APPELLANT’S WRITTEN SUBMISSION

May it please this honourable Court,

This is the Appellant’s Outline Submissions filed in relation to the appeal

against the Learned High Court Judge’s decision on 22.02.2012 in dismissing

the Appellant’s application for a writ of habeas corpus.

1. Background

1.1On 4.2.2012, on the birthday of the Prophet Muhammad, Saudi Arabian

Al-Bilad newspaper columnist and blogger Hamza Kashgari, the

Appellamt, 23, tweeted the following in Arabic:

“On your birthday, I will say that I have loved the rebel in you, that you’ve

always been a source of inspiration to me, and that I do not like the halos

of divinity around you. I shall not pray for you,”

“On your birthday, I find you wherever I turn. I will say that I have loved

aspects of you, hated others, and could not understand many more,”

“On your birthday, I shall not bow to you. I shall not kiss your hand. Rather,

I shall shake it as equals do, and smile at you as you smile at me. I shall

speak to you as a friend, no more,”

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1.2The twitter comments which had allegedly insulted Islam and the

Prophet Muhammad quickly attracted condemnation, death threats and

declarations that the Appellant had become an apostate. The Saudi

Arabian Council of Elders condemned the Appellant and requested that

he be put on trial and King Abdullah also issued an arrest order.

1.3The Appellant published a similar poem on the Prophet a year ago in

his blog “Flock of Swallows” (15.2.2011) without any incident. The

Appellant belongs to a group of emerging young pro-democracy

activists who among others had supported the Arab Spring.

1.4A few days before the Appellant fled Saudi Arabia, the police stopped

him and his friends from organizing a series of forums on the Syrian

uprising. The Appellant was also monitored by the Saudi intelligence

some 8 months prior to his fleeing.

1.5 On 5.2.2012, the Appellant deleted the tweets. On 6.2.2012, the

issued an apology and fled Saudi Arabia to Jordan.

1.6On 7.2.2012, the Appellant flew to Malaysia and met up with his

blogger friends, a Malaysian and two Arabs.

1.7On 9.2.2012, he was arrested by the Malaysian police at the Kuala

Lumpur International Airport (KLIA) while trying to board a plane to

New Zealand to seek political asylum and not upon arrival in Malaysia

as claimed by the Malaysian authorities.

1.8On 10 Feb, Home Minister Hishamuddin Hussein released a press

statement stating that the Appellant was arrested on 9.2.2012 at the

KLIA airport at the request of Saudi Arabia.

1.9Police spokesperson Ramli Yoosuf was widely reported as stating that

“Kashgari was detained at the airport upon arrival following a request

made to us by Interpol after the Saudi authorities applied for it.”

[ 3 ]

1.10 On 10.2.2012, the Appellant’s solicitors sent a letter dated

10.2.2012 to the Inspector General of Police and further upon advice,

another letter dated 11.2.2012 to the police counter terrorism

department to acquire access to the Appellant. The solicitors failed to

get access to the Appellant.

1.11 On 12.2.2012, the Home Minister released a press statement

stating that the Appellant will be deported to Saudi Arabia.

1.12 On 12 Feb at about 1.45pm, the Appellant’s solicitors obtained

an interim injunction from the High Court to prevent his deportation until

his habeas corpus application is filed and heard.

1.13 The Appellant’s solicitors raced to two airports, Subang and

KLIA as they were unsure where he will be deported from.

1.14 The Appellant’s solicitors checked with the immigration

authorities at both airports but could not find any electronic records that

the Appellants had been deported.

1.15 The KLIA immigration officers however informed the Appellant’s

solicitors that the Appellant had been deported by the police at around

noon without passing through the usual immigration channels.

1.16 On 13.2.2012, the police wrote to the Appellant’s solicitors

stating that the Appellant was deported on 12.2.2012 at 12.10 pm on

the ground that his social visa pass had been cancelled by the

immigration authorities.

1.17 On 13.2.2012, the Home Minister and the police in a press

conference alleged or insinuated that the Appellant is a “criminal” or

“terrorist” wanted by his home country. They backtracked on Interpol’s

involvement after the agency had denied requesting Hamza’s arrest.

The minister also denied knowing about the court order.

