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Print version of this story
Wednesday May 30
Judge orders release of ISA duo, rules detention 'unlawful'
Zakiah Koya
11:46am, Wed: 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
libertie!
s," 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 a!
n 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 grou!
nds
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
dra!
stic 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 tha!
t 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.
Federal Court to hear habeas corpus appeal on June 18
Judge says ISA in national interest, quashes bid to free 5
Last modified:Wednesday May 30, 3:19 pm
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