CONSTITUTIONAL LAW II

QUESTION 9 : UNDER WHAT CIRCUMSTANCES

HABEAS CORPUS IS IMPORTANT AND RELEVANT AS A
CONSTITUTIONAL REMEDY AND EXPLAIN RELEVANT
PROVISIONS RELATING TO THIS PREROGATIVE WRIT
Prepared by : 1. Nurul Syaqira Bt. Zairul Azman (244351)
2. Syafinaz Binti Idrus (244653)
3. Shahirah Binti Md Shuhaimi (244217)
4. Kiroshini A/P Balakrishnan (244297)
5. Nur Adila Hayati Binti Muhd Razak (244210)
6. Dahsheeny Paramasvaren (248252)
 INTRODUCTION
THE DEFINITION OF HABEAS CORPUS
If a person is arrested, detained or deprived of
liberty in any way, he has a number of legal remedies
available to him. The most famous of these remedies is
the writ (order) of habeas corpus.
Habeas corpus is a writ for inquiring into the lawfulness
of any imprisonment, detention or restraint. It allows a
detainee to ask the High Court to order the person
detaining him to explain the legal basis for the restraints
imposed.
 The writ of habeas corpus is a legal device
designed to protect an individual citizen from being
detained or imprisoned indefinitely without specific
charges being brought against that individual.
The term habeas corpus translates from the Latin
you shall have the body and allows for judges to
have imprisoned persons brought before the court
to determine if they are being held unlawfully.
MOHD HISHAMUDIN J once said

By virtue of clause (2) of Article 5 of the Federal

Constitution,.the right to apply to the High Court or a writ
of habeas corpus was not a merely legal right, but also a
constitutional right available to any person who
believes that he has been unlawfully detained. Since
the right is a constitutional right, he has every right to be
present in court at the hearing of his application. In other
words, the right to be present is a constitutional right
implicit in clause (2) of Article 5 of the Constitution
 THE ORIGIN OF HABEAS CORPUS
The use of habeas corpus has roots in English common law
dating to the fourteenth century and was made a part of Englands
statutory law in 1679.
American colonial courts issued the writ at common law, and state
governments continued to recognize habeas rights following
independence.
The U.S. Constitution made no explicit provision for the writ,
providing only that The Privilege of the Writ of Habeas
Corpus shall not be suspended, unless when in Cases of
Rebellion or Invasion the public Safety may require it.
 InMalaysia, the remedy ofhabeas corpusis
guaranteed by the federal constitution, although not by
name. Article 5(2) of theConstitution of
Malaysiaprovides that :

"Where complaint is made to a High Court or any judge

thereof that a person is being unlawfully detained the
court 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".
 THE IMPORTANCE OF HABEAS
CORPUS
It has been characterized as the most celebrated prerogative
writ, the most renowned contribution of the English law to
the protection of human liberty and a bulwark against the
arbitrary infringement of the liberty of the subject.
Its purpose is to set free the person who is being subjected to
a detention on the basis that the detention is unlawful.
It is a writ which requires a person detained by the
authorities be brought before a court of law so that the
legality of the detention may be examined.
 It becomes the duty of the Court then to examine the
lawfulness of the detention when the writ is applied
for. The Court has long regarded the remedy of habeas
corpus as a remedy given by the Court in exercising its
power to check administrative actions.
The lawful detention of a person after conviction by a
competent court;
the lawful arrest or detention of a person for non-compliance
with the lawful order of a court or in order to secure the
fulfilment of any obligation prescribed by law.
 WHO HAS STANDING TO
PETITION?
In Malaysia, habeas corpus is a well-known prerogative
writ commonly used in connection with Internal Security
Act (ISA) detention to challenge the legality of the decision.
Such writ can be appealed by anyone or by someone
acting on his or her behalf regardless of nationality. Which
means any person who has a legally justified interest
in the freedom of the person whose liberty is
restrained or who shows some authorization to make
the application.
 AMINAH V SUPERINTENDENT
OF PRISON [1968] 1 MLJ 92
Facts of the case :
Mr. Haron was detained under the Restricted
Residence Enactment. His wife issue a writ of
habeas corpus challenging the detention on the
ground that there had been non-compliance with
Article 5 (3) of the Federal Constitution of Malaysia in
that the detainee had not been informed as soon as
may be of the grounds of his arrest.
 Thus, it is clear that the rule of locus standi for
habeas corpus is lenient. Not only the detainee but
whoever objects to his detention can go to court.
But, if the application for the writ is made in the
prisoners behalf a third person but the prisoner
repudiates the action taken, the writ will be
denied.
 THE SCOPE OF THE WRIT
Habeas corpus is a useful instrument for safeguarding individual
freedom against arbitrary and lawless state action. A petitioner can
apply for habeas review in a large number of situations, such as :

