APPELLANT’S WRITTEN SUBMISSION May it please this honourable Court, This is the Appellant’s Outline Submissions filed in relation to the appeal against the Learned High Court Judge’s decision on 22.02.2012 in dismissing the Appellant’s application for a writ of habeas corpus. 1. Background 1.1 On 4.2.2012, on the birthday of the Prophet Muhammad, Saudi Arabian Al-Bilad newspaper columnist and blogger Hamza Kashgari, the Appellamt, 23, tweeted the following in Arabic: “On your birthday, I will say that I have loved the rebel in you, that you’ve always been a source of inspiration to me, and that I do not like the halos of divinity around you. I shall not pray for you,”
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APPELLANT’S WRITTEN SUBMISSION
May it please this honourable Court,
This is the Appellant’s Outline Submissions filed in relation to the appeal
against the Learned High Court Judge’s decision on 22.02.2012 in dismissing
the Appellant’s application for a writ of habeas corpus.
1. Background
1.1On 4.2.2012, on the birthday of the Prophet Muhammad, Saudi Arabian
Al-Bilad newspaper columnist and blogger Hamza Kashgari, the
Appellamt, 23, tweeted the following in Arabic:
“On your birthday, I will say that I have loved the rebel in you, that you’ve
always been a source of inspiration to me, and that I do not like the halos
of divinity around you. I shall not pray for you,”
“On your birthday, I find you wherever I turn. I will say that I have loved
aspects of you, hated others, and could not understand many more,”
“On your birthday, I shall not bow to you. I shall not kiss your hand. Rather,
I shall shake it as equals do, and smile at you as you smile at me. I shall
speak to you as a friend, no more,”
[ 2 ]
1.2The twitter comments which had allegedly insulted Islam and the
Prophet Muhammad quickly attracted condemnation, death threats and
declarations that the Appellant had become an apostate. The Saudi
Arabian Council of Elders condemned the Appellant and requested that
he be put on trial and King Abdullah also issued an arrest order.
1.3The Appellant published a similar poem on the Prophet a year ago in
his blog “Flock of Swallows” (15.2.2011) without any incident. The
Appellant belongs to a group of emerging young pro-democracy
activists who among others had supported the Arab Spring.
1.4A few days before the Appellant fled Saudi Arabia, the police stopped
him and his friends from organizing a series of forums on the Syrian
uprising. The Appellant was also monitored by the Saudi intelligence
some 8 months prior to his fleeing.
1.5 On 5.2.2012, the Appellant deleted the tweets. On 6.2.2012, the
issued an apology and fled Saudi Arabia to Jordan.
1.6On 7.2.2012, the Appellant flew to Malaysia and met up with his
blogger friends, a Malaysian and two Arabs.
1.7On 9.2.2012, he was arrested by the Malaysian police at the Kuala
Lumpur International Airport (KLIA) while trying to board a plane to
New Zealand to seek political asylum and not upon arrival in Malaysia
as claimed by the Malaysian authorities.
1.8On 10 Feb, Home Minister Hishamuddin Hussein released a press
statement stating that the Appellant was arrested on 9.2.2012 at the
KLIA airport at the request of Saudi Arabia.
1.9Police spokesperson Ramli Yoosuf was widely reported as stating that
“Kashgari was detained at the airport upon arrival following a request
made to us by Interpol after the Saudi authorities applied for it.”
[ 3 ]
1.10 On 10.2.2012, the Appellant’s solicitors sent a letter dated
10.2.2012 to the Inspector General of Police and further upon advice,
another letter dated 11.2.2012 to the police counter terrorism
department to acquire access to the Appellant. The solicitors failed to
get access to the Appellant.
1.11 On 12.2.2012, the Home Minister released a press statement
stating that the Appellant will be deported to Saudi Arabia.
1.12 On 12 Feb at about 1.45pm, the Appellant’s solicitors obtained
an interim injunction from the High Court to prevent his deportation until
his habeas corpus application is filed and heard.
1.13 The Appellant’s solicitors raced to two airports, Subang and
KLIA as they were unsure where he will be deported from.
1.14 The Appellant’s solicitors checked with the immigration
authorities at both airports but could not find any electronic records that
the Appellants had been deported.
1.15 The KLIA immigration officers however informed the Appellant’s
solicitors that the Appellant had been deported by the police at around
noon without passing through the usual immigration channels.
1.16 On 13.2.2012, the police wrote to the Appellant’s solicitors
stating that the Appellant was deported on 12.2.2012 at 12.10 pm on
the ground that his social visa pass had been cancelled by the
immigration authorities.
1.17 On 13.2.2012, the Home Minister and the police in a press
conference alleged or insinuated that the Appellant is a “criminal” or
“terrorist” wanted by his home country. They backtracked on Interpol’s
involvement after the agency had denied requesting Hamza’s arrest.
The minister also denied knowing about the court order.
[ 4 ]
1.18 On 13.2.2012, the Appellant’s solicitors filed the application for
writ of habeas corpus application.
1.19 On 22.2.2012, the application was dismissed as the court held
that the application is academic.
