Haidar Mohd Noor FCJ:

The issue in this appeal is whether the learned judge at the High Court, Shah Alam was right in ruling on 4 May 2001 that Abdul Ghani bin Haroon and Gobalakrishnan a/l Nagappan ("the applicants") had the constitutional right to be present at the hearing of their habeas corpusapplications ("applications") videNos. 44-9-2001 and 44-10-2001 wherein he ordered for their production in court. The applications, by consent, were consolidated. The applications were supported by the affidavit of Puan Roslijah binti S. Syed, the wife of Abdul Ghani and the affidavit of Encik Deven a/l Nagappan, the brother of Gobalakrishnan. Ketua Polis Negara was cited as the respondent in their applications.

On 8 May 2001 an interim order of stay was granted by Abdul Malek Ahmad, FCJ, against the orders of the learned judge on the criminal applications filed by the respondent pending an appeal by the respondent to the Federal Court pursuant to s. 374 of the Criminal Procedure Code("CPC").

When the two criminal applications came up for hearing on 14 May 2001, it was agreed by the parties to treat both criminal applications as appeals. We agreed and after hearing both parties, we reserved our decision. On 16 May 2001 we allowed the appeals of the respondent and set aside the orders of the learned judge. As intimated, we now proceed to give our reasons.

Brief Background

The applicants are officers of a political party, Parti Keadilan Nasional. They were arrested separately on 10 April 2001 and 11 April 2001 under s. 73(1) of the Internal Security Act 1960("ISA").

There was no formal application filed by the applicants for their presence at the hearing of their applications. The issue arose in this way.

According to the learned judge, the deputy registrar of the High Court caused to be issued and served on the respondent a "notice to produce" the applicants in respect of their habeas corpusproceedings. It is, it seems, the normal practice of the Shah Alam High Court in all habeas corpusproceedings. In this case the respondent did not comply with the order on the ground, according to the learned judge, that the respondent took the position that, in law, the applicants had no right to be present at the hearing of their applications. Unfortunately, the learned judge did not show or at least indicate the details of such cases of the practice of the Shah Alam High Court and there had been compliance thereof by the respondent previously. If there had been compliance by the respondent previously, then why in this particular case should the respondent take a different stand. We were therefore not clear on the so-called practice. Be that as it may, in this case, the applicants contended that they had the legal right to be present.

The learned judge took upon himself to decide the preliminary issue of whether, in law, the applicants have the legal right to be present at the hearing of their applications.

At the hearing of the appeal, the Senior Federal Counsel informed us that counsel for the applicants conceded that the order of the learned judge was appealable under s. 374 of the CPC. The concession by counsel could possibly be due to the judgment of the Supreme Court in Minister of Home Affairs & Anor v. Karpal Singh (No. 2)[1988] 3 MLJ 85 that the words 'decision or direction' under s. 374 of CPCmust necessarily refer to the final decision or direction made under s. 365 of the CPC. Looking at the facts of the case, we were of the view that the interpretation of s. 374 of the CPCwas decided per incuriamby the Supreme Court.

We proceeded to consider the preliminary issue decided by the learned judge.

Preliminary Issue

The learned judge in ordering the production of the applicants at the hearing of their applications relied on art. 5(2) of the Federal Constitution, which reads:

(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, unl