1.4 Who has standing to petition?

In Malaysia, habeas corpus is a well-known prerogative writ commonly used in

connection with Internal Security Act (ISA) detention to challenge the legality of the decision.
Such writ can be appealed by anyone or by someone acting on his or her behalf regardless of
nationality, which means any person who has a legally justified interest in the freedom of the
person whose liberty is restrained or who shows some authorization to make the application.
Thus, it is clear that the rule of locus standi lenient when it comes to an application for habeas
corpus. But if the application for the writ is made in the prisoners behalf a third person but the
prisoner repudiates the action taken, the writ will be denied. As in the case of Aminah v
Superintendent of Prison [1968] 1 MLJ 92, Mr. Haron was detained under the Restricted
Residence Enactment. His wife issue a writ of habeas corpus challenging the detention on the
ground that there had been non-compliance with Article 5 (3) of the Federal Constitution of
Malaysia in that the detainee had not been informed as soon as may be of the grounds of his
arrest. The Courts held that the detainee was fully informed by the police and knew the reasons
for his arrest, this satisfied the requirement of article 5 (3) of Constitution.

In general, a writ of habeas corpus will be granted if the applicant is able to prove that the
detention is ultra vires and there is an excessive delay in bringing the prisoner up for trial.
However, it should be noted that one must be brought before the Magistrate within 24 hours of
the detention. Besides securing the release of anyone who has been arrested or detained
unlawfully, habeas corpus can be applied for to secure bail or obtain an expeditious trial. In a
relation to this, the court has no discretion to refuse habeas corpus if the detention was, at its
inception, unlawful or has become unlawful due to subsequent non-compliance with the law.
This can be seen in the case of Andrew v Supt. Pudu Prisons (1976) and Tan Boon Liat (1977).
After all, a habeas corpus proceeding is not a suit between private parties as it is not eve a suit in
the technical sense since there is no real plaintiff and defendant, the person restrained being the
central figure in the proceeding for whose benefit it is instituted.

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