The Kuala Lumpur High Court was told to refrain from intervening in matters of national security as the government is entitled not to reveal information in making decisions on such matters.

Deputy public prosecutor Mohamad Hanafiah Zakaria said this today during the habeas corpus hearing of two alleged Jemaah Islamiah members - Ahmad Yani Ismail and Abdul Samad Shukri Mohamad - who are currently being held under the Internal Security Act (ISA).

"Where matters of national security and public order are involved, the court should not intervene by way of judicial review or be hesitant in doing so as these matters invariably involve policy considerations and the like," he said during a full-day hearing before justice Heliliah Mohd Yusof.

Ahmad Yani and Abdul Samad were both arrested on Dec 29, 2001 under Section 73 of the ISA for allegedly being involved in local militant group, the Kumpulan Mujahidin Malaysia (KMM).

After three months of investigations, the home minister issued them with two-year detention orders under Section 8 of the ISA on grounds that they were members of regional militant organisation Jemaah Islamiah.

The duo is seeking declarations that their detention under the ISA was carried out in an unlawful manner, and they have named as respondents to their application the inspector general of police, the home minister and the government.

No judicial review

Hanafiah said according to provisions in the law, the home minister, who issues ISA detention orders, is entitled not to disclose any fact or produce any documents for the scrutiny of the courts if the minister feels it to be against national interest.

Referring to two legal precedents, the DPP said that it has been established that the executive or the government is the sole judge of the propriety of preventive detention orders.

"The executive is the sole judge and it should not be questioned. It is undesirable for national security matters to be made the subject of evidence in court."

In addition, he said the High Court should also not act as a court of appeal for the discretionary decisions of the cabinet.

Aside from national security considerations, Hanafiah said that the possibility of judicial review of the home minister's decisions in matters of preventive detention has also been removed by several amendments to the Federal Constitution and the law.

According to him, the principle of judicial review as a basic feature of the Federal Constitution can no longer be sustained because of two later amendments to the constitution.

"With Article 121, judicial power is no longer there in the constitution. Instead, the High Court now derives its jurisdiction and powers from federal law," he said.

Hanafiah also said that Article 149 of the Federal Constitution clearly stipulates that any law enacted by Parliament under the said article, in this case the ISA, is valid even though it may infringe on other constitutional guarantees such as the right to trial and freedom of assembly.

"(These provisions) fall squarely within the parameters of Article 149 and are therefore not unconstitutional," he added.

'Academic exercise'

Meanwhile, another deputy public prosecutor Nik Suhaimi Nik Sulaiman said the court should confine itself to considering whether any procedural defect has occurred in the detention of the two JI suspects under Section 8 of the ISA and not during their initial 60-day detention period under Section 73.

He said that any attempt by the court to look into the legality of the detainees' Section 73 detention would be merely "academic" as the initial detention period had lapsed.

Furthermore, he said alleged flaws in the detention orders under Section 73 would also not be a basis to nullify the detention orders under Section 8.

"Even if the court rules that the Section 73 detention orders were illegal, it would not affect the decision of the minister issued under Section 8. Even if the minister's decision was made based on allegedly illegally obtained evidence, the material is still applicable if it is relevant," he said.

Nik Suhaimi further added that the applicant's counsel had failed to show that the JI suspects' arrests had been carried out in bad faith or if there were any other reasons for the arrests other than for national security concerns.

Lawyers representing the detainees had earlier argued that the ISA detentions had been carried out with bad faith as the authorities had failed to show any proof of their involvement in subversive activities.

They also said the right to judicial review is a fundamental feature of the Federal Constitution which cannot be compromised by any later amendments or law.

Hearing continues on Wednesday.