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The Right of Habeas Corpus


Salam everyone

The news has been rife with ISA detentions and applications for writs of habeas corpus. These are “interesting times” to say the least. I’m not going to comment on all the political turmoil and whatnot. I don’t have all the facts and it would be irresponsible of me to say anything about it. So today I’m going to write about the writ of habeas corpus in general.

As a registrar in our country’s court, I see these applications all the time. Most of these applications stem from detentions without trial, something that can happen in our country by virtue of not only the Internal Security Act but also the Public Order and Prevention of Crimes Ordinance and the Dangerous Drugs (Special Preventive Measures) Act. But I will not go into depth about these acts, perhaps in a later post.

Article 5 of the Federal Constitution confers the fundamental right of libertry to all citizens of this country. So a person who has been detained without being given due process before the law can apply for a writ of habeas corpus to release him from detention and restore his liberty forthwith. People who have been detained without trial will almost always file for a writ of habeas corpus as they will certainly claim that they were not given due process before the law.

The acts that I mentioned above confers certain rights to the government to strip someone of his freedom and put him in custody for a period of time if those provisions of those acts are adhered to. Those detained will challenge the government on the grounds of non-adherence to those provisions in the law.

An application for writ of habeas corpus, filed by the detainee’s attorney, will highlight through sworn affidavits that the government had failed to adhere to certain provisions and that the detention was unlawful and that the detainee should be released forthwith. Common grounds in these applications include failure to inform the detainee of his rights and reason for detention; refusal of the authorities to allow the detainee a right to counsel; the rights of the detainee has been prejudiced; etc etc.

The government, through the Ministry of Internal Security and the Attorney General’s Chambers will answer the allegations made by the detainee’s affidavits by replying with sworn affidavits of their own, either by denying the allegations made or justifying their actions thus.

Finally the court will decide based on the affidavits filed and determine whether the detention of the detainee was lawful and adhered to the provisions of law or otherwise. If the court finds the detention to be unlawful then the detainee will be granted a writ of habeas corpus and he would be released immediately.

A writ of habeas corpus is indeed most important in safeguarding one of the most fundamental of human rights i.e. liberty

That’s all for today. Perhaps I will write more on the acts that I have mentioned above later. Thanks for reading.

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