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1.18 On 13.2.2012, the Appellant’s solicitors filed the application for

writ of habeas corpus application.

1.19 On 22.2.2012, the application was dismissed as the court held

that the application is academic.

1.20 The Appellant’s application to cross examine the immigration

officers who affirmed the affidavits on behalf of the authorities was also

dismissed by the court.

1.21 The Appellant now appeals to this honourable Court against the

decision of the learned High Court Judge.

2. Notice of intention to cross examine the deponents.

2.1O.38 r(2)(3) of the Rules of the High Court 1980 states that:-

“In any cause or matter begun by originating summons, originating motion

or petition, and on any application made by summons or motion, evidence

may be given by affidavit unless in the case of such cause, matter or

application any provisions of these rules otherwise provides or the Court

otherwise directs, but the Court may, on the application of any party, order

the attendance for cross examination of the person making any such

affidavit, and where, after such an order has been made, the person in

question does not attend, his affidavit shall not be used as evidence

without the leave of the Court”.

2.2 In Choo Kim San v Malaysia Borneo Finance Corpn (M) Bhd & Anor

[1975] 1 MLJ 37 the Court held that:

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Having regard to the provision of Order 38 rule 1, I am of the view that

order for the attendance of a deponent for cross examination can be

granted by the court on oral application of any party to the proceedings

after Notice of Intention to cross-examine deponent has been served.

2.3In Lee Sew Kai v Menteri Dalam Negeri, Malaysia & Ors [1990] 1 MLJ

42, the Court held:

The arresting officer’s affidavit in respect of the arrest, viewed in the

light of the applicant’s wife’s affidavit, could not stand on its own.

Several questions arise that needed answering, in order to determine

who is telling the truth.

2.4 In Yit Hon Kit v Minister of Home Affairs, Malaysia & Anor [1988] 2 MLJ

638 the Court held that:

Habeas corpus, challenged the validity of detention order and detention

thereunder, not informed of the grounds of arrest, court allowed

application to cross examine police officer who affected arrest based

on instructions.[para C-D page 646]

2.4In Chen Chi Yong v Siti Zaharah Abang Hj Husaini & Ors [1998] 6 MLJ

577, the Court in deciding the application to cross-examine the

deponent held that:

In the light of the evidence before the court, the deponent appeared to

have uttered an untruth in his sworn affidavit. Whatever the intention or

motive that he might have, it could only be ascertained at the proposed

cross-examination.

[ 6 ]

2.5 In Lim Yik Ying v Liang Yung Piao & Anor [1999] 4 CLJ 589, the Court

of Appeal held:

Be that as it may, while we appreciate the differences encountered by

the learned judge on the conflict of facts in the affidavits of both parties,

the matter can be resolved by resorting to O. 38 r. 2(3) of the Rules of

the High Court 1980. The burden of proving lawful justification is on the

respondents (see Yeap Hock Seng v Minister of Home Affairs

Malaysia, supra, at p. 282). It is then for the respondents to urge the

court to invoke its discretionary power under O. 38 r. 2(3) and apply to

the court for cross-examnination of the appellant on her affidavits

where the facts deposed therein are disputed (see Gomez v. Gomez

[1969] 1 MLJ 228). The appellant may likewise do the same. However

both parties failed to do so. After all s.366 of the CPC provides for

affidavit evidence for such an application.

2.6In Abdul Halim bin Abdul Hanan v Pengarah Penjara, Taiping [1996] 4

MLJ 54, the Court held:

But even assuming that the affidavit in support is not irregular and can

be accepted for what it is worth, the plaintiff’s summons would still have

to be dismissed as the opposing claim of the parties in their respective

affidavits as to what actually transpired has led to a stalemate which

could only be resolved if the deponents appear to be examined and

cross-examined as in a writ action.

2.7 In Reg. v. Home Secretary, Ex p. Khawaja (H.L.(E.) 1984 1 AC 74.

There is no doubt that procedural means exist, whether under the head of

habeas corpus or of judicial review, for findings of fact to be made, by the

use of affidavit evidence or cross examination upon them or oral evidence.

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There is no doubt that, questions of liberty and allegations of deception

being involved, the court both can and should review the facts with care.

3) Application for habeas corpus is not academic as there’s live issue.

