The High Court today rejected the habeas corpus application of five reformasi activists detained under the Internal Security Act (ISA) two weeks ago for allegedly planning to use militant means and violent street demonstrations to topple the government.

Justice Augustine Paul said the court had no jurisdiction to hear the matter as the arrests and the detention of the five were done in accordance with powers vested in the police through the controversial security law.

"The executive is the judge in the matter of preventive detentions. The judicial process is unsuitable for reaching decisions on national security," said Paul in his 53-page judgment.

"It is therefore not the function of the court to act as a court of appeal for the discretionary decision of the executive (to arrest and detain) and to inquire into the grounds upon which they carried out the decision," he added.

He said that the applicants had failed to show that their arrests and subsequent detention were done in bad faith.

Habeas corpus is a writ ordering prisoners to be brought before a court or judge to ascertain whether their detention is lawful. It is often applied for by lawyers for those held under the ISA, which allows detention without trial for a minimum of two years following an initial 60-day investigative period.

Paul added that the applicants have been arrested and detained in the exercise of valid power and in compliance of section 73 of the Act. He also said that the court cannot require the police to prove to the court their reasons for the arrest and detention of the five.

He said that the detention orders showed that the police officers concerned had applied proper consideration in authorising the detention.

Paul said that the police or the Home Affairs minister cannot be required to furnish facts relating to the reasons for the detention if such a disclosure was against national interest.

Court powerless

He added the court was powerless to make an objective assessment and evaluation on the reasons for the ISA arrests given by the Inspector General of Police (IGP) Norian Mai in an April 12 press statement.

"In first two paragraphs, the IGP referred to information relating to the involvement of the seven detained in activities that may endanger the security of the country. He went on to say that the police need to carry out a thorough investigation based on the information."

"What then follows is a general description of the activities of the reformasi movement and it was general in nature," he said adding the press statement did not contain an exhaustive and detailed disclosure on any of the allegations against those detained.

"It was only a partial disclosure and it is impossible for me to make an objective assessment and evaluation in order to ascertain whether the arrests and detentions were justified," he said.

In his press statement made immediately after the arrests, Norian had said that the seven were detained for allegedly making plans to topple the government by organising mass demonstrations and using other 'militant means'.

The defence team had asked the court to assess this statement and make a ruling that if there were sufficient evidence linking the seven to any militant action, they should then be charged in an open court.

The IGP then submitted an affidavit claiming that the police had 'other reasons which could not be revealed' for the detention of the seven. This affidavit was subsequently accepted by the court.

Suhakam ticked off

Paul also dismissed the defence team's argument that the police had acted in bad faith by not charging those detained in an open court.

Paul said that the arrest and detention of a person under the ISA was no indication of bad faith by the police.

"ISA is a law that deals with preventive detention and it has been recognised that in matters relating to preventive detention, the executive is the judge. The ISA is unquestionably not an ordinary regulatory legislation. Its object is to defend and uphold national interest," he said.

He added that even the Federal Constitution provided that such a law was valid even though it was inconsistent with fundamental liberties assured in the constitution.

He also said that even the1948 Universal Declaration of Human Rights recognised that there can be restrictions in the exercise of a person's rights and freedoms by laws relating to public order.

"ISA has the highest purpose and objective to serve. Though regarded by some as draconian, the law must be considered in this background," said Paul.

Paul also commented on a press statement issued by the Human Rights Commission (Suhakam) denouncing the use of the ISA to detain the seven and asking them to be produced before the courts if there was sufficient evidence against them.

He said that it was inappropriate for Suhakam to make such a call as it amounted to an "unlawful interference with the lawful exercise of discretion by the police".

"While I am convinced that Suhakam acts with the best of intentions, it must realise that it is of prime importance that issues are kept separate so as to not risk confusing the public and adding the proverbial oil to the fire," he said.

He said that confusing the law in this case will only give false hopes to the detainees and their families.

'Frivolous, vexatious'

Touching on an application made by the defence team to disqualify him from hearing the matter, Paul said questioning his competence to hear the matter on account of his standing in the judicial hierarchy amounted to casting aspersions on the appointing authority, which was the Yang di-Pertuan Agong.

He said that it would have been a gross dereliction of his duty as a judge if he had disqualified himself from hearing the matter without any grounds.

He said that there were no connection to the "Black 14" gathering and his judgment on former deputy prime minister Anwar Ibrahim on April 14, 1999.

"Black 14 has nothing to do with the merits or demerits of the judgment that was delivered. The application to disqualify me was frivolous, vexatious and an abuse of the process of the court," said Paul.

The five reformasi activists were arrested ahead of a planned gathering outside the Suhakam's headquarters on April 14, the second anniversary of Anwar's conviction and six-year jail sentence imposed on him by Paul on charges of corruption.

The five detainees filed their habeas corpus application two weeks ago. Since April 10, a total of nine reformasi activists have been arrested under the ISA by the police.

The five are Keadilan vice-president Tian Chua, party Youth leaders Mohd Ezam Mohd Nor and Saari Sungib, Free Anwar Campaign (Freeanwar.com) webmaster Raja Petra Raja Kamaruddin and social activist-cum- malaysiakini columnist Hishamuddin Rais

Similar applications on behalf of two others, Keadilan youth leaders N Gobalakrishnan and Abdul Ghani Haroon, who were nabbed outside Kuala Lumpur, are being heard at the Shah Alam High Court today.

Another Keadilan leader Dr Badrul Amin Baharom was detained last Friday while the party's youth secretary, Lokman Adam was arrested early yesterday.