The Book of Prof Shad.docx

As the prisoner is in prison pursuant to a lawful

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as the prisoner is in prison pursuant to a lawful order, the conditions, if unlawful, under which the imprisonment is being carried out do not matter. A lawful detention that commences as a perfectly legal detention can become unlawful if it is carried out improperly. Though these laudable statements were obiter because in the end the judge found that no rules had been violated and habeas corpus was refused, Gengadharan JC’s views surely reflect the human rights temperament of the age. When a court orders imprisonment and imposes a penalty authorized by the law, any other punishment or ill- treatment that is not legally sanctioned is surely a violation of Article 5(1). As in the Singapore case of Re Onkar Shrian [1970] 1 MLJ 28, in Malaysia too habea s corpus is generally not available to anyone who wishes to question the refusal of bail or the terms of bail. The judicial view is that a person on bail is not in actual custody and therefore not eligible for habeas corpus. However, in the UK and India 27 , these are grounds for the writ and rightly so because interference with personal liberty is involved. The writ is only available to a person who is being physically detained unlawfully. Most unsatisfactorily the courts have held that a person who is under an order of restricted residence could not avail himself of the writ: Cheow Siong Chin v Menteri [1986] 2 MLJ 235; Sejahratul Dursina @ Chomel Abdullah v 25 See also Sukumaran s/o Sundram [1995] 2 MLJ 247; Mohd Amin Mohd Yusoh [1995] 1 CLJ 94 . 26 But for a contrary approach in India see Sunil Batra (No. 2) v Delhi AIR 1980 SC 1579 27 Babu Singh v State of U.P. AIR SC 527 31
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Kerajaan [2006] 1 MLJ 405. Confinement within a given parameter and subjection to police supervision do not amount to denial of liberty: [1985] 2 MLJ 95 and [1988] 1 MLJ 432! The restraint imposed by reason of an order of restricted residence did not constitute detention of such a nature as to attract habeas corpus. It was held that the court cannot order the release of a person who is not under detention. A welcome departure from the above view is the Restricted Residence Enactment case of Ng Chai Yang [1994] 2 MLJ 336. The writ is not an appropriate remedy for questioning the admissibility of evidence: Re Gurbachan Singh’s Appeal [1967] 1 MLJ 74 The writ does not lie to question delay in the holding of a trial. In India this is a ground for habeas corpus: Hussainara Khatoon (No. 1) v Home Secretary AIR 1979 SC 1360. In an extradition case the court held that habeas corpus will not issue even if the applicant alleges that it would be “unjust or oppressive” to return him to the country seeking his extradition: Set Kon Kim [1984] 1 MLJ 73. The writ will not be issued on the ground that (i) a person under an order of removal under the Immigration Ordinance was not given any hearing before the issuing of the detention order, and (ii) the detention order had not been served on the detainee: Andrew v Superintendent of Prisons [1976] 2 MLJ 156. The court held that as Section 34(1) did not require any hearing or service of the order, these were not necessary! It is submitted that even if section 34(1) of the Ordinance is silent on service of the order,
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