3.1 In Metramac Corporation Sdn Bhd v Fawziah Holdings Sdn Bhd [2006]

3 CLJ 177, the Federal Court held:

The test in deciding whether an appeal has become academic is to determine

whether there is in existence a matter in actual controversy between the

parties which will affect them in some way; if there is, the appeal cannot be

said to be academic. In this instance, there could be no dispute that if the

appeal was ruled to be academic, it would seriously affect the undertaking in

damages given by the respondent. It was, therefore, clear that it was the

appeal that would determine whether the orders ought not to have been

granted in the first instance in order to enable the applicant to proceed further

with the issue of the undertaking for damages. It followed that the fact that the

orders had been dissolved could not render the appeal academic. The

corollary was that the preliminary objection raised by the respondent was

devoid of any merit whatsoever. (paras 7, 8 & 9).

3.2 In Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals

[2002] 4 CLJ 309, in addressing the preliminary objections that the appeal

was no longer a living issue and purely academic held:

As for the first preliminary objection, he stressed that since the second

appellant had been released, his appeal was no longer a living issue and was

purely academic. As for the second preliminary objection, he reiterated that

the other four appellants were no longer under police custody as the Minister

had ordered them to be detained under s. 8(1) of the ISA with effect from 2

June 2001. This undisputed fact makes mockery, he said, of the fact that the

applications for habeas corpus are directed not against the Minister but

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against the Inspector General of Police (hereinafter “the IGP”) as the

respondent. Since they were no longer under police custody under s. 73 of

the ISA, he added, the appeal has been rendered academic. The appropriate

course of action, he suggested, was to file a writ of habeas corpus against the

Minister.

Reference was made to Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v.

Karpal Singh [1992] 1 CLJ 36; [1992] 1 CLJ (Rep) 212 and Re P.E. Long @

Jimmy & Ors; P.E. Long & Ors. v. Menteri Hal Ehwal Dalam Negeri Malaysia

& Ors [1976] 2 MLJ 133 to buttress his arguments.

In reply, Sulaiman Abdullah for the appellants submitted that as regards the

first issue, the second appellant is facing a High Court order declaring his

detention to be lawful and should he decide to take civil proceedings, the

parties would remain the same and it could amount to res judicata.

All previous habeas corpus cases had decided that s. 73 and s. 8 of the ISA

were inextricably linked. The Minister, he argued, made the order under s. 8

based on the police investigations while the appellants were being detained

under s. 73 of the ISA. The validity of the High Court decision was therefore a

live issue.

3.3 In R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1

CLJ 147, the Federal Court held:

In this context, it is pertinent to note that the jurisdiction of the Courts in

Malaysia to issue prerogative orders is derived from the prerogative

jurisdiction inherited from English decisions as well as from statute. The

Courts of Judicature Act 1964, by s. 25 read with para. 1 of the Schedule

thereto, provides that the power of the High Court, includes “power to issue

to any person or authority directions, orders or writs, including writs of the

nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari

[ 9 ]

or any others, for the enforcement of the rights conferred by part II of

the Constitution, or any of them, or for any purpose” (Emphasis supplied).

The Schedule is entitled “Additional Powers” and this suggests powers over

and above those already enjoyed by the High Court.

Part II of the Federal Constitution deals with the fundamental liberties

guaranteed by Federal Constitution. And, as was correctly pointed out by Sri

Ram JCA when speaking for the Court of Appeal in Hong Leong Equipment

Sdn. Bhd. v. Liew Fook Chuan [1996] 1 MLJ 481, 501: “Quite apart from being

a proprietary right, the right to livelihood is one of the fundamental liberties

guaranteed under Part II of the Federal Constitution.”

It is obvious that para. I of the Schedule to Courts of Judicature Act 1964, is

generally in pari materia with Article 226(l) of the Indian constitution which

provides:

Notwithstanding anything in art 32, every High Court shall have power,

throughout the territories in relation to which it exercises jurisdiction, to issue

to any person or authority, including in appropriate cases any government,

within those territories, directions, orders or writs, including writs in the nature

of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any

of them, for the enforcement of any of the right conferred by part III and for

any other purpose.

Part III of the Indian Constitution corresponds to Part II of our Federal

Constitution which, as I have said, provides for the fundamental liberties.