The detaining authority makes an order against a person who is not

subject to its jurisdiction.
The law applied to the case is unconstitutional
The law is not applicable to the detainee
The penalty awarded is ultra vires (in excess of) the powers of the court
The arrest, detention or trial suffered from procedural flaws
There is severe prosecutorial or judicial misconduct resulting in loss of
due process;
A convict claims his constitutional rights were violated at the trial
 SITUATIONS WHERE
HABEAS CORPUS IS
INAPPLICABLE
There are situations where the habeas corpus cannot be used
which are:

- When the person is undergoing a sentence of imprisonment

made by a court of competent jurisdiction
- Lawful arrest on reasonable suspicion of having committed
crime in 24 hours
- Challenge the legality or validity of a trial
- Admission or non-admission of evidence by the trial court
 Even though the appellant's mother had prayed for other orders in her
application, the only remedy that could be applied for under article 5(2)
of the Federal Constitution and section 365 of the CPC was that of habeas
corpus.
Since the court could not, in the circumstances of the case, make the only
order that it could have made;
ie, to release the appellant - for the simple reason that she was not under
detention at the point of time when the court was to make the order
The writ of habeas corpus became nugatory
 SEJAHRATUL DURSINA V KERAJAAN
MALAYSIA & ORS [2006] 1 CLJ 593
Facts of the case :-
The appellant was arrested under section 73(1) of the Internal Security Act 1960
('ISA').
The appellant's mother filed an application pursuant to section 365 of the
Criminal Procedure Code ('CPC') for the issue of a writ of habeas corpus releasing
the appellant.
The application was heard on 4, 7 and 12 June 2002, a period during which the
appellant was still under detention under section 73(3) of the ISA.
On 12 June 2002, the High Court fixed the date of the case's decision on 14 June
2002.
On the same date, the Minister, in exercise of the powers given to him by virtue
of section 8(5) of the ISA, issued a restriction order against the appellant.
 On 14 June 2002, just before the learned High Court judge delivered her
decision, she was informed that the appellant had been placed under a
restriction order issued on 12 June 2002.
The learned High Court judge dismissed the application on the ground
that the application for habeas corpus was no longer maintainable as the
appellant was no longer under detention.
The learned High Court judge, in the event she was wrong in so holding,
also dealt with the grounds of the application and found that they were
without merits.
Hence, the present appeal by the appellant to this court.
The appellant argued that;

- The material date to be considered for the purpose of deciding the

legality of an order of detention in a habeas corpus application was
not the date of the decision but the date of the hearing

- There should not, or could not, be a separation of the date of

hearing from the date of the decision.

