanding any general law. These students are under the age of 18. As of today, they would have been interrogated for 10 days (since their arrest on Nov 10) and it is a total breach of this act. The Child Act was enacted to protect people like this," he asserted.

Although accepting this position, Abdul Kadir held off the arguments, saying that the lawyer had still not offered a reason for implying in the original affidavits that the students were not given legal or familial access.

He suggested that the lawyers resubmit fresh affidavits as well for the trio, although allowing the possibility that the students' mothers be made applicants for the proceedings, as opposed to the students being named.

The judge then adjourned the proceedings to Dec 11 to allow time for both sides to prepare their cases.