The Shah Alam High Court today ruled that the detention of two Keadilan leaders under the Internal Security Act was unlawful and done in bad faith, and ordered the police to free them.

Justice Mohd Hishamudin Mohd Yunus ordered the police to produce N Gobalakrishnan and Abdul Ghani Haroon in court at 3.30pm today for their release.

Hishamudin said that the detention was unlawful as the arresting officers had failed to justify the detention, and that affidavits filed by the respondents to contest the case were vague.

Gobalakrishnan and Abdul Ghani were among 10 reformasi activists rounded up by the police since April 10 under the ISA for allegedly planning to topple the government via militant means.

Their families had filed habeas corpus applications to the court seeking their release.

Today is Gobalakrishnan's 50th day and Abdul Ghani's 49th day in detention.

'Every second counts'

The judge initially ordered the two to be produced for release next Tuesday, June 5, and that they be given access to legal counsel not later than 10am on Friday, June 2.

However, lawyer Malek Imtiaz, who represented both detainees, told the court that since the detention had been declared unlawful, the detainees should be released immediately.

"Every second counts," he said.

Senior federal counsel Abdul Wahab Abdul Rashid said that time is needed for the police to produce the two as they (prosecutors) did not know where the detainees are being held.

Imtiaz, however, said that as Suhakam commissioners had met with the ISA detainees at the city's police contingent headquarters yesterday, the latter are thus believed to be in Kuala Lumpur.

"Keeping them longer would be depriving them of their constitutional liberties," added Imtiaz.

Laughter in court

Nevertheless, Wahab insisted that the prosecutors needed time to consult with the police, which brought laughter from the bench and those present in court.

After listening to the arguments from both parties, the judge ordered Gobalakrishnan and Abdul Ghani to be produced in court at 3.30pm today - an hour later than that requested by the detainees' counsels.

Justice Hishamudin said that should give the police enough time to bring the detainees to court.

Earlier, the judge read his judgment which explained his grounds for ruling the detention of the duo as unlawful.

Hishamudin began by detailing the history of habeas corpus .

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.

Hishamudin said that habeas corpus originated in English law at a time when the judges took orders from the executive powers.

"But the people of England overthrew the government. Thereafter, the judges did not take orders from anyone," said Hishamudin, who added that judges are protectors of fundamental rights as entrenched in the Constitution.

"The affidavits by the respondents are vague in nature and inadequate. The grounds for arrest must be clearly stated in the affidavit and it cannot simply parrot the provisions in the Constitution. There must be some reasonable amount of particulars (on the grounds of arrest) to be fair to the detainee who believes he is innocent," he said.

Therefore, he said, he was impelled not to detain the applicants further as it is in breach of the Constitution.

Procedural rights ignored

Hishamudin further ruled that the affidavits have failed to provide grounds for authorising further detention.

"The Inspector General of Police and director of Special Branch have prematurely made up their minds to detain them for the 30 days well beyond that stated in the ISA. The IGP and director of SB have ignored procedural rights."

By procedure, Section 73(3) (a), (b) and (c) of the ISA allows a police inspector to lengthen a detention beyond 24 hours, an assistant superintendent, for more than 48 hours and a deputy superintendent, for more than 30 days up to a maximum of 60 days, to conduct investigations.

Hishamudin also stated that the detention was done in bad faith as the police did not allow the detainees access to their families and legal counsel for 40 days.

"Not allowing access to one another is cruel, inhuman and oppressive, not only to the detainees but also to their family members," said Hishamudin.

He also said that there is no provision under ISA that gives the police such drastic powers to not allow access to family and legal counsel until the investigations are completed.

"What harm would the visits of the family members bring? The visits can be closely monitored. This court does not understand such reasoning. It is a blatant and gross violation of the detainees' constitutional rights. It is unlawful to deny them (their rights)," said Hishamudin.

He said that the court can only make fair judgments after scrutinising affidavits from both sides.

"There were no affidavits filed by applicants because for 40 days they were denied access to their lawyers. If applicants truly believe that they were framed and their detention was unjust, it is their right to file habeas corpus as guaranteed under Section 5(2) (of the Constitution)," said Hishamudin.

Section 5(2) of the Constitution allows the court to look into the detention under ISA and may order the release of the detainees if the judge is satisfied that the detention is unlawful.

'Reconsider ISA'

At the end of reading of his judgment, he stated that "it is high time" for the Parliament to take a second look at ISA and decide whether it was only meant for communist terrorism.

Hishamudin said the Parliament should decide whether ISA is relevant in the present situation of the country in order to prevent and minimise abuses by the authorities.

The prosecutors did not say whether they are going to appeal against today's decision ordering the two detainees be released.

On May 16, the Federal Court struck down a decision by Hishamudin ordering the police to produce Abdul Ghani and Gobalakrishnan in court so that they could be present for their habeas corpus applications hearing.

Gobalakrishnan and Abdul Ghani were represented by R Sivarasa, Kamarul Hisham Kamaruddin, Imtiaz, P Kandasamy, and Saiful Idzham, while the prosecutors were Abdul Wahab and Abdul Rasid Sidek.

Similar applications by five other detainees were dismissed by the Kuala Lumpur High Court on April 25 on the grounds that the court had no jurisdiction to hear the matter as their arrests and detention were done in accordance with powers vested in the police through the ISA.

Justice Augustine Paul also said that the five applicants have failed to show that their arrests and subsequent detention were done in bad faith. The Federal Court will hear the appeal of the five on June 18.

Three other detainees have also filed habeas corpus applications at the Shah Alam High Court and their case will be heard on June 14.