Lawyers for Liberty is gravely dismayed over the Federal Court’s decision on Feb 28 to throw out K Selvach’s appeal against the dismissal of his habeas corpus application by the High Courton Dec 12, 2010.
The Federal Court affirmed the decision made by the High Court dismissing Selvach’s appeal by ruling that the High Cour thas no jurisdiction to hear Selvach’s habeas corpus application which was fixed for hearing on Dec 12, 2010.
Selvach was challenging the legality of his detention order under Section 3(1) of the Dangerous Drugs (Preventive Measures Act) 1985 as it has become academic since the home minister had issued the two-year detention order under Section 6(1) of the same Act on Dec 13, 2010.
The Federal Court had failed to address the issue of contempt of court committed by the home minister who had maliciously proceeded to issue a two-year detention order pending hearing of Selvach’s habeas corpus application in the High Court.
The Federal Court also failed to appreciate the argument advanced by Selvach’s counsel that the long adjournment granted by the High Court upon the application made by the respondent had given the home minister the opportunity to maliciously issue the detention order so as to frustrate the hearing of the habeas corpus application which was still pending in the High Court.
The court had failed to uphold the established principles that enunciate that habeas corpus applications must be heard expeditiously as it is regarded as the highest constitutional safeguard accorded to an individual whose fundamental liberty has been infringed, particularly by draconian preventive laws which license detention without trial.
The Federal Court’s refusal to uphold this established principle had conveniently allowed the home minister to resort to malicious tactical maneuver of issuing the two-year detention order even though he was well aware of the fact that the hearing to challenge the 60-day order was still pending in the High Court.
The Federal Court had failed to consider the fact that the detention order was made based on the allegation that Selvach was involved in drug trafficking activities in 2007 but when he was arrested in 2009 he was released on the same night of his arrest and was never charged with any offence.
The Federal Court therefore failed in its duty to uphold that thebasis for Selvach’s detention is tainted with mala fide as it had failed to show that it had reasons to believe that there are grounds justifying the detention of Selvach under Section 3(1) of the Act which resulted in illegality of the two-year detention order which was subsequently issued by the home minister under Section 6(1) of the Act.
In the course of submission by Selvach’s counsel, the Federal Court made a regressive remark in response to the reference made by Selvach’s counsel to the development of the law in relation to habeas corpus applications in other jurisdictions, in particular the United Kingdom by stating that there is no necessity to refer to the position of the law in other jurisdictions as it is considered as “other stories”.
The court, being entrusted to uphold justice and fundamental liberties has time and again failed to discharge its constitutional duties to uphold established principles of the law on habeas corpus as it has once again failed to carefully scrutinise the application of the abusive preventive laws in the hands of the home minister in ensuring that the power given by law to detain must be construed strictly and in cases of doubt, favour should be given to the person whose fundamental liberty has been deprived..
The Federal Court’s refusal to look into the development of the law in other jurisdictions, for instance, in the United Kingdom amounts to a regressive step towards law reform in the area of human rights.
This regressive approach taken by the highest court of the land in construing the power to detain a person poses an irreversible threat to one’s personal liberty which is guaranteed under the Federal Constitution.
Continued disregard of the importance of upholding one’s fundamental liberty will result tremendously in the erosion of the principle of freedom, liberty, justice and humanity.