THE LAW ON HABEAS CORPUS

Hello Readers, allow me to share a brief explanation of the above topic on this lazy Sunday afternoon. While you are waiting to savour the delicious chicken curry simmering in your kitchen, you can read up on my sharing. Thank You

The term habeas corpus refers most commonly to a specific writ known in full as ‘habeas corpus ad subjiciendum’, a prerogative writ ordering that a prisoner to be brought to the court so that it can be determined whether or not the prisoner is being imprisoned lawfully. Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention. The words ‘habeas corpus’ is a Latin law term. Its literal English translation is: ‘you have the body’.

Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention. The words ‘habeas corpus’ is a Latin law term. Its literal English translation is: ‘you have the body’.

 

The writ of habeas corpus functions as a judicial remedy aimed at preventing the arbitrary use of executive power to imprison individuals unlawfully. The use of habeas corpus has roots in English common law dating back to the fourteenth century. It was first expressed in the Magna Carta of 1215, which stated, ‘No free man shall be seized, or imprisoned, or disseized, or outlawed, or exiled, or injured in any way, nor we will enter on him or send against him except by the lawful judgment of his peers, or by the law of the land’.

 

In Malaysia, the Federal Constitution makes no explicit provisions for the writ of habeas corpus. The legal basis for the writ of habeas corpus in Malaysia is art 5(2) of the Constitution and ss 23, 28, and 365 of the Criminal Procedure Code.

 

The writ of habeas corpus is a powerful remedy in the sense that it is not discretionary. It is distinct from the prerogative writs such as those of certiorari, prohibition, and mandamus. The writ of habeas corpus must be issued if the court finds that the detenu is illegally or improperly detained.

 

Where a detainee challenges his detention as being illegal, the burden lies on the detaining authority to show that the detention is legal. In SK Tangakaliswaran a/l Krishnan v Menteri Dalam Negeri, Malaysia & Ors [2010] 1 MLJ 149 Gopal Sri Ram FCJ held as follows:

 

In my considered judgment the point at stake falls to be resolved with reference to the principles governing the burden of proof in an application for habeas corpus. It is settled law that on an application for habeas corpus the burden of satisfying the court that the detention is lawful lies throughout on the detaining authority. 

 

Thus the Writ of Habeas Corpus serves as a safeguard tool against the draconian application of the Law against the rights of an individual which are enshrined in the Federal Constitution.  

Sir William Blackstone SL KC was an English jurist, judge and Tory politician of the eighteenth century. He is most noted for writing the Commentaries on the Laws of England.

1723-1780