When the Federal Court acted posthaste this week to overturn a High Court judge's order to produce two detained under the ubiquitous Internal Security Act (ISA) in a habeas corpus petition, it was to reaffirm that in instances where national security is breached, the government must have the right to such harsh, often undemocratic and even illegal measures.

That inherent right should be there, but not to use it, as in the recent ISA arrests, to rein in political opponents of the government.

So, when the dust settles, both the High Court judge in Shah Alam and the Federal Court were right, for different reasons, in their orders.

The Federal Court decision upheld the government's inherent right to act, even unconstitutionally, when national interests are at stake.

Justice Hishamuddin Mohamed Yunus took a more liberal view of the ISA and ordered the police to produce the two detainees in the habeas corpus petition their families had filed.

Predictably, opposition parties and non-gonvernmental organisations (NGOs) took issue with the government on if the ISA should be abolished.

But each looks at its use contentiously, and miss the woods for the trees. So, the heat builds up, and no one is the wiser at the end of the day.

Nation's enemies

What should be clear is that if the ISA is used at all, it should be subject to safeguards so that like what happened last month, when ten critics of the government were arrested, would not take place.

The Home Minister cannot claim he knows nothing about it, as Abdullah Ahmad Badawi did. The use of the ISA is eventually a political decision. It is meant to be used against the nation's enemies.

If any one should be arrested, even for anti-national activities, the police should use existing laws. If the police is convinced he is a national security threat, it must persuade the Home minister to have him arrested under the ISA.

It is impossible to believe Abdullah when he says he did not know of the arrests. He should have. Otherwise, it is dereliction of duty and, in less forgiving societies, reason to be sacked from the Cabinet.

The break-neck speed with which the Federal Court acted, bypassing the Court of Appeal, strengthens the view the ISA circumvents the constitution.

The ISA was once known as the Emergency Regulations, with its harsh provisions that restricted the rights of the individual and was unconstitutional to boot.

No evidence

That was how it was during the Communist insurgency, and invoked on those believed to be in involved in it. Laws of this nature must be in reserve, and invoked only for offences for which it was enacted, against national security and for economic crimes so severe that it threatens the nation's stability.

Its use implies a threat to national security. It should be an objective, not a subjective test, not a belief that he or she is a threat when it is invoked in peace time and when there is no threat to the country.

It is not enough for an embattled government struggling to come to terms with itself in a messy political confrontation to arrest its political opponents under this law.

Nearly 40 days have gone by, and the government has not produced a shred of evidence that the ten detainees are involved in a conspiracy to overthrow the government with arms.

Except when it was used during Indonesia's confrontation with Malaysia, when a cabinet minister was sacked and detained under the ISA, and during the May 13, 1969 riots, when a strong case could be made, all other instances involved normal opposition challenges to the government.

The ISA is misused when it is invoked as now. How could you detain a deputy prime minister under the ISA then beaten up and charged with sodomy and corruption? If Anwar Ibrahim had to be charged for any offence, it should have been for treason.

Constitutional relevance

For that is only how the government can justify detaining him under the ISA. That it did capriciously, against him and his supporters, caused it to lose much of its bite.

The Act should be retired and kept in hand for the national emergency which must be met with laws that go outside the constitution.

For the ISA is invoked, like the Emergency Regulations, to circumvent the constitution. Otherwise, how could witnesses give evidence against the accused wearing hoods that the accused do not know who is his accuser.

In times of national emergency, one can make a case for suspending habeas corpus applications. Almost every attempt at invoking the habeas corpus petition during the Communist insurgency failed. And so under the ISA.

But the principles on its use in peace time have not been challenged for its constitutional relevance. Justice Hishamuddin did. The Federal Court had to slap him down, not for whether he did the right thing, but that Malaysia must have a law like the ISA in reserve.

Habeas corpus petitions when the ISA is used in normal times should be allowed, if only to show that it is used wrongly.

The Delhi High Court, in a landmark decision, insisted that the detainee in whose name a habeas corpus petition is invoked must be brought to court for it to be satisfied he is treated as he should be.

After Anwar's black eye, in which the former Inspector-General of Police, no less, assaulted him, it should be standard practice here.