Detainees held under preventive laws are succesful in their habeas corpus applications because the authorities arrest them without sufficient evidence and not because they are exploiting the law, said two lawyers today.

Lawyers P Uthayakumar and RR Mahendran said this in response to Deputy Internal Security Minister Noh Omar's remark that detainees were exploiting the law when claiming freedom based on 'carelessness and technical flaws' in government affidavits against them.

Habeas corpus is a judicial review on the legality of detention.

"The issue here is not that the government is unable to prepare affidavits in time. This excuse cannot be accepted. They must already have the evidence in their hands when arresting the detainees mustn't they? It's just a matter of putting down the iron-clad evidence on paper," said Uthayakumar when contacted.

The lawyer submitted that, in arresting an individual, the authorities must have sufficient evidence to do so and in further detaining the individual - for a remand period of 14 days and up to 60 days - the authorities must prepare a strong case with additional necessary evidence to charge the detainee.

"To start, every person suspected of a crime must be charged in a court of law. He or she is innocent till proven guilty. Allow the due process of law to exist. However this is not done in cases where individuals are detained under preventive laws such as the Emergency Ordinance Act (1969).

"The authorities (often) claim they have enough evidence but why is it not used in a court of law? If it is insufficient to warrant a prosecution then these detainees deserve to be released," added the lawyer, who in the past had numerous run-ins with the police when championing causes against detention without trial and deaths in custody.

The Emergency Ordinance Act is often used to detain suspected criminals. It allows for their detention without trial for indefinite periods of time. Detainees are usually held at the Simpang Renggam detention centre in Johor.

Despite successful habeas corpus applications, a majority of those released are immediately rearrested. Noh Omar is reported to have said that out of the 58 release by the courts this year, 49 were detained again under the same act.

Bleak futures

Contacted in Johor, lawyer RR Mahendran, who is responsible for the release of 38 detainees under the Act, this year, supported Uthayakumar's comments.

He said that re-arresting freed detainees is technically tantamount to contempt of court. Out of his numerous re-arrested clients, 45 having been banished to various districts in the country.

"Those placed under restrictive residence may prefer that than being sent back to jail. However they lead a difficult life as they are required to report to designated police stations every Monday at 8am.

"They are further placed under close police watch and have a curfew whereby from 6pm to 8am they cannot leave their houses," he added.

Apart from this, Mahendran said the futures of these detainees and that of there families were bleak.

"They are often sent to places such as Mersing, Kuala Berang and other places that do not have sufficient job opportunities.

"They spend a lot on legal fees especially with their habeas corpus cases taking years in court. Many have taken mortgages and borrowed money from creditors," he added.

What is more frustrating for them, he pointed out, is that they are rearrested after successful court applications.

"By the time (and if) they come back as free men, it would be difficult to restart their lives. The government should really look into this and do something about it as many families suffer," urged the lawyer.

There are currently 1,300 detainees held without trial in Simpang Renggam with 700 accused of being hard-core criminals.

Repeal the law

The lawyers' submissions have been cited in the past by various human rights activists and anti-preventive laws lobbyists.

In its recent report, the Royal Police Commission also called for the repeal of preventive, impractical and archaic laws such as the Emergency (Public Order and Prevention of Crime) Ordinance Act 1969.

As for the current practise, Uthayakumar urged the government - if it remained adamant on using these laws - to resort to them only after all legal avenues have been exhausted.

"The use of the Act leads to many abuses. Look at the case of S Tharmarajen,19, who died in detention while being held without trial. How was this young boy a threat to national security? Was his prolonged detention warranted?" he asked.

Tharmarajen died in custody on June 21, 2002. His family claimed that it was due to beatings he suffered while in police custody. Government doctors diagnosed pneumonia or tuberculosis as the cause of death.