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Tuesday, November 29, 2016

Court dismisses Maria's habeas corpus application



The Kuala Lumpur High Court has ruled that Bersih chairperson Maria Chin Abdullah’s writ of habeas corpus to be void, since she has already been released yesterday.
This is despite her lawyers urging the court to hear the other reliefs sought by Maria.
After an hour-long hearing, Judicial Commissioner Nordin Hassan today said there is no need for him to decide on her release.
As for whether to hear on the other reliefs sought by Maria, Nordin said he is not in a position to decide on the merits of the case since the respondent had not filed an affidavit-in-reply to Maria’s habeas corpus application.
“Therefore, the application is void,” he said.
Maria was represented by the lawyer Gurdial Singh Nijar, Ambiga Sreenevasan, Honey Tan and several others. Home Ministry legal adviser Mohammad Al-Saifi Hashim and senior federal counsel Muhammad Sinti appeared for the respondent, Supt Tham Lai Kuan.
Four representatives from the Bar Council were also present to hold watching brief.
Maria was arrested during a raid on Bersih’s office on Nov 18. She was investigated under Section 124C of the Penal Code for allegedly attempting activities detrimental to parliamentary democracy.
This is over the allegation that Bersih had received funding from the Open Society Foundations, which is linked to the financier George Soros.
Maria was held in solitary confinement under the Security Offences (Special Measures) Act 2012 (Sosma) until her release at about 4.30pm yesterday.
Apart from attempting to secure her unconditional release, her writ of habeas corpus filed on Nov 22 also sought "any orders deem appropriate and reasonable by the court including general and/or exemplary damages".
While in court, Gurdial argued that the court has discretion to hear the habeas corpus application although Maria is no longer physically detained by the state, which is a prerequisite such an application.
This is because based on precedent set by the Federal Court, the court may still hear a habeas corpus application even though the applicant had been released if there is still a "live issue" in the case that is of public interest.
He pointed to Chief Justice Arifin Zakaria’s statement in January that the court has heard 110 Sosma cases last year and inspector-general of police Khalid Abu Bakar’s statement earlier today not ruling out further arrests on those who allegedly received foreign funding, to show that detentions under Sosma are an ongoing issue.
Exercise rendered academic
Meanwhile, Al-Saifi countered that the habeas corpus application is not the correct forum to hear the issues that Gurdial wanted to raise about Sosma.
As for the affidavit-in-reply, he said the exercise has been rendered academic following Maria’s release, because the core issue of the application was to secure her freedom.
Speaking to reporters outside the courtroom, Gurdial and Ambiga told reporters that Maria had instructed them to appeal against the High Court decision.
“We must vigorously pursue a cause of action to challenge Sosma. That is very clear from what Maria has told me - that we must challenge Sosma,” Ambiga said.
Maria explained that the appeal is not only about her, but also about activists such as the NGO Empower that is being investigated for alleged security offences that can be detained and tried under Sosma.
“They really owe the public an explanation on Sosma. It is not just about me and my case, but we see that it is now affecting Empower.

“Is it going to be extended to other NGOs, other individuals? We have to know whether the detention is legal or illegal, that is a national question that we have to answer,” she said.
Ambiga added that another matter to be raised when the case goes to the Court of Appeal is the lack of accountability on why Sosma had been used against her.
“What is unsatisfactory is that there has been no accountability as to why Maria was treated the way she was under Sosma, and that is something that we will explore in the court of appeal since we now have instructions to (appeal),” she said.- Mkini

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