Judge Zaini Mazlan, in allowing R Ramesh’s habeas corpus application yesterday, said the doctrine of res judicata did not apply in cases where a person is under the custody of the authorities.
Res judicata is the Latin term for “a matter decided”, referring to cases which cannot be raised again, whether in the same, or in a different court.
Lawyer Yasmeen Soh, who was part of the team representing Ramesh, said Zaini will release the written grounds tomorrow.
Gopal Sri Ram, the lead counsel, was also assisted by Peter Siew and Khairul Anwar Hairudin.
Senior federal counsel Mohamad Sinti and Farah Ezlin Yusop Khan represented the government.
On Dec 27, Zaini dismissed Ramesh’s first application on grounds that it was academic based on the Federal Court ruling of Goh Leong Yong vs ASP Khairul Fairoz Rodzuan.
However, on Jan 7, a Federal Court bench in the case of Lei Meng vs Inspektor Wayandiana Abdullah held that such applications for unlawful arrest cannot be academic even if criminal suspects investigated under the Prevention of Crime Act (Poca), a preventive law, were no longer under police custody.
Judge Nallini Pathmanathan said the High Court could also inquire into the legality of arrest even if the Poca board had issued detention orders or the detainees had been freed.
In the ground-breaking decision, Nallini said the right to challenge unlawful detention and obtain an order of release was protected under Article 5(2) of the Federal Constitution.
Government lawyers argued that the appeal by the 25 Chinese nationals was academic as they had been freed last year after six months’ detention in a Bentong prison.
In the present case, Ramesh filed his second habeas corpus application on Feb 21 this year.
Sri Ram last week submitted that Article 5(2) must be construed generously and liberally, because it is a protection of a fundamental right.
He said circumstances had changed in Ramesh’s favour, in light of the apex court’s decision in Lei Meng, which made it clear that the preliminary objection of such an application being rendered academic was no longer good law.
Sri Ram said it would be a “manifest injustice” to Ramesh if he had to await the outcome of this appeal before the Federal Court.
The lawyer gave an undertaking to the court that his client would withdraw the appeal pending before the apex court.
According to a supporting affidavit filed by Ramesh’s son Thiban Raj, his father had been under Poca detention since Nov 12, 2020.
On Dec 29, 2020, the Poca board issued a further detention order for two years. Ramesh then filed his first habeas corpus application on May 25, 2021 and Zaini heard the matter on Oct 4.