- The date fixed for a decision in fact forms part of the hearing; the
hearing of an application certainly includes the decision thereof
 HABEAS CORPUS AS A
CONSTITUTIONAL REMEDY
Article 5 - Right to Life and Liberty
Every person has a right to life and liberty. A persons life or personal liberty cannot
be taken away unless it is in accordance with law. The courts have said that the right
to life includes aright to livelihood and quality of life, while the right to liberty
includes the right to privacy.
A person who is arrested or detained:-
must be informed as soon as possible of the grounds of the arrest.
has the right to consult and be defended by a lawyer of his/her choice.
must be brought before a magistrate within 24 hours and cannot be detained
further unless it is with the authority of the magistrate, known as a remand order.
 HABEAS CORPUS AS A
CONSTITUTIONAL REMEDY
Article 5 (1) read with Article 5(2) of the Federal
Constitution guarantees the right to writ of habeas corpus.
This provision refers to the detainees right to apply for habeas
corpus which has its roots in the English common law.
Article 5 (2) where complaint is made to a High Court or
any judge thereof that a person is being unlawfully detained
the court 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.
 By virtue of Article 5(2), the right to apply the writ of habeas
corpus was not a merely legal right but also a constitutional right
available to any person who believes that he has unlawfully
detained.
However, in a matter of fundamental and important as the liberty
of the subject, strict compliance with statutory requirements must
be observed in depriving a persons liberty.
When parliament passes a subversion law, it will suspend Article 5
automatically. Therefore, the rights of life and liberty of person is
totally gone even there is still Common Law to protect the peoples
right through habeas corpus.
 Article 5(3) of the Federal Constitution can be divided
into 2 limbs.
First, it gives right to an arrested person to be informed as
soon as maybe of the grounds of his arrest.
The grounds must already be in existence at the time a
person is arrested.
Secondly, Article 5(3) states that every arrestee shall be
allowed to consult and be defended by a legal practitioner
of his choice.
 Article 5(4) of the Federal Constitution provides rights of an
arrested person to be produced before the magistrates
within hours.
This to ensure the detainee has not been subject to cruelty.
This is only applicable toward the citizens while for non-
citizens, the period is extended to 14 days.
However, there are exceptions where detainees under
restricted residence law are excluded from this benefit under
Article 149 and 150 of the Federal Constitution.
 ABDUL MALIK BIN HUSSIN V BORHAN
BIN HAJI DAUD & ORS [2008] 1 MLJ
368
Facts of the case :
The plaintiff is claiming against the defendants for
damages for the tort of false imprisonment as well as for
the tort of assault and battery. The plaintiff was arrested
without warrant by the police and was subsequently put
to verbal abuse and physical assault.
The police also entered his house without warrant and
took away several documents and items.
Issue of the case :
Whether the applicant was deprived of his right to be informed on
which grounds of his arrest.
Court held :
The court held that the detention was unlawful as it breached Article
5(3). Even though the defendants argued that he has informed the
plaintiff of the reason but the court held that it was not sufficient.
However, The court grant the plaintiff Habeas Corpus and apart from
costs the court awarded the plaintiff damages for RM 2.5 million.
 THAMILVANEN A/L KANDASAMY V
TIMBALAN MENTERI KESELAMATAN
DALAM NEGERI, MALAYSIA & ORS
[2007] 5 MLJ 771
Facts of the case :
The applicant wanted to challenge the validity of his detention order
dated 22 April 2004 made by the Deputy Minister of Internal Security
under the Emergency (Public Order and Prevention of Crime) Ordinance
1969 on grounds of procedural non-compliance. His detention however,
commenced from 25 April 2004.
The applicant contended that the Minister had failed to provide an
explanation for the delay in the date of commencement of the detention
order. Further, there had been breach of arts 5(3) and 151 of the Federal
Constitution namely, that the applicant was deprived of his entitlement to
representation during the advisory board hearing and was deprived to his
right of a fair hearing during the advisory board, respectively.
Issue of the case
Whether the applicant was deprived of his entitlement to
representation during the advisory board hearing in breach
of art 5(3) of the Federal Constitution.

Court held
The applicant had succeeded in establishing procedural
non-compliance and therefore this application is allowed
and a writ of habeas corpus issued.
 COURT HELD
The appeal was dismissed.
Reason: Per Abdul Hamid Mohamad FCJ:
A writ of habeas corpus is only available to a person who is being
physically detained unlawfully.
He must be in actual custody.
A person subjected to a restriction order is not being physically detained,
imprisoned or in custody and as such, a writ of habeas corpus is not
available to him.
In the instant appeal, it was clear that the appellant, being a restrictee
rather than a detainee, could not avail herself of the writ of habeas
corpus.
CONCLUSION