Habeas Corpus 101

a. It is based on a specific writ known in full as “habeas corpus ad subjiciendum” (literally translated as, you should have the body for submitting).

In Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors [2019] MLJU 1491 [“Chua Kian Voon”], the Federal Court remarked that:

“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 be brought to the court so that it can be determined whether or not the prisoner is being imprisoned lawfully … The words “habeas corpus” is a Latin law term. Its literal English translation is: “you have the body”.”[1]

b. It challenges the legality of a detainee’s detention.

The Federal Court in Chua Kian Voon summarised habeas corpus applications as follows:

“Put simply, a writ of habeas corpus is a challenge to the legality of a prisoner’s detention.”[2]

Challenges to the competence of the detaining authority would also fall under the scope habeas corpus application. In Jaideep Singh Dalip Singh v ASP Mahathir Abdullah Sapawi & Ors [2018] 3 MLJ 1, the Federal Court held:

“… where a challenge is made to the competence of the detaining authority to detain a person for want of the requisite powers to do so, such a challenge can be made by way of an application for a writ of habeas corpus. This was what happened in the present case. The appellants were challenging the competency of the detaining authority, who happened to be a magistrate which was vested with the powers under the POCA. Such powers under the POCA is not synonymous with the magistrate executing his powers under the Subordinate Court Act 1948.”[3]

c. It is granted as of right if the Court finds that a detainee is improperly or illegally detained.

This was expressly stated by the Federal Court in Chua Kian Voon:

“The writ of habeas corpus must be issued if the court finds that the detenu is illegally or improperly detained.”[4]

d. The burden lies with the detaining authority to show that the detention is legal.

In SK Takaliswaran Krishnan v Menteri Dalam Negeri, Malaysia [2009] 6 CLJ 705, Gopal Sri Ram JCA (as His Lordship then was) opined:

“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.”[5]

e. If the detaining authority satisfies the burden, the onus then shifts to the detainee to show otherwise.

In Chua Kian Voon, Mohd Zawawi Salleh FCJ observed that:

“After the party who made the detention succeeded in proving that the detention is in accordance with the law, the onus then shifts to the detainee, especially if he alleges bad faith (see: Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129).”[6]

f. The detainee is entitled to take advantage of any technical defect which has the effect of invalidating the detention.

The Supreme Court in Ng Hong Choon v Timbalan Menteri Hal Ehwal Dalam Negeri & 1 Lagi [1994] 3 MLJ 285 said in passing that:

“… in cases of this nature [i.e. a habeas corpus application] the appellant is nevertheless entitled to take advantage of any technical imperfection which has the effect of invalidating the restrictive order.”[7]

This position was recently affirmed by the Federal Court in Chua Kian Voon.[8] 

g. The High Court has original jurisdiction.

Article 5(2) of the Federal Constitution provides that:

“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.”

Additionally, Section 365(1) of the Criminal Procedure Code prescribes that:

“The High Court may whenever it thinks fit direct-

(1) that any person who:

(a) is detained in any prison within the limits of Malaysia on a warrant of extradition whether under the Extradition Act 1992 [Act 479]; or

(b) is alleged to be illegally or improperly detained in public or private custody within the limits of Malaysia,

       be set at liberty;”

h. Appeals are directly to the Federal Court.

Section 374 of the Criminal Procedure Code provides the following:

“Any person aggrieved by any decision or direction of the High Court under this Chapter may appeal to the Federal Court within thirty days from the date of the decision or direction appealed against.”

i. Applications can be limited in scope as a result of statute.

This was impliedly acknowledged by the Federal Court in Chua Kian Voon.[9]

For example, Section 15B(1) of the Prevention of Crime Act 1959 excludes judicial review of the Board’s act (which in the Act is defined to include habeas corpus applications) except in cases of procedural non-compliance.

j. Could possibly be suspended by Parliament but must be done so expressly or by clear implication.

The Court of Appeal in Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor [1999] 1 MLJ 266[10] referred to the decision of the United Kingdom’s Court of Appeal in R v Governor of Pentonville Prison & Anor, Ex parte Azam [1973] 2 WLR 949 whereby Lord Denning MR noted:

“These provisions as to appeal give rise to a question of the first importance. Do they take away a person’s right to come to the High Court and seek a writ of habeas corpus? I do not think so. If Parliament is to suspend habeas corpus, it must do so expressly or by clear implication.”

