The Federal Court today ruled that the detention of Malaysian Mujahidin Group (KMM) suspect Nasharuddin Nasir under the Internal Security Act (ISA) was valid.

Chief Judge of Sabah and Sarawak Steve Shim made the ruling when allowing the government's appeal against the release order made by the Shah Alam High Court judge Suriyadi Halim Omar on Nov 8 last year.

"I find sufficient merits in the appeal. Accordingly the appeal is allowed," said Shim at the close of his judgment which was concurred by Federal Court judge Siti Norma Yaakob. The other judge who heard the appeal was the former Chief Justice Mohamed Dzaiddin Abdullah who has since retired.

Remain patient

As expected, it was very difficult for Nasharuddin's family and friends - most of them were wives of other KMM suspects under ISA detention - to accept the decision.

Most of them shed tears knowing that today's judgment will effect those who had planned to file a similar habeas corpus application.

After briefing the family of the ruling, lawyer Edmund Bon advised them to remain patient and gave his assurance that the lawyers will study the judgment before giving further advice.

One of them were heard saying: "It is difficult for us to continue having faith in the Federal Constitution."

Suriyadi had allowed Nasharuddin's habeas corpus application when she held that there was no evidence to show that the trader was involved in any terrorist activities as alleged by the police when they arrested him with 13 others in April last year.

(Habeas corpus is an application which enables detainees to challenge their arrest or detention order, including those made under the ISA which provides for detention without trial.)

He further found the two-year ISA detention order issued by the home minister as unlawful, as it flowed from the initial 60-day police detention which itself was declared unlawful.

However, the decision failed to secure freedom for Nasharuddin who was re-arrested upon his ''release'' at the Kamunting Detention Camp the next day.

Police whisked him away in an unmarked vehicle without allowing him to meet his lawyers and family members who were there with the court order. He was later returned to Kamunting.

Despite the re-arrest, the government, home ministry and the police were still unsatisfied with Suriyadi's decision and filed an appeal to the Federal Court.

Preserve of executive

In his 23-page judgment, Justice Shim said he disagreed with Nasharuddin's counsel that Section 8B of the ISA - which disallow any court to question the use of the minister's discretion under the act - in unconstitutional.

He said that there is no doubt that ISA is "a special piece of legislation " which is designed to stop or prevent subversive actions falls squarely under the ambit of Article 149 of the Federal Constitution.

Shim also said that matters of national security have always been considered by the court to have a "peculiar texture" and they call for special treatment.

"Where matters of national security and public order are involved, the court should not intervene by way of judicial review as these are matters especially within the preserve of the executive," he said.

Shim said even if the court is compelled to intervene, it must first resolve the question of whether the objective or subjective tests applies to the exercise of the minister's discretion, adding that Suriyadi had erred when he failed to resolve the question before concluding that the minister's order was wrong.

He also rejected Suriyadi's ruling that since the police's reasoning for arresting Nasharuddin was bad, therefore the minister's subsequent detention order must necessarily be bad.

"I confess that I am unable to comprehend the rationale behind Suriyadi's statement that "if the roots are bad, surely the fruits too will be bad"," the chief judge said.

National security threat

"If it is meant to be an axiomatic proposition for all purposes, then it cannot possibly be true because one can envisage many situations which do not necessarily fall into such a dogmatic characterisation especially where human conduct and behaviour is concerned."

He said in this case, the minister had relied wholly on the police report and that he was satisfied that the activities of the respondent would pose a threat to the security of the nation.

It is therefore clear that the report related to matters of national security which involved Nasharuddin and the minister was satisfied (from the report) that Nasharuddin's activities threatened the national security.

That satisfaction, the chief judge added, was a subjective decision and, based on precedents and law, is not for the court to question the sufficiency of that decision.