WRIT OF HABEAS CORPUS

Rights without remedies are like lights that do not shine and

fires that do not glow.

The safeguards for personal liberty in Article 5(1) are strengthened by the

provision for a remedy in Article 5(2).

The Constitution provides that “where a complaint is made to a High Court or any

judge that a person shall inquire into the complaint and, unless satisfied that

the detention is lawful, shall order him to be produced before the court and

release him”.

Habeas corpus

• The writ requires a person having custody of a prisoner to bring him before the court together with the grounds for his detention.

The detaining authority must then explain to the court the reasons for the

detention.

If the reasons are “not in accordance with law”, the court has the duty to order the

detainee to be released.

The burden of proving that the detention is in accordance with law

is, in the first instance, on the detaining authority: Re Tan Sri Raja

Khalid Raja Harun (1988).

This burden is discharged simply by producing the detention order.

The onus then shifts to the detainee, especially if he alleges bad faith:

Karam Singh (1969).

A person released on habeas corpus can sue for damages for the period during which he suffered unlawful

imprisonment.

Legal basis:

• The legal basis for habeas corpus in Malaysia is Article 5(1) and 5(2) of the Constitution.

• In addition, there are statutory provisions in section 25(2) of the Court of Judicature Act 1964 (along with clause 1 of the Schedule) and section 365 of the Criminal Procedure Code.

These statutes are, however, subject to Article 5(2) of the supreme

Constitution and any requirements or restrictions must not diminish the

constitutional guarantee.

Who may apply?

• The application of habeas corpus can be made by the prisoner himself or by someone else on his behalf: Theresa Lim Chin v IGP (1988).

The rule of locus standi is lenient when it comes to an application for

habeas corpus.

The remedy is available to citizens as well as non-citizens.

Scope:• Besides securing the release of anyone

who has been arrested or detained unlawfully, habeas corpus can be applied for to secure bail or obtain an expeditious trial.

The applicant need not be in physical custody. If his movements

have been restricted, the situation is germane for the writ.

In India, UK and Malaysia, habeas corpus can be used to challenge the terms and conditions of bail if the

amount of surety required is excessive or other pre-conditions result in serious consequences for

the liberties of the accused: Tan Hock Chan v Menteri (1994).

This liberal approach is in contrast with the Singapore decision in Re Onkar Shrian (1970) that habeas

corpus is not available to anyone who is free on bail.

Another contrast with Singapore is that in the Lee Mau Seng case in the Republic, it was held that the writ is

not an appropriate remedy for denial of right to counsel.

Malaysia discarded this view in 2001 in Abdul Ghani Haroon.

However, there are some unhelpful verdicts. In Teoh Yook Huwah (1993) where the detainee alleged that he had been assaulted, and in Lau Lek Eng (1972) where the manner and condition of detention were alleged to be oppressive, habeas corpus was

refused.

The Federal Court in Ketua Polis Negara v Abdul Ghani Haroon (2001) interpreted Article 5(2) in a literal, pedantic manner to hold that the detaining authority has no duty to

produce the detainee in court unless the court is satisfied that the

detention is tainted with illegality.

This decision does grave injustice to the proud history of habeas corpus in

all common law jurisdictions.

Remedy of right:• Unlike the other remedies of

administrative law, like certiorari, prohibition, mandamus, injunction, declaration and quo warranto, habeas corpus is a remedy of right for anyone detained unlawfully.

The court has no discretion to refuse habeas corpus if the detention was,

at its inception, unlawful or has become unlawful due to subsequent

non-compliance with the law: Andrew v Supt. Pudu Prisons (1976) and Tan

Boon Liat (1977).

The existence of an alternative remedy like appeal or the right to

make representation to an advisory board under Article 151 is not a bar to the writ: Yeap Hock Seng v Min (1975)

Issues:

• The crucial issues in granting habeas corpus are whether life and personal liberty were deprived and whether this deprivation was “in accordance with law”.

Hundreds of situations may amount to deprivation “not in accordance with

law”.These may be categorised under three

broad heads of ultra vires in administrative law – illegality of

substance, illegality of purpose and illegality of procedure.

Illegality of substance

• If a detention order suffers from substantive ultra vires, excess of jurisdiction or lack of jurisdiction, the writ can issue.

Illegality of substance can result in many ways, for instance if the law

under which the impugned action was taken is unconstitutional or ultra vires:

Teh Cheng Poh v PP (1979), if the Sarawak law that is employed is not

applicable to the territory (West Malaysia) where the detainee is being confined: Re Datuk James Wong Kim

Min.

The courts may grant the writ if the detainee is not subject to the law; for

example, where a juvenile is tried under a law which does not apply to

him: Supt. Wong Cheng Ho (1980); where the detention exceeds the

dates on the detention order: Yit Hon Kit (1988);

where a person detained as an illegal immigrant had in fact entered the country lawfully: Lau Seng Poh (1985)

and where the law required the satisfaction of the minister but his deputy had signed the detention

order: Sukumaran (1995).

Illegality of purpose:

• This is also referred to as abuse of power, bad faith, wrong purpose, unreasonableness, arbitrary exercise of power and lack of evidentiary basis.

Some examples are where immigration law permitting detention

for purpose of removal is used to detain an illegal immigrant for eight

years: Lui Ah Yong (1977).

If the grounds for detention are not relevant to the object of the law: Tan Sri Raja Khalid (1988) and Jamaluddin

Othman (1989);

if there was no material evidence to make a rehabilitation order under the

Misuse of Drugs Act: Daud Salleh (1981).

Judicial review on this ground is, however, ineffective for cases under

the Internal Security Act and the Restricted Residence Enactment.

The courts are generally not prepared to question the bona fides

of a detention/restriction order.

The sufficiency of the grounds is to be decided by the executive, not the

judiciary.

The test is subjective, not objective: Lim Say Hoe (1995).

There are exceptions, however.

In a celebrated judgment Justice Hishamudin held that the conduct of the police in refusing the detainee his right of access to a lawyer and visits

by his family constituted mala fide: Abdul Ghani Haroon (2001).

Illegality of procedure:

• The doctrine of procedural ultra vires requires that power must be exercised in accordance with mandatory procedural requirements.

In Tan Boon Liat (1977), the time limit of Article 151 was violated.

In Tan Hock Chan (1994), an extradition case, the requesting country was not a party to the

treaty.

The pre-conditions for the detention order were not met.

In Puvaneswaran (1991), only one copy of the grounds (and not two as

required) was supplied.

In Haji Omar Din (1990), the safeguard of enquiry upon

detention was not met.

In Roshidi (1988), there was failure to give the party an opportunity to make

representations.

In Lim Thian Hock (1993), the grounds were supplied in the alternative.

In Yit Hon Kit (1998), there was a delay of 57 days before the detainee

was informed of the grounds of arrest.

Likewise in Abdul Ghani Haroon denial of right to see a lawyer resulted in

judicial review.

In sum, it can be stated that there is vast, unrealised potential in the writ of

habeas corpus to challenge any unlawful detention or restraint on

personal liberty.

No detention is immune from having its legality tested.

The remedy applies even against subversion and emergency laws

enacted under Articles 149 and 150.