1.20 The Appellant’s application to cross examine the immigration
officers who affirmed the affidavits on behalf of the authorities was also
dismissed by the court.
1.21 The Appellant now appeals to this honourable Court against the
decision of the learned High Court Judge.
2. Notice of intention to cross examine the deponents.
2.1O.38 r(2)(3) of the Rules of the High Court 1980 states that:-
“In any cause or matter begun by originating summons, originating motion
or petition, and on any application made by summons or motion, evidence
may be given by affidavit unless in the case of such cause, matter or
application any provisions of these rules otherwise provides or the Court
otherwise directs, but the Court may, on the application of any party, order
the attendance for cross examination of the person making any such
affidavit, and where, after such an order has been made, the person in
question does not attend, his affidavit shall not be used as evidence
without the leave of the Court”.
2.2 In Choo Kim San v Malaysia Borneo Finance Corpn (M) Bhd & Anor
[1975] 1 MLJ 37 the Court held that:
[ 5 ]
Having regard to the provision of Order 38 rule 1, I am of the view that
order for the attendance of a deponent for cross examination can be
granted by the court on oral application of any party to the proceedings
after Notice of Intention to cross-examine deponent has been served.
2.3In Lee Sew Kai v Menteri Dalam Negeri, Malaysia & Ors [1990] 1 MLJ
42, the Court held:
The arresting officer’s affidavit in respect of the arrest, viewed in the
light of the applicant’s wife’s affidavit, could not stand on its own.
Several questions arise that needed answering, in order to determine
who is telling the truth.
2.4 In Yit Hon Kit v Minister of Home Affairs, Malaysia & Anor [1988] 2 MLJ
638 the Court held that:
Habeas corpus, challenged the validity of detention order and detention
thereunder, not informed of the grounds of arrest, court allowed
application to cross examine police officer who affected arrest based
on instructions.[para C-D page 646]
2.4In Chen Chi Yong v Siti Zaharah Abang Hj Husaini & Ors [1998] 6 MLJ
577, the Court in deciding the application to cross-examine the
deponent held that:
In the light of the evidence before the court, the deponent appeared to
have uttered an untruth in his sworn affidavit. Whatever the intention or
motive that he might have, it could only be ascertained at the proposed
cross-examination.
[ 6 ]
2.5 In Lim Yik Ying v Liang Yung Piao & Anor [1999] 4 CLJ 589, the Court
of Appeal held:
Be that as it may, while we appreciate the differences encountered by
the learned judge on the conflict of facts in the affidavits of both parties,
the matter can be resolved by resorting to O. 38 r. 2(3) of the Rules of
the High Court 1980. The burden of proving lawful justification is on the
respondents (see Yeap Hock Seng v Minister of Home Affairs
Malaysia, supra, at p. 282). It is then for the respondents to urge the
court to invoke its discretionary power under O. 38 r. 2(3) and apply to
the court for cross-examnination of the appellant on her affidavits
where the facts deposed therein are disputed (see Gomez v. Gomez
[1969] 1 MLJ 228). The appellant may likewise do the same. However
both parties failed to do so. After all s.366 of the CPC provides for
affidavit evidence for such an application.
2.6In Abdul Halim bin Abdul Hanan v Pengarah Penjara, Taiping [1996] 4
MLJ 54, the Court held:
But even assuming that the affidavit in support is not irregular and can
be accepted for what it is worth, the plaintiff’s summons would still have
to be dismissed as the opposing claim of the parties in their respective
affidavits as to what actually transpired has led to a stalemate which
could only be resolved if the deponents appear to be examined and
cross-examined as in a writ action.
2.7 In Reg. v. Home Secretary, Ex p. Khawaja (H.L.(E.) 1984 1 AC 74.
There is no doubt that procedural means exist, whether under the head of
habeas corpus or of judicial review, for findings of fact to be made, by the
use of affidavit evidence or cross examination upon them or oral evidence.
[ 7 ]
There is no doubt that, questions of liberty and allegations of deception
being involved, the court both can and should review the facts with care.
3) Application for habeas corpus is not academic as there’s live issue.
3.1 In Metramac Corporation Sdn Bhd v Fawziah Holdings Sdn Bhd [2006]
3 CLJ 177, the Federal Court held:
The test in deciding whether an appeal has become academic is to determine
whether there is in existence a matter in actual controversy between the
parties which will affect them in some way; if there is, the appeal cannot be
said to be academic. In this instance, there could be no dispute that if the
appeal was ruled to be academic, it would seriously affect the undertaking in
damages given by the respondent. It was, therefore, clear that it was the
appeal that would determine whether the orders ought not to have been
granted in the first instance in order to enable the applicant to proceed further
with the issue of the undertaking for damages. It followed that the fact that the
orders had been dissolved could not render the appeal academic. The
corollary was that the preliminary objection raised by the respondent was
devoid of any merit whatsoever. (paras 7, 8 & 9).
