The Kuala Lumpur High Court today said it would deliver its judgement on the habeas corpus applications of two alleged Jemaah Islamiah members before their Internal Security Act (ISA) detention orders expire next February.

Justice Heliliah Mohd Yusof said she would inform counsels by early February if she is able to complete her written judgement when deciding on the applications of Ahmad Yani Ismail and Abdul Samad Shukri Mohamad whose detention orders expire on Feb 22.

"I will try to (decide) by then. If time is a constraint, I will give a decision with a broad proposition first but I will then take time to give a proper and reasoned judgement," she said after hearing the closing arguments by the applicants' lawyers.

Heliliah had made her pronouncement in response to a request by the detainees' counsels for a decision on the application to be made before their detention orders lapse so as to ensure that the hearing would not be rendered futile by either the release of the duo or by the extension of their detention.

In addition to establishing the legality of the detainees' detention, the High Court's decision could also serve as a test case for future habeas corpus applications by other ISA detainees held on similar grounds.

Both Ahmad Yani and Abdul Samad have been detained since Dec 29, 2001, following worldwide investigations into organisations linked to the al-Qaeda network which masterminded the Sept 11, 2001, attacks in the United States.

Initially arrested on grounds that they were involved in the Kumpulan Mujahidin Malaysia (KMM), the police later claimed that the duo were instead members of regional militant group Jemaah Islamiah.

The detainees have since denied these allegations and filed a joint habeas corpus applications for the detentions to be declared illegal.

Constitutional crisis?

Earlier, Heliliah hinted that she may not accept arguments by counsel Amer Hamzah Arshad (representing the detainees) for the court to declare as unconstitutional the ISA provision which excludes judicial review of the home minister's decision.

"The court will still have to consider (the laws) enacted by Parliament. The court cannot disregard that and go on," she said, referring to the controversial Section 8B of the ISA.

The judge said any decision made in question of the validity of the provision may also result in a constitutional crisis.

"The court cannot allow another collision course between the judiciary and the legislature. We have to draw a line somewhere...(Such action) may politicise the position of the court. Courts cannot play a role as the arbiter between the Parliament and the rakyat," she added.

However, Heliliah raised the possibility that the case may be judged based on another argument raised by counsel Edmund Bon, that the use of ISA provisions may be invalid because the government failed to abide by restrictions governing the use of the law.

Bon had said that the home minister failed to comply with the requirements set forth in the preamble of the ISA for the authorities to prove that detainees had acted against national interest and that they will in future take similar actions which could threaten national security.

"It is clear from the reasons stated in the detention orders that the minister had only shown that he had made the orders based on actions taken but not based on possible further actions," he told the court.

The lawyer said the non-fulfillment of the latter requirement would hence disqualify the respondents from relying on the ouster clause in the ISA which prohibits judicial review of the home minister's decisions.

On Monday, deputy public prosecutors representing three respondents - the inspector-general of police, the home minister and the government - had asked the court to refrain from executive decisions pertaining to national security issues.

The public prosecutors also upheld the validity of the ISA provision excluding judicial review, saying that several amendments of the Federal Constitution and the law has made consistent with other constitutional guarantees such as the right to trial.