01 March 2010

Habeas Corpus

Article 5 of the Malaysian Federal Constitution guarantees the citizen of their right to liberty. Article 5(1) makes it clear that no person shall be deprived of their life or personal liberty.

Articles 5 (3) - (4) enshrines our right to be informed of the reasons of arrest (if arrested) as soon as possible and that one shall be brought before a Magistrate within 24 hours upon arrest.

Article 5 (2) gives the Courts the power to release a citizen who is wrongfully detained. This application is called Habeas Corpus. The phrase Habeas Corpus is Latin, which literally means 'you shall have the body'.

The full phrase is actually Habeas Corpus ad Subjiciendum. It basically means to demand the release of a person who was wrongfully arrested.

In Malaysia the process to file the Writ of Habeas Corpus is provided for in Sections 365 - 375 of the Criminal Procedure Code. A quick summary of a habeas corpus application :-

1. File a Motion with a supporting Affidavit from the arrested person at High Court. The applicant may file at any High Court in Malaysia.

2. The affidavit must contain:-
a. where and by whom the person is detained;
b. the facts (within the detainee's knowledge) of the detention;
c. issues to persuade the Court that person is detained against his will without just cause.

3. The Applicant to serve Motion and Affidavits to the Government.

4. After all Affidavits are exchanged, the Court will fix a hearing date.

5. If the Applicant succeeds, he/she will be released, but if he fails, he can appeal directly to the federal Court (Section 374 CPC)

There are many cases to refer to when submitting before the High Court Judge, but Judges have been known to set a person at liberty if (inter alia):-

1. the person detained was not given proper advice/instructions on the reasons for detention;

2. the Authorities failed to comply with all relevant procedures when detaining the person;

The Writ of Habeas Corpus is a powerful tool to protect one's liberty and acts as a check and balance of the power to detain a person, particularly when the Government exercises their powers to detain a person without trial (like ISA, Emergency Ordinance arrests)

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