The Bar Council today called on the government to immediately release the reformasi detainees whose incarceration by the police under the Internal Security Act (ISA) was found by the Federal Court to be "unlawful".

In a statement, the chairperson Mah Weng Kwai said that, since the initial detention by the police has clearly been proved unjustified, there can be no valid ground upon which the government can continue to detain them.

Mah said, the Federal Court's decision on the ISA 5 is of public importance in view of its implications on fundamental constitutional and human rights issues relevant to the subject of preventive detention in Malaysia generally.

Last Friday, the Federal Court the country's highest court allowed an appeal brought by five reformasi leaders that their detention by the police in their first 60 days under the ISA was unlawful.

Unilateral decision

"The Bar Council welcomes in particular the Federal Court ruling that the test for section 73 of the Internal Security Act is not a subjective, but an objective one," said Mah.

Section 73 of the act empowers the police to detain for 60 days, those suspected of committing activities prejudicial to national security.

After the expiry of the first 60 days, the police will make recommendations to the home minister who is empowered under section 8(1) of the act to further detain the suspects for another two years.

Mah added, "Detaining authorities cannot continue to arbitrarily arrest and detain persons on general, unsupported claims of them being a threat to national security."

A speedy, unilateral decision to release by the government following the Federal Court decision is not only the legal, proper course of action, but also necessary to demonstrate the government's continued commitment to the rule of law in this country, he said.

"Inaction on the part of the authorities will only render the Federal Court decision academic," he stressed.

The four-member Federal Court panel Chief Justice Mohamed Dzaiddin Abdullah, Chief Judge of the High Courts of Sabah and Sarawak Steve Shim, Justice Siti Norma Yaakob and Justice Abdul Malek Ahmad unanimously agreed that the police had acted in bad faith when arresting the ISA five in April last year.

However, the court announced 20 minutes later that its decision would not affect the two-year detention orders signed by Home Minister Abdullah Ahmad Badawi after the expiry of the first 60 days.

Up to detainees

Dzaiddin said that it is now up to the detainees whether to file another fresh habeas corpus application to challenge the two-year detention issued under section 8(1) of the ISA.

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

The reformasi leaders Keadilan vice-president Tian Chua, party Youth chief Mohd Ezam Mohd Nor, party leader Saari Sungib, malaysiakini columnist-cum-film maker Hishmamuddin Rais and FreeAnwar.com webmaster Raja Petra Kamaruddin filed a writ of habeas corpus after their arrest in April last year seeking to be released from detention under the ISA.

While Raja Petra has since been freed, the rest with the exception of Ezam are still serving their two-year detention order in the Kamunting Detention Centre in Perak.

Ezam, who was found guilty of breaching the Official Secrets Act last month, is now in the Kajang prison serving a two-year jail sentence.