The Book of Prof Shad.docx

11 access to lawyer the only order that can be

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11 Access to lawyer: The only order that can be applied for under Article 5(2) of the Constitution and section 365 CPC is to seek release. Prayers for an access to the applicant’s solicitors or for an order that the appellant after being released should not be arrested or detained are outside the scope of habeas corpus. 126 The remedy may lie elsewhere: Sejahratul Dursina. Perhaps certiorari is the more appropriate remedy: Cheow Siong Chin. 12 Unconstitutionality of law: Habeas Corpus cannot be used to test the constitutionality of an Act of Parliament. In Koh Wah Kuan v Pengarah Penjara [2004] 5 MLJ the applicant had argued that section 97 of the Child Act was unconstitutional because it was an intrusion into a judicial power by Parliament. The court held that the issue must be raised under Article 4(3). 13 Sufficiency of grounds : Habeas corpus cannot be used to investigate into the sufficiency of the reasons or grounds relied upon by the detaining authority. Whether there is reasonable cause to detain is a matter of subjective opinion and policy of the executive: Noor Ashid Sakib v Ketua Polis [2002] 5 MLJ 22. 14 Court of coordinate jurisdiction : A court of coordinate jurisdiction cannot review the decision of another court of coordinate jurisdiction: Koh Wah Kuan. 15 Article 121(1A): It is unlikely that the High Court will issue habeas corpus against an illegal Syariah court order. 16 Ouster clause : An ouster clause may exclude judicial review. Such clauses abound e.g. s. 4(1) and ss. 7C and 7D of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 forbid judicial intervention save in regard to any question of non-compliance with any procedural requirement governing the detention. To whom should the writ be addressed to? Who should be the respondent in the application? In Mohamad Ezam Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449 the Federal Court issued the writ despite the detainees not being in the custody of the 126 In Abdul Ghani Haroon v Ketua Polis Negara (No. 4 ) [2001] 6 MLJ 198 HC, the judge sought to impose an order that the police be restarined from re-arresting the applicants within the next 24 hours. 123
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police but in the custody of the Minister who had by then issued a preventive detention order under section 8 of the ISA. But Mohamad Ezam was expressly dissented from in Sejahratul Dursina @ Chomel Abdullah v Kerajaan [2006] 1 MLJ 405. It was held that the writ had to be addressed to the person having actual physical custody of the detainee. See also Kerajaan v Nasharuddim Nasir [2004] 1 CLJ 81. OTHER REMEDIES BESIDES HABEAS CORPUS Habeas corpus is not the only remedy against unlawful detention. A detainee can seek judicial review by way of certiorari to quash a warrant of arrest and detention or to seek a declaration against an order of restricted residence. In Su Yu Min v Ketua Polis Negeri [2005] 6 MLJ 768, a restricted residence order was challenged on the ground that (i) the Minister’s subjective function was exercised by the Deputy Minister and such delegation was illegal, (ii) there was a delay of 22 days between the date of arrest and
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