The Book of Prof Shad.docx

All statutes are subject to article 52 of the supreme

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All statutes are subject to Article 5(2) of the supreme Constitution and any requirements or restrictions therein cannot diminish the constitutional guarantee. In Ahmad Saidi Md Isa v Timbalan Menteri [2006] 3 MLJ 209 it was suggested that besides Article 5(2), Article 8 on equality before the law can be invoked by an appellant to claim the opportunity to challenge the validity of the administrative order made against him. 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 109
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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 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. 104 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. Some doubts exist about this proposition because unlike previously 105 when the writ could be applied for under Order 54 of the Rules of the High Court 1980, habeas corpus now lies under section 365 of the Criminal Procedure Code. However, it is submitted that because of its constitutional basis in Article 5(2), the right to habeas corpus cannot be excluded or weakened by any statute. The writ should apply whenever the detaining authority, whether public or private, lacks authority. A person released on habeas corpus can also sue for damages for the period during which he suffered unlawful imprisonment. 106 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. In the UK the writ requires a person having custody of a prisoner to bring him before the court together with the grounds for his detention. The detaining authority must then explain to the court the reasons for the detention. If the reasons are “not in accordance with law”, the court has the duty to order the detainee to be released. In Malaysia there is no duty at the commencement of the proceedings to produce the detainee in the court. All that the writ requires is for the detaining authority to explain to the court the reasons for the detention of the applicant. If the reasons are “not in
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