KUALA LUMPUR, Nov 29 ― The High Court here ruled today against hearing a habeas corpus application from Bersih 2.0 chairman Maria Chin Abdullah against her 10-day detention without trial following her release a day earlier.
High Court judicial commissioner Datuk Nordin Hassan said he had yesterday received a letter from the Home Ministry's legal adviser, which stated that Maria has been released and that the government will not be filing affidavit or court documents to respond to the case.
“The court is also not in position to decide on merits of application as the full facts are not before the court, as no affidavit in reply was filed by the respondent.
“Therefore the application for the habeas corpus writ that was filed by the applicant in this case has been dismissed,” Nordin said in a packed courtroom this afternoon, adding that he will decide on the legal costs later.
Today was initially set to be the hearing of Maria's habeas corpus application to challenge her detention under the Security Offences (Special Measures) Act 2012, which allows detention without trial for 28 days.
Maria's lead counsel Gurdial Singh Nijar had argued that the case was of “public interest” that needed to be heard in court even after her release as it would allow for the courts to deliberate on and decide on the limits of Sosma and how it applies to Malaysians.
“So the question is quite simple. This is an issue that goes beyond Maria Chin Abdullah. It deals with Sosma legislation.
“The whole legislation is awaiting some kind of clarification on the matter and it is in your lordship's discretion entirely whether or not there should be mature reflection by the judiciary as to the exercise of powers,” Gurdial said.
He also highlighted that 110 cases were decided on Sosma last year.
Gurdial also said the Maria's habeas corpus application was not academic as it went beyond seeking to secure her release, noting that there were several other issues that remained “live” including seeking compensation for her detention under Sosma.
He pointed out that the court still had to decide whether Maria's arrest and detention was lawful before deciding on whether to compensate her.
Last Tuesday, Maria's lawyers filed a habeas corpus application to seek five orders, including for Maria to be brought to court throughout the hearing and for her immediate release, as well as an order to bar any rearrest or detention again for the same reasons after she has been released.
The two other court orders sought are to bar any conditions or restrictions to be imposed on Maria under Sosma, and also for the court to grant reliefs such as general damages and exemplary damages.
Mohammad Al-Saifi Hashim, the Home Ministry's legal adviser, had earlier told the court that the whole habeas corpus application had turned academic and should be discontinued.
“The whole world knows Maria Chin has been released and I wrote a letter to the court that the entire application is academic,” he said, later citing the same reason to explain why the government had not filed the affidavit in reply by the court's deadline of this Monday.
The habeas corpus application was filed against Superintendent Tham Lai Kuan, the Inspector-General of Police, the home minister and the government of Malaysia.
When met outside the courtroom, Gurdial said an appeal will be filed against the High Court's decision today.
“So I think in a country that is governed by rule of law, we cannot allow unfettered discretion to remain in the hands of the policing authorities alone because we have the courts, we have the executive, we have the legislative. There must be checks and balances, that is the meaning of rule of law, for this reason our client has instructed us to pursue this through an appeal,” he said.
Maria's other lawyer Datuk Ambiga Sreenevasan said the lack of an affidavit in reply by the government meant there was no “accountability” on the reason for Maria's treatment during the Sosma detention, while lawyer Honey Tan said the case should have gone on as the police had just yesterday said Sosma is being used for a probe on the Empower group that Maria used to lead.
Maria, who was present in court today, said the public deserves to know how and why Sosma is applied by the government.
“It's not just about me. Now we see it's affecting Empower and is it going to be expanded to other NGOs, other individuals. We have to know is the detention legal or illegal,” she said, describing Sosma as akin to the now-abolished Internal Security Act 1960.
Police had arrested the 60-year-old just a day before the Bersih 5 rally on November 19 and invoked Sosma to detain her without trial, reportedly placing her in solitary confinement in a windowless cell kept permanently lit at an undisclosed location.
The investigation on Maria was carried out under Section 124C of the Penal Code ― which criminalises the attempt to commit activities detrimental to parliamentary democracy ― following allegations that Bersih 2.0 had received foreign funding.
Maria today told reporters that she was only given a copy of the Muslims' holy book Quran, a mattress, a pillow and blanket two days after the Human Rights Commission of Malaysia helped request for it.
She confirmed she was allowed access to medications for her medical conditions and a weekly visit by an in-house doctor, but was denied a visit by her family on the second Sunday despite that being a day for weekly permitted visits.
“It's very testing on your patience because on top of your sleeping conditions, I was interrogated every day. The first few days is about eight hours, after that it's about six hours per day, the same questions all over again,” she said, adding that she had to wear black goggles and be handcuffed whenever she was taken out from her cell.