Introduction
The legal basis for habeas corpus in Malaysia can be found in Article 5(1) and Article 5(2) of the Federal Constitution (FC). Article 5(2) of the FC provides a situation where a person may be “deprived of his life and personal liberty”, that is when he is unlawfully detained. Article 5(2) of the FC imposes a duty on the Court to inquire and determine relevant issues where a complaint was made alleging unlawful detention.
In addition, there are other statutory provisions in s.25(2) of the Court of Judicature Act 1964, and ss.23, 28, 117 and 365 of the Criminal Procedure Code (CPC). The powers to grant a writ of habeas corpus is conferred on the High Court by s.365 of the CPC. Hence, any application for writ of habeas corpus should be forwarded to the High Court under s.365 of the CPC. However, it should be noted that all statutes are subject to Article 5(2) of the FC which is the supreme law of the land.
The Laws as to the Writ of Habeas Corpus
In the case of Yeah Hock Seng @ Ah Seng v Minister of Home Affairs, Malaysia [1975] 2 MLJ 279, Abdolcader J has stated as follows:
“The grant of habeas corpus is as of right and not in the discretion of the court as in the case of such extraordinary legal remedies as certiorari, prohibition and mandamus. It is a writ of right against which no privilege of person or place can be of any avail (R v Pell and Offly 84 ER 720). The heavy musketry of the law will always be brought to bear upon any suggestion of unlawful invasion or infringement of the personal liberty of an individual in the form of habeas corpus and kindred orders where necessary to grant relief when warranted….”
The Federal Court in the case of Re Datuk James Wong Kim Min [1973] 1 LNS 144, it was held that:
“Preventive detention is, therefore, a serious invasion of personal liberty. Whatever safeguard that is provided by law against the improper exercise of such power must be zealously watched and enforced by the court. In a matter so fundamental and important as the liberty of the subject, strict compliance with statutory requirements must be observed in depriving a person of this liberty. The material provisions of the law authorizing detention without trial must strictly construed and safeguards which the law provides for the protection of any citizen must be liberally interpreted. Where the detention cannot be held to be in accordance with procedure established by law, the detention is bad and the person detained is entitled to be released forthwith. Where personal liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to avail himself of any technical defect which may invalidate the order which deprived the deponent of his liberty."
The same Honourable Court in the case of Chua Kian Voon v Menteri Dalam Negeri [2020] 1 CLJ 747 held as follows:
“Generally speaking, non-compliance with mandatory requirements will render a detention illegal”.
One has to bear in mind that in an application for a writ of Habeas Corpus, the burden to proof that the detention is lawful is on the detaining authority. Referring to the Federal Court case of SK Tangakaliswaran a/l Krishnan v Menteri Dalam Negeri, Malaysia & Ors [2009] 6 CLJ 705, Gopal Sri Ram (HMP) has stated as follows:
“[5] In my considered judgment the point at stake falls to be resolved with reference to the principles governing the burden of proof in an application for habeas corpus. It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority….”
Unlike the other usual remedies of administrative law, habeas corpus is a remedy of right for anyone detained unlawfully. The court has no discretion to refuse habeas corpus if the detention was unlawful or has become unlawful due to subsequent non-compliance with the law as laid down in cases of Andrew v Superintendent Pudu Prisons [1976] 2 MLJ 156 and Re Tan Boon Liat [1977] 1 MLJ. A person who is released after a writ of habeas corpus is issued, has the right to sue for damages for the period of unlawful detention as laid down in ss 438 and 175 of the CPC. The writ of habeas corpus is a remedy to secure the release of anyone who has been arrested or detained unlawfully.
In the Federal Court case of Selva Vinayagam A/L Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 1 MLJ 601, the issue of the non-compliance of the preamble of Dangerous Drugs (Special Preventive Measures) Act 1985 (“Act 316”) was decided. Vernon Ong Lam Kiat (HMP) held that:
“[38] Section 15 was amended to read as follows:
Long title, preamble and schedules
15. The long title and preamble and every schedule (together with any note or table annexed to the schedules) to an Act or to any subsidiary legislation shall be construed and have effect as part of the Act or subsidiary legislation. (Amendments underlined.) The amendments in s 15 took effect retrospectively on 18 May 1967: see sub-s 3(2) of the Amending Act. Be that as it may, pre-amendment, s 15 only requires every schedule to an Act to be interpreted as part of the Act. The amended s 15 further requires the long title and preamble to be interpreted and have effect as part of the Act.
[39] It is also important to note that concomitant with the amendments to ss 15, 17A was inserted by the Amending Act to emphasise that in construing a provision of an Act, due regard must be had to the purpose or object of the Act. Section 17A which came into force on 25 July 1997 reads as follows:
17A Regard to be had to the purpose of Act
In the interpretation of a provision of an Act, a construction that would promote the purpose or object underlying the Act (whether that purpose or object is expressly stated in the Act or not) shall be preferred to a construction that would not promote that purpose or object. (Underlined added.)
[40] The declared purpose of the Interpretation Acts as manifested in the long title to the Act was for the application, construction, interpretation and operation of written laws. Read in this light, s 17A underscores Parliament’s intention that the interpretation and construction of any written law shall have regard to the underlying purpose or object of the Act. And s 15 as amended further emphasises the point by stating that the long title and preamble and every schedule shall be construed and have effect as part of the Act. That in our view is the codification of purposive rule of construction, which is not merely confined to the provision of a section of the Act, but also includes the purpose or object manifest in the long title and preamble of the Act.
[43] It is settled law that whilst the material provisions of preventive detention laws must be strictly construed, safeguards which the law provides for the protection of any person must be liberally interpreted. By reason of the foregoing, careful consideration must therefore be given to the scheme of sub-s 6(1) both under the FC and Act 316.
