ISA Musical Chairs: High Court judgment in Azzahari & 7 others

Regarding the grounds of judgment delivered by Dato Hj Ghazali Bin Hj. Cha J on the writ of habeas corpus for 8 detainees held without trial under the ISA for allegedly having links to Al-Qaeda. See Azzahari & 7 ors v. Inspector General of Police & 2 others dated 11 March 2010 here.

We often hear that the draconian and anachronistic ISA is used by the government of the day as an oppressive tool to stifle peaceful and political dissent. More often than not, political activists/politicians and to some extent, journalists in the past decade have been detained under the ISA without trial.

However, the ISA was again used recently on 21 January 2010 – but this time rather than targeting political opponents, more than 50 people of various nationalities including students from local universities were arrested in a crackdown at Sungai Cincin, Gombak for allegedly participating in “unsanctioned” Islamic sermons/religious classes; and for allegedly having links with international terrorist organisations.

Despite letters sent by us (as solicitors representing the detainees) to the Inspector-General of Police and the Home Minister on 29 January 2010 to seek further information on the arrests and to request for access, the addressees failed to respond positively.

A writ of habeas corpus was subsequently filed on 4 February 2010, on behalf of the detainees, to secure the release of those still being detained and to prevent the deportation of those who were not Malaysians. On 5 February, we were informed that one of the foreigners had been deported back to his country of origin, while the remaining 6 had been released to the custody of the Immigration Department.

The application was heard by the High Court on 10 March 2010, before His Lordship Dato Hj Ghazali Bin Hj. Cha. On the very same day of the hearing, in an obvious attempt to frustrate legal process, we were informed that a Restriction Order has been issued against Azzahari, the Malaysian detainee.

In light of this, a preliminary objection to the writ was raised on the ground that the application is now academic as the detainees are no longer in the custody of the Police or Home Ministry.

In dismissing the application for writ of habeas corpus (and thus allowing the preliminary objection), the High Court held inter alia:-

1. On the issue of the application now being academic

Adalah undang-undang yang mantap bahawa sesuatu Permohonan untuk mendapatkan writ of habeas corpus hanya terpakai bila mana seseorang individu itu berada di dalam tahanan secara fizikal dengan tidak mengikut undang-undang; atau dengan lain perkataan “He must be in actual custody,” “restrictee” juga tidak berhak untuk memohon writ of habeas corpus. Rujuk kes ‘Kerajaan Malaysia & Ors v. Nasharuddin Nasir’ (2004) 1 CLJ 90 (F/Ct):

“In the result, Choor Singh J took the position that a writ of habeas corpus had to be addressed to the person or authority having actual physical custody of the person alleged to be detained illegally. That, in my view, represents a correct statement of law. In a situation where the court finds it impossible to issue the writ because the person or authority no longer had the custody of the detainee, it should not hear the application. Indeed, it has no jurisdiction to do so. This is precisely the position of the instant case. Here, the facts show that when the application came up for full argument before the court, the police no longer has custody of the respondent. …”

2. On the issue of public policy and public interest grounds

One of the issues submitted by us was whether the scope and purview of ISA was wide enough to cover alleged security threats outside Malaysia i.e. international security threats. It was submitted that the purpose of the ISA, via the speech of Tun Abdul Razak recorded in Hansard, limited the use of the ISA to internal threats:-

The Honorable Prime Minister and other Members of Government, including myself, have made it quite clear on a number of occasions that, because Emergency is to be declared at an end, the Government does not intend to relax its vigilance against the evil enemy who still remains as a threat on our border and who is now attempting by subversions to succeed where he has failed by force of arms. It has two main aims: firstly to counter subversion throughout the country and secondly, to enable the necessary measures to be taken on the border area to counter terrorism.

The High Court however held as follows:-

Mengenai isu kepentingan awam, saya percaya kepentingan awam akan lebih dipelihara dari segi keselamatan mereka sekiranya tindakan pencegahan yang cepat bagi menangani isu keganasan diambil, maka isu sama ada ISA terpakai hanya untuk keselamatan negara hendaklah ditafsirkan secara meluas, iaitu bagi menghalang kegiatan keganasan yang akan atau mungkin menular ke negara ini, apa yang berlaku di negara luar perlu dihalang penularannya ke negara ini, di dalam kes ini Pemohon-pemohon telah ditahan di dalam negara ini, dalam keadaan ISA adalah terpakai kepada Pemohon-Pemohon.

3. On the issue of the conduct of the Respondents in frustrating the legal process

Mengenai isu kedua sama ada Y.B. Menteri dan Responden bertindak secara melampau dengan niat bagi menggagalkan Permohonan Pemohon-Pemohon, saya percaya ini bukanlah menjadi isu berdasarkan kepada jumlah pemfailan affidavit-affidavit oleh Responden-Responden, dan tindakan Y.B. Menteri yang menandatangani perintah sekatan terhadap Pemohon Pertama baru semalam (10/3/2010), pada pendapat saya, tidak sekali-kali terjumlah kepada tindakan menghina Mahkamah. Saya faham dengan kesibukan Y.B. Menteri setiap hari dan tandatangan di saat akhir perintah sekatan itu pada pendapat saya dilakukan tanpa unsur-unsur mala fide.

An appeal was filed on 5 April 2010 against the decision and is now scheduled to be heard on 19 July 2010 by the Federal Court. Another habeas corpus appeal is scheduled to be heard together, that of actor Khaeryll Benjamin Ibrahim (popularly known as Benjy).

LB: The writer is the solicitor at Messrs Richard Wee & Yip handling the matter, and part of the team of counsel acting for the detainees.