There are dicta in a wealth of Indian case law, the effect of which is, that the

powers of the High Court conferred by Article 226 are not limited to issuing

prerogative writs but extends so far as to enable the Court to issue any

appropriate order or direction. (See for example, Jashingbhai v. Dist.

Magistrate, Ahmedabad, [1950] AB 363, 52 Bom. LR 544; Ramcharan v. UP

[1953] 1 All 251, (52) AA 752; Prabhawati Devi v. Dist. Magistrate, [1952] AA

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836; Chhotabhai Jethabhai Patel & Co. v. Union [1952] Nag. 156; Amardas v.

Pepsu, [1953] Pep. 63; Krishnankutty v. Trav. Cochin, [1951] A. Tr. C. 197; B.

Parraju v. Gen. Manager, BN Rly, [1952] A Cal.61). Though these dicta are in

the nature of general observations they cannot be disregarded out of hand.

There are also lndian Supreme Court authorities which strongly support the

proposition that the power of the Courts there, in the field of public law

remedies, is not limited, as in England, but much wider, so much so, that in

certain circumstances, they have the power to review the decision of the

authority on the merits and mould the relief according to the exigencies of the

situation in order to satisfy the insistent demands for justice. (See for

example, State of Madhya Pradesh v. Bhailal Bhai AIR [1964] SC 1006;

Dwarka Nath v. Income Tax Officer, AIR [1966] SC 81; Baldeo Prasad v.

Commissioner Jhansi Division [1967] 63 ITR 555; Hindustan Steel Ltd.

Rourkela v. Roy AK AIR [1970] SC 1401, 1407; Variety Emporium v. Mohd

Ibrahim AIR [1985] SC 207, 210).

To interpolate, I should like to make separate reference to a recent landmark

judgment of the Indian Supreme Court in Nilabati Behera [1993] (2) SCC

504, which shows that the reach and extent of the Court in judicial review

proceedings, arising from a violation of a fundamental right, extends to the

making of an award of monetary compensation against the State, even

though the Indian Constitution does not provide for the payment of

damages or monetary compensation in such a situation, thus over-riding

the principle of sovereign immunity. In so holding, the Court had laid stress on

the point (at pp. 762, 763) that this remedy was ‘distinct from, and in addition

to, the remedy in private law for damages for the tort resulting from

contravention of the fundamental right’ for which a regular writ action could be

commenced, in which event, as Soli J. Sorabjee has observed, in his article

aforesaid, the matter may hopefully be decided after a couple of decades.

What appeared to be in the forefront of the Court’s mind was to ensure

prompt redress by an award of monetary compensation to the aggrieved party

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or his family. In the picturesque phrase of the Court, to hold to the contrary

would “render the Court powerless and the constitutional guarantee a mirage”.

3.4 In Tun Datuk Haji Mustapha bin Datuk Harun v State Legislative

Assembly of Sabah & Anor [1993] 1 MLJ 26, the Court held:

I am inclined towards Lord Denning wen he said in R v Hosrsham Justices, ex

p Farquharson & Anor, thatit would be a grave lacuna in our system of public

law if a group or even a single public-spirited taxpayer were prevented by

outdated technical rules of locus standi from bringing the matter to the

attention of the court to vindicate the rule of law and get the unlawful conduct

stopped. In other words, it should suffice if the plaintiff has some genuine

interest in having his legal position declared even though he could get no

other relief.

-Iqbal TAG I

4) In the event the application for habeas corpus is academic, it may still

be heard in the public interest

4.1 In Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors v

Arasa Kumaran [2006] 4 CLJ 847, the Federal Court held:

The resultant matter for consideration is whether the appeal must still be

heard in the public interest. In considering the circumstances in which a

pending matter which has since become academic may still be heard Lord

Slynn of Hadley said in R v. Secretary of State for the Home Dept, ex parte

Salem [1999] 2 All ER 42 at p 47:

My Lords, I accept, as both counsel agree, that in a cause where there is an

issue involving a public authority as to a question of public law, your Lordships

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have a discretion to hear the appeal, even if by the time the appeal reaches

the House there is no longer a lis to be decided which will directly affect the

rights and obligations of the parties inter se. The decisions in the Sun Life

case and Ainsbury v. Millington (and the reference to the latter in r. 42 of the

Practice Directions Applicable to Civil Appeals (January 1996) of your

Lordships’ House) must be read accordingly as limited to disputes concerning

private law rights between the parties to the case.

