The Shah Alam High Court today ordered two reformasi activists detained under the Internal Security Act (ISA) to be produced before the court for their habeas corpus applications.

Justice Mohd Hishamudin Mohd Yunus made the order today after having heard submissions from defence and prosecution last week.

"In my judgment, by virtue of clause 2 of Article 5, the right to apply to the High Court for a writ of habeas corpus is not merely a legal right but also a constitutional right available to any person who believes that he has been unlawfully detained," Hishamudin said.

"The right being a constitutional right, I think it should follow that he has every right to be present in court at the hearing of his application," he added

Clause 2 of Article 5 of the Federal Constitution stipulates that "where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained, the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him."

Families of Abdul Ghani Haroon and N Gobalakrishnan filed the habeas corpus applications two weeks ago seeking their immediate release after they were detained on April 11 and 10, respectively, under the ISA for allegedly planning to topple the government by militant means and mass street demonstrations.

Habeas corpus is a writ ordering prisoners to be brought before a court or a judge to ascertain whether their detention is lawful

'No strong reasons'

Hishamudin said that individuals cannot fully exercise their rights under the Article if they are not even allowed to attend their habeas corpus applications or are prevented from attending them.

"It must not be forgotten that the detainee is a party to the proceeding and the cardinal principle is that every detention is prima facie unlawful and the burden of proof is on the detainer to justify it.

"In the present case, I see no strong and compelling reasons being produced," Hishamudin said.

A stay of order pending the prosecution's appeal to the Appellate Court made by Senior Federal Counsel Abdul Wahab Abdul Rashid was disallowed

Wahab had argued: "Both of the detainees were arrested under the ISA due to the security of the nation and producing both of them might attract a crowd to the court and thus jeopardise the smooth running of this hearing."

The prosecution is also appealing to the Federal Court against the dismissal of their stay of order application.

Earlier, lawyers for the two detainees, led by R Sivarasa, had submitted that their clients' presence was vital to ensure that they were in good health as well as to enable the lawyers to take legal instructions from them.

The hearing continues at 10am on Tuesday.

Thrown out

Abdul Ghani and Gobalakrishnan were among an initial seven arrested under the ISA, the other five being Keadilan vice-president Tian Chua, party Youth leaders Mohamad Ezam Mohd Nor and Saari Sungib, Free Anwar Campaign (Freeanwar.com) webmaster Raja Petra Raja Kamaruddin and social activist-cum- malaysiakini columnist Hishamuddin Rais.

Two other Keadilan leaders, Dr Badrul Amin Baharom and Lokman Adam, were arrested on April 20 and 24 respectively while human rights activist Badaruddin Ismail was detained on April 25. The habeas corpus applications of Tian Chua, Ezam, Saari, Raja Petra and Hishamuddin were thrown out by the Kuala Lumpur High Court last Wednesday with Justice Augustine Paul ruling that the court had no jurisdiction to hear the matter.