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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.’
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: