Hishamudin Mohd Yunus J:

Encik Abdul Ghani Haroon and Encik Gobalakrishnan a/l Nagappan are officials of the political party, Parti Keadilan Nasional. They had been separately arrested under s. 73(1) of the Internal Security Act 1960 (the ISA). Encik Gobalakrishnan was arrested at 11.50pm on 10 April 2001 at the Kuah Police Station, Langkawi, whilst Encik Abdul Ghani was arrested at 10.25am on 11 April 2001 at the Kuching International Airport.

The families, on behalf of the two detainees, have separately applied to this court for a writ of habeas corpus, through Criminal Application 44-9-2001 and Criminal Application 44-10-2001. The supporting affidavit of Encik Ghani's application is deposed by his wife Puan Roslijah binte S. Syed, whilst the supporting affidavit for Encik Gobalakrishnan's application is deposed by his brother, Encik Deven a/l Nagappan. By consent, these two applications have been consolidated and are being heard together.

The common respondent in the applications is the Inspector General of Police.

A few days before the commencement of the hearing on 23 April 2001, the Deputy Registrar of this court had caused to be issued and served on the respondent a "Notice to Produce" so that the applicants could be present at the hearing of their applications. This is the normal practice of this court in all habeas corpusproceedings. But the respondent has failed to comply with the order. The respondent has no intention to disobey the court's order. The position taken by the respondent is that, in law, the applicants have no right to be present at the hearing of their applications.

The applicants contend otherwise.

Thus there is a preliminary issue before this court. In law do the applicants have the right to be present at the hearing of their applications?

Encik Sivarasa for the applicants insists that they have the right to be present.

The learned Senior Federal Counsels, Encik Abdul Wahab and Encik Abdul Rashid Sudin, on the other hand, submit that they have no right, citing Minister for Home Affairs, Malaysia & Anor v. Karpal Singh (No 2)[1988] 3 MLJ 85.

Now art. 5(1) of the Federal Constitutionstates:

Liberty of the person

5(1) No person shall be deprived of his life or personal liberty save in accordance with law.

Then cl. (2) of art. 5 provides:

(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court and release him.

The learned Senior Federal Counsels further argue that the words "... shall order him to be produced before the court and release him" mean that the court may only order the production of the detainee in court when the court has made a decision that he should be released.

With respect, I cannot accept this argument. On the principle of interpretation that should be adopted in interpreting constitutional provisions pertaining to fundamental rights, the Bermuda case of Minister of Homes Affairs v. Fisher[1980] AC 329 is instructive. In this case which concerned fundamental rights and freedom guaranteed by the Bermuda Constitution, Lord Wilberforce, on behalf of the Privy Council, said that the Constitution should be given "a generous interpretation, avoiding what has been called 'the austerity of tabulated legalism', suitable to give to individuals the full measure of the (fundamental liberties) referred to."

The above principle was adopted by our Supreme Court in Dewan Undangan Negeri Kelantan v. Nordin Salleh[1992] 2 CLJ 1125; [1992] 1 CLJ 72 (Rep)where Abdul Hamid Omar LP said (at p. 1130):

Secondly, as the Judicial Committee of the Privy Council held in Minister of Home Affairs v. Fisherat p. 329, a constitution should be construed with less rigidity and more generousity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not fo