The Book of Prof Shad.docx

Refer to the celebrated common law writ or order of

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refer to the celebrated common law writ (or order) of habeas corpus which was developed in England in the seventeenth century. Legal basis: The legal basis for habeas corpus in Malaysia is Article 5(1) and Article 5(2) of the Constitution. In addition, there are statutory provisions in section 25(2), Courts of Judicature Act 1964 (along with clause I of the Schedule) and sections 23, 28, 117 and 365 of the Criminal Procedure Code (CPC). All statutes are subject to Article 5(2) of the supreme Constitution and any requirements or restrictions therein cannot diminish the constitutional guarantee. Who may apply? The application for habeas corpus can be made by the prisoner himself or by someone else on his behalf: Theresa Lim Chin v IGP [1988] 1 MLJ 293. This means that the rule of locus standi is very lenient when it comes to an application for habeas corpus. Habeas corpus is available to citizens as well as non-citizens. Remedy of right: Unlike the other remedies of administrative law like certiorari, prohibition, mandamus, injunction, declaration and quo warranto, habeas corpus is a remedy of right for anyone detained unlawfully. The court has no discretion to refuse habeas corpus if the detention was, at its inception, unlawful or has become unlawful due to subsequent non-compliance with the law: Andrew v Superintendent Pudu Prisons [1976] 2 MLJ 156; Re Tan Boon Liat [1977] 1 MLJ 82. The existence of an 22 Baljit Singh Sidhu, “Amendments to the Criminal Procedure Code: Radical or Piecemeal Legislation?” [2007] 7 MLJ liii 29
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alternative remedy like appeal or the right to make representation to an advisory board under Article 151 is not a bar to the writ: Yeap Hock Seng v Minister [1975] 2 MLJ 279; Ahmad Bashid Abdul Malek v Timbalan Menteri [1999] 3 MLJ 369; Mohd Raymee Ismail v Ketua Komandan Pusat Serenti Tiang Dua [ [1999] 1 CLJ 799. 23 Habeas corpus can issue against private as well as public authorities: Munusamy v Subramaniam [1969] 2 MLJ 108; Zainab Othman v Supt. Of Prisons [1975] 2 MLJ 221. A person released on habeas corpus can also sue for damages for the period during which he suffered unlawful imprisonment. 24 Grounds for issuance of writ: The writ of habeas corpus is a remedy to secure the release of any one who has been arrested or detained unlawfully. The burden of proving that the detention is in accordance with law is, in the first instance, on the detaining authority: Re Tan Sri Raja Khalid Raja Harun [1988] 1 MLJ 182. This burden is discharged simply by producing the order of detention. The onus then shifts to the detainee, especially if he alleges bad faith: Karam Singh v Minister [1969] 2 MLJ 129. Besides securing the release of any one who has been arrested or detained unlawfully, some Commonwealth courts hold that habeas corpus can be applied for to secure bail or obtain an expeditious trial. The applicant need not be in physical custody. If his movements have been restricted, the situation is germane for the writ.
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