The absence of adequate affidavit evidence and departure from fair procedures renders detention unlawful, prioritizing individual liberty and due process.

Gopal Sri Ram FCJ:

[1] This is yet another case in which we issued habeas corpus and set the detainee at liberty forthwith solely because of the absence of cogent affidavit evidence on the part of the respondents to this appeal. As will become apparent later in this judgment, this is the result of indifference on the part of the Federal Counsel in the settling of affidavits.

[2] The appellant was detained pursuant to a detention order issued by the first respondent under s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ("the Ordinance"). There is some dispute about the date of the order but nothing turns upon it for the purposes of the present appeal. We therefore accept that the order was dated 5 March 2009. The appellant made representations to the Advisory Board. At the hearing before the board on 6 May 2009 (there having been earlier hearings that had been adjourned at the appellant's request) one Detective Sergeant Antonidas Savrimuthu had been assigned to act as interpreter as the appellant wished to speak in Tamil. It is the appellant's evidence that he had requested for an adjournment through the interpreter in order to engage counsel but that the request was never put across to the board by the latter. It is also the appellant's evidence that he had been asked to leave the room so that he was unaware of what transpired thereafter. The appellant later learned that the board had made its recommendations despite his request for an adjournment. Although the interpreter's affidavit was filed on the respondents' behalf, nowhere in it are the specific allegations made by the appellant traversed or dealt with. All that was relied upon by the respondents in this behalf is the affidavit of the secretary of the board in which he states, based on the notes of proceedings, that if a request for an adjournment had been requested this would have been reflected in the notes. That, of course, is a non sequitur as the secretary does not speak or understand Tamil and is in no position to say what transpired between the interpreter and the appellant. Now, it would not have taken much for learned federal counsel in charge of the matter to have filed a proper affidavit or to have delivered a further affidavit dealing with each of the appellant's allegations.

[3] In the circumstances adumbrated, what approach is the court to adopt? The answer to this question is well settled by a legion of authorities we find unnecessary to cite. It is this. Where the deponent to an affidavit makes a positive assertion, which is not inherently incredible or inherently improbable, and his opponent in his affidavit does not credibly deny that allegation, a court should accept the former assertion as standing unrebutted. Now apply that test here.

[4] Accepting the appellant's unchallenged evidence that his request for an adjournment had not been put across by the interpreter to the board, this constitutes a serious departure from basic concepts of fair procedure in consequence of which the appellant suffered prejudice. And it goes to the legality of his detention. Accordingly, habeas corpus must issue and the appellant is entitled to be released forthwith.

[5] There is one further point of importance that must be made. It may be true that the appellant did not raise the points he did in this appeal when presenting his case to the High Court. It may also be true that his petition of appeal does not set out in clear terms the ground of challenge raised before us. In our considered judgment all this matters not a jot as the case concerns the liberty of an individual which must override any points of mere procedure. At the end of the day, the o