The remedy of habeas corpus in Malaysia : a comparative appraisal /
The writ of habeas corpus has long been established as a potent weapon in the armoury of the Courts to break the walls of unlawful detention. This writ, which in its original use, was to bring the body of person for the purpose of detention, has undergone a complete reversal, whereby its use now is...
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| Main Author: | |
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| Format: | Thesis |
| Language: | English |
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Kuala Lumpur :
Ahmad Ibrahim Kulliyyah of Laws, International Islamic University Malaysia,
2013
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| Subjects: | |
| Online Access: | http://studentrepo.iium.edu.my/handle/123456789/1950 |
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| Summary: | The writ of habeas corpus has long been established as a potent weapon in the armoury of the Courts to break the walls of unlawful detention. This writ, which in its original use, was to bring the body of person for the purpose of detention, has undergone a complete reversal, whereby its use now is the antithetical opposite: to secure the release of a person unlawfully detained. This study undertaken herein is to set out the historical underpinning of this celebrated writ followed with the applications in Malaysia with comparative analysis of the position obtainable in selected commonwealth jurisdictions. It seeks to show, from decided cases, that the Malaysian Courts, when confronted with the application for the writ, eschewed the developments taking place elsewhere and preferred instead to hold on tenaciously to the authorities which were developed centuries ago. Jurisprudentially, the approach is one of complete positivism despite constant prodding for the Court to embrace a more humanistic and naturalist posturing. This study also showed that, on a fundamental level, the posture taken by the Courts stems from a failure to understand the scope and extent of the provisions of the Malaysian Constitution, especially Article 5 and Article 8. As a result, in place of an expansionist and liberating interpretation, a literal, and cloistered approached was adopted, thus fettering the Court's own powers and jurisdictions. In the area of executive detentions, this has led to the erosion of the fundamental rights of the detenus. In addition, the absence of clear procedures that first, sets out the manner in which the application is to be made and second, procedural as well as ambiguity on the standards and burden of proof have led to uncertainty of the process of applying for the writ. This study then suggests reforms, which now assume greater significance in view of the current trend of detentions in the new spectre of terrorism, that are sorely needed. Drawing from the experiences of other jurisdictions, this study found that it is important that reforms must take two forms: first, amendments to the substantive law; and second, reform of the procedural law. Thus, suggested amendments to the Criminal Procedure Code have been drafted. Similarly new procedural rules in the form of Order 54 have accordingly been drafted. The net result or outcome that is sought to be achieved by these amendments is to shift from the rigid and subjective approach to a liberating, expansionist and objective approach in determining the legality of detention. If these amendments are carried out it will then ensure that the protection of fundamental and civil liberties is put on a higher pedestal and that every detention is unlawful, unless proved otherwise beyond reasonable doubt. |
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| Physical Description: | xviii, 290 leaves : ill. ; 30cm. |
| Bibliography: | Includes bibliographical references (leaves 280-286). |