The discretion to hear disputes, even in the area of public law, must, however,

be exercised with caution and appeals which are academic between the

parties should not be heard unless there is a good reason in the public

interest for doing so, as for example (but only by way of example) when a

discrete point of statutory construction arises which does not involve detailed

consideration of facts and where a large number of similar cases exist or are

anticipated so that the issue will most likely need to be resolved in the near

future.

The matter before us is not one concerning private law rights. It involves a

public authority and the issues submitted on relate to questions of public law.

The proper interpretation to be accorded to s. 3(3)(a) and (b) of the 1969

Ordinance is of tremendous significance and it will not involve a consideration

of the facts of the case. The question of the applicability of the ratio decidendi

of Mohd Faizal bin Haris to the 1969 Ordinance is of greater importance.

These are issues that will affect existing cases and will arise in the future if

they are not resolved as soon as possible. They must therefore be settled.

The Canadian Courts have heard appeals after the release of detainees in

order to settle important points of law (see Re Marshall and the Queen [1984]

13 CCC (3d) 73 (Ont HC); Cardinal v. Director of Kent Institution [1985] 2

SCR 643; Morin v. National Special Handling Unit Review Committee [1985] 2

SCR 62). We were therefore of the view that public interest requires this

appeal to be heard.

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4.2 R (on the application of Raw) v Lambeth London Borough Council

[2010] All ER (D) 129 (Mar), the Court held:

In my view these statements show clearly that academic issues cannot and

should not be determined by courts unless there are exceptional

circumstances such as where two conditions are satisfied in the type of

application now before the courts. The first condition is in the words of Lord

Slynn in Salem (supra) that “a large number of similar cases exist or

anticipated” or at least other similar cases exist or are anticipated and the

second condition is that the decision in the academic case will not be fact

sensitive.

4.3 In Regina v Secretary of State for the Home Department, Ex parte

Salem [1999] 1 AC 450 the House of Lords held:

On an appeal on an issue of public law involving a public authority the House

of Lords had discretion to hear the appeal even if by the time it was due to

begin there was no longer a lis to be determined directly affecting the parties’

rights and obligations inter se, but that the discretion was to be exercised with

caution, and academic appeals should not be heard unless there was a good

reason in the public interest for so doing.

5. Grounds of Challenge

5.1 In the present case, the Appellant is raising numerous grounds of

challenge in order to show that his arrest and detention are unlawful among

others:-

(i) The detention order dated ….. is unlawful due to the fact that the …

(ii) That the arrest and detention of the Appellant was made mala fide;

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(iii) The fact that the Appellant was deported after…

5.2 Apart from the substantive arguments raised above, the Respondents

also raised a prelimary objection on procedural issues vis-avis the application.

The learned High Court Judge apart from dismissinh the application on the

substantive areguments had also allowed the preliminary objection. The

prelimanry objection raised by the Respondents is that the learned High Court

Judge has no jusrisdiction to entertain the application made by the Appellant

because he is no longer under the custody of the …. As he was ordered to be

deprted under…

6. Preliminary objection

6.1 In dealing with the preliminary objection raised by the Respondents,

the High Court Judge dismissed the application for writ of habeas corpus as

the Appellant was no longer under the custody of the Respondents as he was

deported to Saudi Arabia by the Respondents and held that the application is

academic.

6.2 It is our submission that the learned High Court Judge erred in fact and

in law when her ladyship allowed the preliminary objection raised by the

Respondents despite the fact that there’s live issue that needs to be decided

by the court.

6.3 We further submit that, in the event the Court finds that the

apploicatiobn for writ of habeas corpus is academic, the application can still

be heard on the ground of public interest.

7. Substantive arguments:jurisdictional threshold

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7.1 For any arrest and detention under…, the arrest, detention and

deportation under section 56(2) of the Immigration Act 1959/63…pre

requisite..

Conclusion

For the reasons enumerated above, it is our submission that the arrest,

detemtion and deportation of the Appellant under section 56(2) of the

Immigration Act 1959/63 are unlawful.

Dated 27th day of April 2012