Should a court consider an application for a writ of habeas corpus - a legal action to secure the liberty of a detainee - when the applicant is already freed?

This was the question posed by the Federal Court to lawyer Edmund Bon (right) representing former detainee Sejahratul Dursina @ Chomel Mohamad who is appealing against a High Court ruling dismissing her habeas corpus application on the basis that it had become academic.

High Court judge Zaleha Zahari had on June 14, 2002 ruled that her challenge against her detention and arrest under the Internal Security Act 1960 (ISA) was academic as she was then no longer a detainee following the issuance of a "restricted residence" order against her.

Chomel - wife of a militant suspect Yazid Sufaat who is under ISA detention at the Kamunting Detention camp - had named the government, the home minister and the inspector general of police as respondents.

Her appeal was today heard before a five-member panel of judges: Justices Abdul Hamid Mohamed, Pajan Singh Gill, Allaudin Mohd Sheriff, Richard Malanjum and S Augustine Paul.

At the outset of the appeal, the court said it would decide whether the preliminary issue of jurisdiction before deliberating on the substantial merits of the appeal.

"Do we have a jurisdiction to hear an appeal on a dismissed habeas corpus application when the detainee has since been released?" Abdul Hamid asked .

Bon argued that Chomel's release should not deny the court from hearing the substantive merits of the appeal which is questioning the high court's decision to dismiss the appeal on basis of it being academic.

'Allow the appeal'

"Legal precedents say that this court has the jurisdiction as shown in the case of Ezam (Mohd Nor & ors vs Inspector General of Police) where the Federal Court had allowed the challenge against a detention order by the police, issued the writs of habeas corpus and ordered for their released despite the detainees not then being in police custody," he submitted.

Hamid: "Suppose we agree with you and we listen to the appeal and agree with you...we allow the appeal and so what do we do next? Issue a writ of habeas corpus. Isn't that an academic exercise since the appellant is already released?"
Bon: "We are not asking this court to issue a writ of habeas corpus but just to make an order that the appeal be allowed, that the High Court decision be quashed and to say due to the restriction order, the issue whether or not to grant the writ habeas corpus is no longer an issue.

When asked by the court what would such decision benefit Chomel, the lawyer replied that it will vindicate her rights.

"It will also provide her assistance in the event that she decides to claim for damages for wrongful arrests, unlawful detention and illegal imprisonment."

He urge the court to issue a certain guidelines on when a habeas corpus application becomes academic submitting that such applications cannot be made academic so long as the applicant is still under detention throughout the hearing.

"In this case, he said that the arrest was made on April 17, 2002 and an application for habeas corpus was filed in May 2002. The application was heard on June 4, 7, 10 and 12, 2002. And the court had set June 14 for decision. It was only on June 13 that the authorities issued the restricted residence order of the appellant to Ampang, Selangor for two years."

"The relevant and material date to be considered for the purpose of deciding the legality of an order in a habeas corpus application was the date of hearing. In this case the restricted residence order was made after the matter was heard. So the High Court therefore had jurisdiction to entertain and decide on the application."

He also urged the court to proceed to hear the substantive matter of the appeal because it involves the public's interest.

'Reject the appeal'

"There are so many issues which includes the constitutionality of section 73 (1)(b) of the ISA (which allows police 60-day detention under the ISA) which we submit is ultra vires to the constitution).

"The procedural requirement of the provision and issues of access to counsel which was denied to applicant in this case."

Meanwhile, senior federal counsel Hanafiah Zakaria - representing the government - argued that the court should reject the appeal at this stage as the high court was correct in its ruling that the application was an academic exercise.

"The judge was right when he said that the application was no longer tenable because before she could give a decision, her jurisdiction had ceased as the applicant had then been released from ISA detention.

He also disagreed with Bon's contention that hearing dates of a habeas corpus application should be made the determining factor on whether it can be deemed as academic.

"We submit that the determining factor is the date of decision. Any development occurring before the decision must be accountable. In this case the restricted residence order was issued a day before and it is therefore an academic exercise."

The court reserved judgement to another date yet to be fixed.