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Dato Sri Ismail Sabri & the Interim Prime Minister Role

Tan Sri Shahrir bin Abdul Samad, a former Minister of Domestic Trade and Consumer Affairs, has opined that Dato’ Sri Ismail Sabri bin Yaakob (“DSIS”) could be the interim Prime Minister if Tan Sri Dato’ Haji Mahiaddin bin Md Yasin (“TSMY”) resigns as Prime Minister.[1]

DSIS was recently appointed as the Deputy Prime Minister[2] and it would be reasonable to assume that DSIS would step in as interim Prime Minister in the event of a vacancy of the Prime Minister position.

First of all, it is important to note that the position of Deputy Prime Minister is not provided for in the Federal Constitution.

Rather, it has come about as a result of pragmatism[3] and over the years has become somewhat of a constitutional convention.[4]

This article will discuss the viability of Tan Sri Shahrir’s proposal based on 2 possible reasons which could be given in the event TSMY resigns.

Loss of Confidence

If TSMY ceases to command the confidence of the majority of the members of the lower House of Parliament, he has two options – namely to resign (and tender the resignation of the Cabinet) or to request for the dissolution of Parliament.

Article 43(4) of the Federal Constitution provides the following:

“If the Prime Minister ceases to command the confidence of the majority of the members of the House of Representatives, then, unless at his request the Yang di Pertuan Agong dissolves Parliament, the Prime Minister shall tender the resignation of the Cabinet.” (emphasis mine)

Article 43(4) of the Federal Constitution uses a mandatory word, i.e. “shall,”[5] rather than a discretionary word such as “may” thereby leaving no room for an individual to remain as Prime Minister if he/she no longer commands the confidence of the majority of the members of the Dewan Rakyat.

Option 1: Request for Dissolution of Parliament

Although TSMY has the option of requesting for the dissolution of Parliament, on this issue, the Yang di-Pertuan Agong (“YDPA”) has absolute discretion and does not have to follow the advice of the Cabinet.

Article 40(2) of the Federal Constitution provides that:

“The Yang di-Pertuan Agong may act in his discretion in the performance of the following functions, that is to say:

(b) the withholding of consent to a request for the dissolution of Parliament …”

If TSMY requests for a dissolution of Parliament and the YDPA withholds his consent for the same, TSMY has to tender the resignation of the entire Cabinet.

Option 2: Resign

If TSMY immediately opts to resign as a result of loss of confidence of the majority of the members of the lower House of Parliament (Dewan Rakyat), he also has to tender the resignation of the entire Cabinet.

If that happens, DSIS will no longer be the Deputy Minister and the next in line.

There would be little basis, save in the interest of preserving stability pending either the appointment of an individual as the Prime Minister or the holding of general elections, to appoint DSIS as interim Prime Minister.

Ill-health

TSMY previously suffered from pancreatic cancer and underwent chemotherapy.[6]

If TSMY resigns due to ill-health, for example, DSIS could be appointed as interim Prime Minister.

This appointment would be temporary until the YDPA is satisfied that an individual commands the confidence of the majority of the members of the Dewan Rakyat and can be appointed as the Prime Minister.

However, at the present moment, there are questions surrounding the numbers of Members of Parliament supporting TSMY.[7]

This would not prevent the appointment of DSIS as interim Prime Minister but would undoubtedly affect the legitimacy of his appointment.

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What could happen to the Proclamation of Emergency and/or the ordinances?

The Prime Minister’s Department has released a media statement announcing that the Government has agreed to advise the Yang di-Pertuan Agong (“YDPA”) to summon Parliament.[1]

The lower house of Parliament (Dewan Rakyat) is scheduled to sit for 5 days from 26th July 2021 to 29th July 2021, and 2nd August 2021, while the upper house of Parliament (Dewan Negara) is scheduled to sit for 3 days from 3rd August 2021 to 5th August 2021.

Pursuant to Article 150(3) of the Federal Constitution, the Proclamation of Emergency and ordinances made pursuant to the Proclamation will be laid before both Houses of Parliament.

The ordinances which have been promulgated by the YDPA thus far, include the following:

i. Emergency (Essential Powers) Ordinance 2021;[2]

ii. Emergency (Essential Powers) (No. 2) Ordinance 2021;[3] and

iii. Emergency (Essential Powers) (Amendment) Ordinance 2021.[4]

What could happen to the Proclamation and/or ordinances?

Article 150(3) of the Federal Constitution empowers Parliament to annul the Proclamation and/or the ordinances.

However, Parliament’s powers to annul the Proclamation of Emergency is inconsequential with the Emergency scheduled to only last until 1st August 2021.[5]

By the time any annulment resolution is tabled, debated, and passed, the Proclamation of Emergency would have ceased to be in force (presuming there is no extension to the current Proclamation or the issuance of a new Proclamation).

