The Book of Prof Shad.docx

Confinement within a given parameter and subjection

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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. 6 Inadmissibility of evidence: The writ is not an appropriate remedy for questioning the admissibility of evidence: Re Gurbachan Singh’s Appeal [1967] 1 MLJ 74 7 Delay in trial : 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. 8 Extradition cases: 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, Article 5(3) of the Constitution applies so as to require service of the order. 124 Babu Singh v State of U.P. AIR SC 527 121
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9 Detention abroad: Habeas corpus issues only within the limits of the Federation. A court will not entertain an application for habeas corpus if the detainee is outside the Federation. 10 Expired detention order : The writ must be directed against the current order of detention. The writ will not issue if the impugned order has already come to an end and been replaced by a subsequent valid order. In Muhd Faizal Haris v Timbalan Menteri [2006] 1 MLJ the appellant had been arrested for investigation under s. 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA). His detention in police custody was further extended under s. 3(2). A report of investigation was submitted to the Ministry under s. 3(3) and a report of the inquiry officer was submitted under s. 5(4). On consideration of these, the minister issued a Detention Order (DO) under s.6(1). The appellant argued that there were irregularities in the arrest and detention under s. 3(2). The question before the court was whether a valid detention under s. 6 would be vitiated by prior irregularities in his arrest and detention under s. 3. In a very significant decision that whittled down the protection of Article 5(1) and (3), the Federal Court held that irregularities of the earlier arrest are irrelevant unless the previous arrest was a condition precedent to the making of a subsequent detention. The precondition to the exercise of jurisdiction under section 6(1) is only a consideration of the report of investigation. There is no
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