The Book of Prof Shad.docx

In malaysia the scope of the writ is narrower but it

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In Malaysia, the scope of the writ is narrower but it can be used to challenge the terms and condition of bail if the amount of surety required is excessive or other pre-conditions result in serious consequences for the liberties of the accused. In Lee Mau Seng v Minister [1971] 2 MLJ 137 in the Republic it was held that the writ is not an appropriate remedy for denial of right to counsel. Malaysia discarded this view in 2001 in the admirable High Court decision in Abdul Ghani Haroon (No. 3) [2001] 2 CLJ 709. Grounds on which habeas corpus may be refused: Despite the veneration with which habeas corpus is regarded in many Commonwealth countries, Malaysian courts have interpreted their powers to issue the writ rather narrowly. In many countries, courts order the detainee to be brought before the court during the hearing for the writ. In Malaysia, it has been held that it is not necessary for an applicant to be produced before the court at the very outset. The detainee must be produced only if his detention is adjudged to be contrary to the law. The Federal Court in Ketua Polis Negara v Abdul Ghani Haroon [2001] 4 MLJ 11 interpreted Article 5(2) in a literal, pedantic manner to hold that the detaining authority has no duty to produce the detainee in court unless the court is satisfied that the detention is tainted with illegality. It is submitted 23 For a contrary opinion see Re Choo Jee Jong [1959] MLJ 217 24 Ss 438 and 175 CPC. See Kuan Kwai v Ak Zaidi [1993] 2 MLJ 207 30
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that this decision is gravely wrong. In cases of torture or death in custody, how else can the facts come to light other than by the physical presence of the detainee in court? The decision does grave injustice to the proud history of habeas corpus in all common law jurisdictions. 25 In Teoh Yook Huwah [1993] 1 MLJ 12 the detainee had alleged that he had been assaulted. Habeas corpus was refused. In Lau Lee Eng v Minister [1972] 2 MLJ 4 the manner and condition of detention were alleged to be oppressive. Habeas corpus was denied 26 . In Rajeshkanna Marimuthu v Tn Hj Abd Wahab [2004] 5 MLJ 155 an arrestee under Section 39(B) of the DDA 1952 on a non-bailable, capital charge complained of inhuman, cruel and degrading treatment and conditions of detention. Among other things he complained he was held with another person for 22 hours a day in a cell only 12’ x 5’ feet inclusive of toilet space. The court took note of Madjai Sanusi [2005] 5 MLJ 116, Lau Lek Eng v Minister [1972] 1 LNS, Morgan Perumal v Ketua Inspektor [1996] 3 MLJ 281 that the manner and condition of detention does not alter the legality of a valid order of detention. In departing from the above cases, the learned judge expressed the admirable view that if a prisoner is subjected to cruel treatment he may come to the High Court and move the court to order the prison authorities to stop that treatment. The learned judge implied that habeas corpus is inappropriate at this stage and other remedies are more suitable. If the ill treatment continues, habeas corpus ought to be issued. He observed that it cannot be said that as long
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