The ordinances, however, as a general rule, will only cease to have effect six months after the Proclamation of Emergency ceases to be in force.[6]

Parliament could, during the upcoming sitting, annul the ordinances made and the ordinances would cease to have effect sooner than the six months general rule.[7]

Further ordinances?

The ordinances which have been promulgated thus far have been promulgated by the YDPA since both Houses of Parliament are/were not sitting concurrently.[8]

In the upcoming parliamentary sitting, strictly speaking, the Dewan Rakyat and Dewan Negara are not sitting concurrently (i.e. at the same time).[9]

This would mean that, in theory, one could argue that the YDPA could still promulgate ordinances even while the upcoming parliamentary sitting is underway.

However, in view of our constitutional structure, the YDPA (as a constitutional monarch) would not likely do so.

Additionally, historically, the Dewan Rakyat and Dewan Negara rarely sit concurrently. In reality, the Dewan Negara almost always has its sitting after the Dewan Rakyat.

In view of the above, there will unlikely be any further ordinances promulgated once the Dewan Rakyat begins its sitting on 26th July 2021.


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Non-Payment of Remuneration as a Ground for Constructive Dismissal

In a claim of constructive dismissal, the employee ends the contract of employment and bears the burden of proving that he/she was constructively dismissed.[1]

In order to succeed, the employee “must establish that there has been some conduct on the part of the employer which breach an express or implied term of the contract of employment going to its very root.”[2]

The Federal Court in Ngeow Voon Yean v. Sungei Wang Plaza Sdn Bhd / Landmarks Holding Bhd [2006] MLJU 219 recognised that the payment of remuneration is the “basic consideration of [an] employer.”[3]

Thus, the non-payment of remuneration would undoubtedly amount to a breach of an express term of the contract of employment which goes to the very root of the same.

In Cekal Teguh Sdn Bhd v Mahkamah Perusahaan Malaysia & Ors [2019] MLJU 1402, Nordin bin Hassan J (now JCA) held:

“This non payment of salaries is a fundamental breach of the contract of employment which entitled the 2nd to 7th respondents to claim for constructive dismissal and was rightly decided by the 1st respondent that 2nd to 7th respondents were constructively dismissed without just cause and excuse by the applicant.”[4]

Mohamad Ariff JC (later JCA) echoed similar sentiments in Parimaladevi a/p P Ponnusamy v Mahkamah Perusahaan Malaysia & Anor [2009] MLJU 1692:

“Most of all, there was a non-payment of salary when it was due, and the law is clear that failure to pay salary is a fundamental breach of contract entitling the employee to consider himself or herself to be constructively dismissed. See Equitylink Consultants (M) Sdn Berhad v Doctor Jayaprakash Mohan Rao [1992] 1 ILR 492”[5]

The courts have, in the past, allowed constructive dismissal claims based on non-payment of remuneration.

Both Kejuruteraan Samudera Timur Sdn Bhd v Seli A/K Mandoh & Anor [2004] 5 MLJ 179 and North Malaysia Distributors Sdn Bhd v Ang Cheng Poh [2001] 3 ILR 387 concern cases of non-payment of remuneration as a result of unilateral deduction by the employer.[6] The Industrial Court in both cases, allowed the employee’s claim of constructive dismissal.

In Dr. Rayanold Pereira v. Menteri Sumber Manusia & Anor [1997] 3 CLJ Supp 116, the Minister of Human Resources refused to refer to the Industrial Court a claim of constructive dismissal due to non-payment of remuneration.[7]

Nik Hashim JC (later FCJ) allowed the judicial review application[8] and held that, “The allegation of breach of contract of employment through the salary cut and non-payment of March 1993 salary are not without basis. There is no provision for loan in the contract enabling the salary cut.”[9]

An employee claiming constructive dismissal due to the non-payment of remuneration has to terminate the contract of employment within a reasonable time after the non-payment.[10] Failing which, this could amount to a waiver of the employer’s actions and would defeat a claim of constructive dismissal.[11]

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Further Deferring the Sarawak State Elections

Further Deferring the Sarawak State Elections

Constitutionally, unless sooner dissolved, state legislative assemblies will be dissolved five years from its first sitting.[1]

Since the Sarawak State Legislative Assembly had its first sitting on 7th June 2016,[2] the state legislative assembly should have been dissolved (at the latest) by June 2021 and state elections be called within 60 days from the date of the dissolution.[3]

