updated version

It is not a constitutional right of those detained under the Internal Security Act (ISA) to be present in court for their habeas corpus proceedings, the Federal Court ruled this morning.

A three-member panel of the country's highest court, in a unanimous decision, said that Shah Alam High Court judge Mohd Hishamudin Mohd Yunus was incorrect in his view that Article 5 (2) of the Federal Constitution provided for the detainees to be present.

"We are of the view that the High Court judge erred in his interpretation of Article 5 (2) to include the presence of detained persons in habeas corpus applications as a constitutional right," said justice Steve Shim Lek Leong.

Article 5 (2) states that "where a complaint is made to a High Court or any judge thereof that a person is unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is unlawful, shall order him to be produced before the court and release him".

The Federal Court then allowed an appeal against Hishamudin's ruling on May 4, ordering Keadilan leaders N Gobalakrishnan and Abdul Ghani Haroon to be produced in court for their habeas corpus applications hearing.

On May 4, Hishamudin ordered the two to be produced before his court stating that individuals cannot fully exercise their constitutional rights if they are not even allowed to attend their habeas corpus applications or are prevented from attending them.

Handicapped

Lead defence counsel R Sivarasa told reporters later that he was disappointed with the decision and that the detainees have been denied a fair hearing.

"It is unfortunate that they had been denied these benefits. Our position was that the constitution under Article 5 (2) can provide for their presence in the habeas corpus proceedings.

"Now without their presence there is no case in the fullest sense. We have been denied access and we are going to go in handicapped. This has been a blow to the protection of our most basic fundamental rights," said Sivarasa.

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

The three-member Federal Court panel comprised justice Steve Shim Lek Keong as chairperson and justice Abdul Malek Ahmad and Haidar Mohd Noor.

The prosecution team was represented by senior deputy public prosecutor Abdul Gani Patail.

The habeas corpus proceedings for both Abdul Ghani and Gobalakrishnan will continue at the Shah Alam High Court tomorrow at 11.30am.

No jurisdiction

On April 25, the Kuala Lumpur High Court quashed the habeas corpus applications by five other ISA detainees when Justice Augustine Paul ruled that 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 with the police through the ISA.

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

An application to appeal Paul's decision was made on the same day but defence lawyers have yet to receive a response.

Both Abdul Ghani and Gobalakrishnan, the above five and three other reformasi activists were detained under the ISA in a police crackdown beginning April 10. Police have said that the group allegedly planned to topple the government through militant means and mass street demonstrations.

The other three detained are Keadlian youth leaders Lokman Adam, Dr Badrul Amin and human right activist Badaruddin Ismail.

So far, only five out of ten detainees have been allowed to meet with family members. They are namely Mohamad Ezam, Keadilan youth leader Lockman Adam, party leader Dr Badrul Amin, Saari and Raja Petra .

The habeas corpus applications for Lockman, Badrul and Badaruddin have been filed at the Shah Alam High Court. "Family members filed the applications on May 4 but we have not heard anything yet," said Sivarasa.

Dashed hopes

Meanwhile reform movement Aliran expressed its disappointment by the ruling, asking how the presence of Gobalakrishnan and Abdul Ghani in court will abort the prosecution's case or interfere with the court proceedings.

"Why is the government fighting tooth and nail to keep the detainees away from public view?" asked the movement in a statement.

Aliran said that the Federal Court had dashed the hopes of many Malaysians who had looked forward to the detainees appearing in court to see if they were physically and mentally safe.

"Many Malaysians are not prepared to accept the authorities' assurances that the detainees have not suffered either physically or mentally."