The Book of Prof Shad.docx

16 what remedies if any are available to fatimah i

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16 What remedies, if any, are available to Fatimah? i Habeas corpus The government can argue that as Fatimah was already released from her ISA detention it is now too late for habeas corpus in relation to her first arrest and her subsequent detention under the ISA . The present detention is perfectly legal according to a court conviction under the OSA. So habeas corpus must be refused. All arguments relating to the police arrest on 10 June 2012 and the Minister’s Order of Detention on 17 June 2012 are now academic as Fatimah was actually released on 16 June 2014. For the same reason as above, the court should refuse to rule on the constitutionality of section 32(2)(a) of SOSMA. But Fatimah can submit that her first arrest on 10 June 2012 by the police, the subsequent preventive detention order and further arrest under the OSA were all part of the same chain of events and part of the same continuing saga of ill-informed suspicions, shoddy investigations and mala fide actions meant to hide and justify mistakes made by the police. The High Court is not justified in separating and treating as distinct the first arrest under the OSA, the detention under the ISA and the second arrest under the OSA. ii Order of damages. As an alternative to habeas corpus, Fatimah should apply for damages for the violations of her rights under Article 5(1), (3) and (4), specially in relation to the torture, assault and threat of rape, Note the decision of the Court of Appeal in YB Teresa Kok Suh Sim v Menteri (2016) . 9
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HUMAN RIGHTS IN THE FEDERAL CONSTITUTION: PROMISE, PERFORMANCE & PROSPECTS INTRODUCTION This is an age of human rights. Everywhere freedom is on the march (though victories in one area are marred by defeats in others).It is now almost universally accepted that all human beings, irrespective of race or religion or gender are invested with some inalienable human rights which come to them, not from the charity or generosity of the State, but from a “superior source”. To the above assertion of the universality of human rights there are some major disagreements: (i) There is no universal agreement on what this “superior source” of human rights is – is it God, nature, reason, intuition, self-evidence, “facts of human condition”, historical, landmark documents or international treaties? (ii) The “legal positivists” oppose the view that there are ‘natural’ or ‘inherent’ rights. Rights are the children of law. Rights are conferred by the state. “Natural law is nonsense on stilts”. (iii) Q. Which view do you support? Are rights inherent or conferred by the sovereign? What are the consequences of each position? If you support the ‘natural law’ view, you arm yourself with an argument against oppressive laws and dictatorship. You subscribe to a law higher than the law of the state. You lay a claim for implied, non- textual, inherent rights. At the same time you open the floodgates to a “human rights epidemic”. Lots of ordinary and questionable claims are deified as ‘human rights’.
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