As a result of the nationwide Proclamation of Emergency issued on 11th January 2021[4] and the Emergency (Essential Powers) Ordinance 2021, the “provisions relating to an election for the election to a State Legislative Assembly …, Constitution of any State and any State Law [has] effect.”[5]

This means that the constitutional necessity for the Sarawak state elections to be held is temporarily suspended[6] until either the Emergency is no longer in force or the Yang di-Pertuan Agong sets a state election date after consultation with the Yang di-Pertua Negeri of Sarawak.[7]

At the present moment, the Emergency is scheduled to cease after 1st August 2021[8] and the Malay Rulers have stated that “there is no necessity to place the country under a state of emergency after Aug 1, 2021.”[9]

Tan Sri Datuk Amar Dr. James Jemut Masing, the Deputy Chief Minister of Sarawak, has voiced his concerns that the Sarawak state elections have to be conducted once the Emergency comes to an end.[10]

At this juncture, such concerns are perfectly valid as the Sabah state elections had catastrophic effects on COVID-19 cases in the state.

As admitted by Tan Sri Dato Seri Haji Mahiaddin Bin Haji Md Yassin, the current Prime Minister of Malaysia,[11] and supported by researches which have been conducted,[12] the Sabah state elections resulted in a third wave of COVID-19 infections in the country.

One option to further defer the Sarawak state elections would be by way of a statewide Proclamation of Emergency.

If what happened in Sabah were projected/predicted to happen to Sarawak as a result of the Sarawak state elections, this would be a “grave emergency … whereby the security, or the economic life, or public order in … [Sarawak] is threatened.”[13]

Precedents for a statewide Proclamation of Emergency exist. In the past, statewide Emergencies were declared in Sarawak[14] and in Kelantan[15] due to political instability.

Prior to the nationwide Emergency, the Yang di-Pertuan Agong also issued a Proclamation of Emergency over the parliamentary constituency of Batu Sapi resulting in a postponement of a by-election due to a casual vacancy.[16]

As of 21st June 2021, only 29.89% of the population of Sarawak has been vaccinated.[17]

A further Emergency in Sarawak would enable the health authorities to continue their vaccination efforts and potentially achieve herd immunity (or full vaccination)[18] before the Sarawak state elections are held.

The Election Commission would also be able to use the time to refine its standard operating procedures for elections conducted in the midst of the pandemic.

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Admitting Further/Fresh Evidence: The ‘Important Influence’ Test or the ‘Determining Influence’ Test?

In the past, I have argued that the English Court of Appeal decision in “[Ladd v Marshall [1954] 3 All ER 745] is redundant (at least in relation to introduction/admission of fresh/further evidence in the Court of Appeal and below) in light of the relevant legal provisions which have been introduced vis-a-vis the introduction/admission of fresh/further evidence.”[1]

Amongst others, Rule 7(3A) of the Rules of the Court of Appeal 1994 and Order 55 Rule 7 of the Rules of Court 2012[2] provides that new evidence shall not be admitted unless “the new evidence, if true, would have had or would have been likely to have had a determining influence upon the decision of” the High Court or the subordinate court as the case may be [“Determining Influence”].

Meanwhile in Ladd v Marshall [1954] 3 All ER 745, “the evidence must be such that, if given, it would probably have an important influence on the result of the case, although it need not be decisive”[3] (“Important Influence”).

The Determining Influence requirement clearly calls for a higher threshold to be met compared to the Important Influence requirement.

A piece of new evidence can have an important influence but not necessarily have a determining influence and the legal provisions which have been introduced, require the latter.

Unfortunately, some subsequent Court of Appeals and High Courts have incorrectly applied the Important Influence requirement rather than the Determining Influence requirement thereby muddying Malaysian jurisprudence on the admission of fresh/further evidence in the Court of Appeal and below.

Court of Appeal

Examples include:

i. Dato’ Ahmad Johari bin Tun Abdul Razak v A Santamil Selvi a/p Alau Malay @ Anna Malay (administratix for the estate of Balasubramaniam a/l Perumal, deceased) & Ors and other appeals [2020] 6 MLJ 133;[4]

ii. Ho Min Hao & Anor v Ho Yee Chin & Anor [2017] MLJU 06;[5]

iii. Ting Sieh Chung @ Ting Sie Chung v Hock Peng Realty Sdn Bhd [2016] 5 MLJ 342;[6]

iv. Datuk Seri Panglima Mohd Sari bin Datuk Hj Nuar v Vee Seng Development Sdn Bhd & Ors [2009] 6 MLJ 643;[7] and

v. Mid Valley City Sdn Bhd & Anor v Arkitek Tenggara Sdn Bhd [2003] 1 MLJ 66[8]

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