[46] In the light of ss 15 and 17A of the Interpretation Acts, we are of the view that the purpose and object of Act 316 should be read into sub-s 6(1) in order to give it the meaning intended by Parliament when it enacted Act 316 under the authority of art 149 of the FC….”
“[47] For the foregoing reasons, we think that the respondent’s argument that the Long Title and Preamble is not relevant for the purposes of interpreting sub-s 6(1) is incongruous. It is clear that the power under sub-s 6(1) may only be exercised if the following three key ingredients are set out in the grounds of the detention order and allegations of fact. One, that the activity which has been taken or is being threatened by a substantial body of persons relates to or involves the trafficking in dangerous drugs. Two, that the detenu is a member of a substantial body of persons. Three, that the Minister is satisfied that it is necessary in the interest of public order that the detenu be subject to preventive detention.”
With reference to the above case law, it is clear that Act 316 could not be used if the alleged act of trafficking dangerous drugs by a person is done individually as it against the preamble of Act 316 and Article 149 of the FC. In this case, the writ of habeas corpus was issued and the appellant was released.
Similarly, in the case of Lim Kean Boon v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 1 LNS 539, the Court had issued a writ of habeas corpus on the reason that there was a non-compliance of procedure and against Article 149 of the FC and preamble of Act 316. The High Court Judge stated as follows:
“[25] ….. Oleh itu, Perintah Tahanan tersebut didapati tidak memenuhi prasyarat yang ditetapkan di bawah Perkara 149 PP yang dibaca bersama dengan preamble Akta 316. Sehubungan dengan itu, Mahkamah ini mendapati Perintah Tahanan itu tidak boleh dikatakan sebagai telah dibuat menurut ruang lingkup dan skop pemakaian Akta 316 dan ia juga tidak boleh dikatakan sebagai telah dibuat dengan secara yang sah.”
In the Federal Court case of Muhammad Jailani Kassim v Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2006] 4 CLJ 687, Augustine Paul HMP has stated as follows:
“It follows that if a detention is procured by steps which are not regular the court is empowered to set aside the detention order. It means that every step which is necessary for the making of a detention order is subject to review by the court.”
In the recent Federal Court case of Dhinesh Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 5 CLJ 1, Nallini Pathmanathan FCJ in delivering the judgment of the Court stated:
“(2) While legislation like POCA, which is enacted pursuant to art. 149 of the FC remains constitutionally valid notwithstanding its inconsistency with art. 5 of the FC, the right to question the legality of such detention and to have a court to review such detention for legality is neither taken away nor suspended. The right to have the legality of such detention reviewed by a court even in times of emergency or subversion as envisaged under art. 149 of the FC, is a constitutionally embedded right under art. 5(2) of the FC. Further, arts. 4 and 8 of the FC are not alluded to in art. 149 of the FC, meaning that the relevant legislation could not contravene arts. 4 and 8 of the FC. This means that the fundamental characteristics or features, or the basic structure of the FC must be complied with, as should the doctrines of proportionality and equality embodied in art. 8 of the FC.”
“(14) The remedy of the writ of habeas corpus is available by reason of art. 5(2) of the FC. Once art. 5(2) of the FC comes into play, it is incumbent upon a High Court Judge to inquire into the legality of the detention. The relevant date for the consideration of the High Court is the date of the filing of the application for judicial review of the legality of the detention. Article 5(2) FC would be rendered nugatory if it could simply be said that a particular period of detention under a specific section of the POCA had expired and been replaced by detention under a different section, thereby immunising such an executive decision from judicial scrutiny as required under art. 5(2) of the FC. The various stages of detention under various sections of the POCA, or even if detention was effected under separate legislation continuing on from a POCA detention, would be treated as one over-arching transaction. This ensures that the right of review of a detention to ensure that it is legal is not abrogated.”
Conclusion
Therefore, it can be summarised that every person who had been detained unlawfully has a right to apply to the High Court for a writ of habeas corpus to be issued. Every procedure along the way has to be complied with strictly by the detaining authority as this would affect the personal liberty of the detained person. One can never be ignorant of the presumption of innocence, “Every person is innocent until proven guilty”, which is the pillar of the Criminal Justice System.
Rights without remedies are like lights that do not shine and fires that do not glow. The safeguards for personal liberty in Article 5(1) are strengthened by the provision for a remedy in Article 5(2) of the FC.
References:
· Emeritus Prof Shad Saleem Faruqi, Article 5(2): Writ of Habeas Corpus
· Criminal Procedure Code
· Court of Judicature Act 1964
· Dangerous Drugs (Special Preventive Measures) Act 1985
· Federal Constitution
· Interpretations Act 1948 and 1967
· Prevention of Crime Act 1959
· Andrew v Superintendent Pudu Prisons [1976] 2 MLJ 156
· Chua Kian Voon v Menteri Dalam Negeri [2020] 1 CLJ 747
· Dhinesh Tanaphll v Lembaga Pencegahan Jenayah & Ors [2022] 5 CLJ 1
· Lim Kean Boon v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 1 LNS 539
· Muhammad Jailani Kassim v Timbalan Menteri Keselamatan Dalam Negeri, Malaysia & Ors [2006] 4 CLJ 687
· Re Datuk James Wong Kim Min [1973] 1 LNS 144
· Re Tan Boon Liat [1977] 1 MLJ
· Selva Vinayagam A/L Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 1 MLJ 601
· SK Tangakaliswaran a/l Krishnan v Menteri Dalam Negeri, Malaysia & Ors [2009] 6 CLJ 705
· Yeah Hock Seng @ Ah Seng v Minister of Home Affairs, Malaysia [1975] 2 MLJ 279
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