Article 5 (2) right to habeas corpus

Article 5 (2)

Habeas Corpus

• Article 5 (1) read with Article 5 (2) guarantees the right to writ of habeas corpus.

• Habeas corpus literally means ‘bring the body’.

A prerogative writ issued by the court used to command a person who is

detaining another in custody to produce that person before the court.

It is used primarily to secure the release of a person detained unlawfully or without legal justification.

• The High Court will quash an illegal arrest or detentionof a person by issuing habeas

corpus.

• The order is issued to the person who has the custody of the aggrieved person (the detainee).

• The grant of habeas corpus is as of right and not in the discretion of the court in the circumstances of a fundamental right being involved.

The Legal Provisions

Constitutional Rights and Remedy Article 5(2) - 5(1)

The Power to Provide for the Relief Art. 5 (2)

S. 25 and Section 1 of the Schedule of the Courts of Judicature Act

S. 365 (1)(b) of the Criminal Procedure Code

The Legal Provisions

The procedure to apply for the relief by the detainee

Chapter XXXVI of Part VIII of the CPC

The requirement and procedure to detain a person that must be observed the detaining

authorityArticle 151 of the Federal Constitution

Situations where Habeas Corpus is inapplicable

1. Undergoing a sentence of imprisonment made by a court of competent jurisdiction

2. Lawful arrest on a reasonable suspicion of having committed a crime- 24 hours

3. Lawful remand under an order of a magistrate- More than 24 hours

4. Challenge the legality or validity of a trial

5. Admission or non-admission of evidence by the trial court


Re Onkar Shrian [1970] 1 MLJ 28

A person at large on bail is not detained in custody

so as to be entitled to the writ of habeas corpus

which is issued only when the applicant is in illegal confinement.


Andrew s/o Thamboosamy v. Superintendent of Pudu Prisons, Kuala Lumpur [1976] 2 MLJ 156

He had previously renounced his citizenship and re-entered Malaysia.

He was detained under s. 34(1) of the Immigration Ordinance, 1959 so that arrangements could be made for his removal.

The appellant in this case applied for an order of habeas corpus claiming that his detention was unlawful.

The Federal Court:

Under the Immigration Ordinance, only the Executive has power to release the appellant.

Whether or not the Executive should do so is

a matter of policy for them. The plea of the applicant in this case should

therefore be addressed not to the Court but to the appropriate authority.

Situations where Habeas Corpus is inapplicableRE MEENAL W/O MUNIYANDI [1980] 2 MLJ 299

An Indian national married a Malaysian citizen in India.

When she came to Malaysia she was given an entry permit. She lived with her husband in

Malaysia.

In 1960 she was given the status of a permanent resident and issued with a red identity card. In November 1970 she surrendered her red

identity card and returned to India.

In 1979 the applicant came back to Malaysia and was issued with a social visit pass.

On the expiry of the visit pass the immigration authority issued a special pass to enable the applicant to make the necessary arrangement to leave the country.

On the day the special pass expires her travel documents were impounded and she was removed to prison with a view to deportation.

The applicant applied for habeas corpus to secure her release.

One of the questions that arose was whether the applicant was lawfully detained.

Held:

The Order of Removal under section 33(1) of the Immigration Act andthe Order of Detention

issued against the applicant in this case were not illegal and therefore the detention of the

applicant was not unlawful.


Cheow Siong Chin [1985] 1 CLJ 229

Orders had been made under the Restrictive Residence Enactment

(a) requiring the appellant to reside in the town of Gua Musang for a period of three years from the date of the order and

(b) directing him to be placed under police supervision for the same period.

The appellant applied for a writ of habeas corpus to challenge the orders made against him.

Held:

The restraint imposed by reason of an order of restricted residence under the Restricted Residence Enactment did not constitute detention of such a nature so as to attract the application of the writ of habeas corpus.

The writ of habeas corpus was therefore not available to the appellant in the circumstances.


SEJAHRATUL DURSINA V. KERAJAAN MALAYSIA & ORS [2006] 1 CLJ 593

A person who is subjected to a restriction order is not being physically detained, imprisoned or

in custody and as such a writ of habeas corpus is not available to

him.


SUKMA DARMAWAN V. KETUA PENGARAH PENJARA MALAYSIA &

ANOR [1999] 1 CLJ 481

The expressions "unlawfully detained" and "detention" employed

article 5(2)do not apply to the case of

a person held in a prison in execution of a sentence passed

by a court of competent jurisdiction.

The only remedy is that of appeal

under s. 307 or s. 358 of the Criminal Procedure Code

or

an application for the court to exercise its powers of revision

under s. 323 of that Code ors. 35 of the Courts of Judicature Act.