3.2 In Mohamad Ezam Mohd Noor v Ketua Polis Negara & Other Appeals
[2002] 4 CLJ 309, in addressing the preliminary objections that the appeal
was no longer a living issue and purely academic held:
As for the first preliminary objection, he stressed that since the second
appellant had been released, his appeal was no longer a living issue and was
purely academic. As for the second preliminary objection, he reiterated that
the other four appellants were no longer under police custody as the Minister
had ordered them to be detained under s. 8(1) of the ISA with effect from 2
June 2001. This undisputed fact makes mockery, he said, of the fact that the
applications for habeas corpus are directed not against the Minister but
[ 8 ]
against the Inspector General of Police (hereinafter “the IGP”) as the
respondent. Since they were no longer under police custody under s. 73 of
the ISA, he added, the appeal has been rendered academic. The appropriate
course of action, he suggested, was to file a writ of habeas corpus against the
Minister.
Reference was made to Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors v.
Karpal Singh [1992] 1 CLJ 36; [1992] 1 CLJ (Rep) 212 and Re P.E. Long @
Jimmy & Ors; P.E. Long & Ors. v. Menteri Hal Ehwal Dalam Negeri Malaysia
& Ors [1976] 2 MLJ 133 to buttress his arguments.
In reply, Sulaiman Abdullah for the appellants submitted that as regards the
first issue, the second appellant is facing a High Court order declaring his
detention to be lawful and should he decide to take civil proceedings, the
parties would remain the same and it could amount to res judicata.
All previous habeas corpus cases had decided that s. 73 and s. 8 of the ISA
were inextricably linked. The Minister, he argued, made the order under s. 8
based on the police investigations while the appellants were being detained
under s. 73 of the ISA. The validity of the High Court decision was therefore a
live issue.
3.3 In R Rama Chandran v Industrial Court of Malaysia & Anor [1997] 1
CLJ 147, the Federal Court held:
In this context, it is pertinent to note that the jurisdiction of the Courts in
Malaysia to issue prerogative orders is derived from the prerogative
jurisdiction inherited from English decisions as well as from statute. The
Courts of Judicature Act 1964, by s. 25 read with para. 1 of the Schedule
thereto, provides that the power of the High Court, includes “power to issue
to any person or authority directions, orders or writs, including writs of the
nature of habeas corpus, mandamus, prohibition, quo warranto and certiorari
[ 9 ]
or any others, for the enforcement of the rights conferred by part II of
the Constitution, or any of them, or for any purpose” (Emphasis supplied).
The Schedule is entitled “Additional Powers” and this suggests powers over
and above those already enjoyed by the High Court.
Part II of the Federal Constitution deals with the fundamental liberties
guaranteed by Federal Constitution. And, as was correctly pointed out by Sri
Ram JCA when speaking for the Court of Appeal in Hong Leong Equipment
Sdn. Bhd. v. Liew Fook Chuan [1996] 1 MLJ 481, 501: “Quite apart from being
a proprietary right, the right to livelihood is one of the fundamental liberties
guaranteed under Part II of the Federal Constitution.”
It is obvious that para. I of the Schedule to Courts of Judicature Act 1964, is
generally in pari materia with Article 226(l) of the Indian constitution which
provides:
Notwithstanding anything in art 32, every High Court shall have power,
throughout the territories in relation to which it exercises jurisdiction, to issue
to any person or authority, including in appropriate cases any government,
within those territories, directions, orders or writs, including writs in the nature
of habeas corpus, mandamus, prohibition, quo warranto and certiorari, or any
of them, for the enforcement of any of the right conferred by part III and for
any other purpose.
Part III of the Indian Constitution corresponds to Part II of our Federal
Constitution which, as I have said, provides for the fundamental liberties.
There are dicta in a wealth of Indian case law, the effect of which is, that the
powers of the High Court conferred by Article 226 are not limited to issuing
prerogative writs but extends so far as to enable the Court to issue any
appropriate order or direction. (See for example, Jashingbhai v. Dist.
Magistrate, Ahmedabad, [1950] AB 363, 52 Bom. LR 544; Ramcharan v. UP
[1953] 1 All 251, (52) AA 752; Prabhawati Devi v. Dist. Magistrate, [1952] AA
[ 10 ]
836; Chhotabhai Jethabhai Patel & Co. v. Union [1952] Nag. 156; Amardas v.
Pepsu, [1953] Pep. 63; Krishnankutty v. Trav. Cochin, [1951] A. Tr. C. 197; B.
Parraju v. Gen. Manager, BN Rly, [1952] A Cal.61). Though these dicta are in
the nature of general observations they cannot be disregarded out of hand.
There are also lndian Supreme Court authorities which strongly support the
proposition that the power of the Courts there, in the field of public law
remedies, is not limited, as in England, but much wider, so much so, that in
certain circumstances, they have the power to review the decision of the
authority on the merits and mould the relief according to the exigencies of the
situation in order to satisfy the insistent demands for justice. (See for
example, State of Madhya Pradesh v. Bhailal Bhai AIR [1964] SC 1006;
Dwarka Nath v. Income Tax Officer, AIR [1966] SC 81; Baldeo Prasad v.