Article 5 (2

Habeas Corpus
 Article 5(1) ‘No person shall be deprived of his life or
personal liberty save in accordance with law.’
 Article 5(2) ‘Where complaint is made to a High
Court or any judge thereof that a person is being
unlawfully detained the court shall inquire into the
complaint and, unless satisfied that the detention is
lawful, shall order him to be produced before the
court and release him.’

 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
detention of 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.
REMEDY OF RIGHT

WHO CAN APPLY?

 Can be made by the prisoner himself or
by someone else on his behalf.(Theresa
Lim Chin v. IGP)
 Applicable with citizens and non
citizens
 -Can be issued against private and public
authorities
 -Court had no discretion to refuse it if the
detention was at its inception unlawful or
has become unlawful due to subsequent no-
compliance with the law.
 -Habeas corpus can be issued against
private as well as public authorities.
BURDEN OF PROOF

 The detaining authority has to prove

that the detention is in accordance
with law.
 The burden is discharged simply by
producing the order of detention
 The onus then shifted to the detainee,
especially if he alleges bad faith.
ABDUL GHANI HAROON V. KETUA POLIS NEGARA &
ANOTHER APPLICATION (NO 3) [2001] 2 CLJ 709

High Court held that right of habeas

corpus is a constitutional right and it
is the right of the detainee to be
present in the court hearing.
…CONTINUE

 The wording in Art 5(2) given the natural

and ordinary meaning seemed to show
clearly that the High Court judge or any
judge should order the detainee to be
produced in court and release him after
being satisfied that the detention was
unlawful.
QUESTIONS??

 1. DOES ART 5(1),(2) REFER TO

SUBSTANTIVE LAW OR PROCEDURAL
LAW OR BOTH.
 2.WHETHER LIFE AND LIBERTY WERE
DEPRIVED AND WHETHER THE
DEPRIVATION WAS “IN ACCORDANCE
WITH LAW”
ILLEGALITY

 If a detention order suffers from substantive ultra vires, illegality

of substance, excess of jurisdiction or lack of jurisdiction, the
writ can be issued.
 For example
 i.if the law under which the arrest was made does not apply in
the territory where the detainee was found.
 ii. the detention exceeds the date of the detention order
iii. where a person detained as an illegal immigrant whereas he
entered the country lawfully
 iv. Where the law required the satisfaction of the minister but his
deputy had signed the detention order or an officer acting
 In Tan Sri Raja Khalid’s case involving the
detention under ISA of a bank executive. The
Supreme court held that the test for the exercise
of executive discretion was subjective. The court
could not insist on evidence being supplied to the
court. Nevertheless, it held that the court could
take note of what was stated in the affidavit. As
the evidence disclose in the affidavit did not reveal
any ground which could be relevant to security,
the writ of habeas corpus should issue.
IRRATIONALITY

 MEANING
 -Abuse of power,illegality of purpose,bad
faith,unreasonableness etc.
 In Minister v.Jamaluddin Othman where a Malay
who had converted to Christianity was detained
under ISA. Habes Corpus was issued because a law
under art 149 (the ISA)cannot be employed to
restrain someone from exercising freedom of
religion.
 -The conduct of the police in refusing the
detainee’s right of access to a lawyer and visits by
his family constituted mala fide (Abdul Ghani
Haroon (No.3) )
 PRODECURAL IMPROPRIETY
 Refers to illegality of procedure or procedural ultra vires.
 Meaning: The power must be exercised with mandatory
procedural requirements
 Q: whether habeas corpus can be issued if procedural
requirements are violated?
 Different approach in the early years after independent
where procedural violations refers to “defects of forms not
of substance” compared to recent years where Court of
Appeal in Tan Teck Seng ruled that law in art 5(1) includes
procedural
 Procedural requirements could be implied by the
common law rules of natural justice.
 The court had also distinguish between
 a) procedural requirements which are mandatory
and imperative and
 b) procedural requirements which are merely
directory.
 THE LEGAL PROVISIONS
The Power to Provide for the Relief
High Court: S. 25 Courts of Judicature Act 1964 and
Paragraph 1 of the Schedule to the Act:

‘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, or any others, for the
enforcement of the rights conferred by Part II of the
Constitution, or any of them, or for any purpose.’
S. 365 (1)(B) OF THE CRIMINAL PROCEDURE
CODE

•The High Court may whenever

it thinks fit direct— (b) that any
defendant in custody under a
writ of attachment be brought
before the Court to be dealt
with according to law.
 THE LEGAL PROVISIONS

 The procedure to apply for the relief by

the detainee: Chapter XXXVI, sections
365 – 375 of the CPC

 The requirement and procedure to detain

a person that must be observed by the
detaining authority: Article 151 of the
Federal Constitution
SEJAHRATUL DURSINA @ CHOMEL BTE
ABDULLAH V KERAJAAN MALAYSIA [2006] 1 CLJ
593
 Writ of habeas corpus was only available
to a person who was being physically
detained unlawfully.
 As such it was not available to persons
put under the restricted residence laws;
such persons were not physically
detained or in actual custody.
 Situations where Habeas Corpus is
inapplicable

(i)Undergoing a sentence of imprisonment made

by a court of competent jurisdiction
(ii)Lawful arrest on a reasonable suspicion of
having committed a crime - 24 hours
(iii)Lawful remand under an order of a magistrate
- more than 24 hours
(iv)Challenge the legality or validity of a trial
(v)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.
RE 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 and the
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 made under the Restrictive Residence

Enactment requiring the appellant to reside in
the town of Gua Musang for a period of three
years from the date of the order, and 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 in such case is to
appeal under s. 307 or s. 358 of the
Criminal Procedure Code or to make
an application for the court to
exercise its powers of revision under
s. 323 of that Code or s. 35 of the
Courts of Judicature Act.