JUDGMENT

Gopal Sri Ram JCA:

The Background

The appellant, Sukma Darmawan Sasmitaat Madja, was produced before the Sessions Court at Kuala Lumpur on 19 September 1998. He was charged with an offence of gross indecency under s. 377D of the Penal Code. He pleaded guilty and admitted the facts tendered by the prosecution in support of the charge. He was found guilty, convicted and sentenced to a term of imprisonment of six months.

On 27 October 1998, he moved the High Court at Kuala Lumpur for a direction in the nature of a habeas corpus ad subjiciendum under s. 365 of the Criminal Procedure Code. The substance of the appellant's case is that the Sessions Court had no jurisdiction over him. His plea of guilt is therefore quite useless. Since there was want of jurisdiction, his detention in prison is pursuant to an order that is null and void and of no effect. He is therefore entitled to immediate release.

The application was heard before Abdul Wahab Patail J, who dismissed it on 7 November 1998. It is against that decision that the present appeal has been brought.

The Issues

There are two issues that lie at the heart of the appeal. Both are of high constitutional importance. So far as we are presently advised, this is the first occasion upon which our courts are being called upon to make a pronouncement upon them. The first issue is whether habeas corpus would lie in a case as the present where an applicant is seeking release from custody under execution of a sentence imposed by a court. Second, if the remedy is available, then, whether the instant appellant should be given it. Although we have framed them separately, both issues are in truth, as may be seen later in this judgment, closely intertwined by reason of the challenge taken to the jurisdiction of the Sessions Court to deal with the offence of which the appellant was convicted. However, both issues concern the operation of certain provisions of the Federal Constitution, and for that reason, we find it useful to remind ourselves of the principles that guide a court when interpreting a written Constitution such as ours.

Constitutional Interpretation

There are several authorities that deal with the approach a court should adopt when interpreting the provisions of a written constitution and the following principles, relevant to the present appeal, may be distilled from them.

1. Generally speaking, the rules of construction that guide a court in the interpretation of ordinary statutes apply with equal force when interpreting the Federal Constitution. But there are important differences. For, the Federal Constitution, unlike any ordinary statute, does not merely declare the law. It creates and regulates the law making power of the Federation. It also creates and defines the various branches of government. It confers upon individuals certain fundamental and inalienable human rights, such as equality before the law. Its language must accordingly receive a broad and liberal construction in order to advance the intention of its framers. Or, as Lord Diplock put it in Attorney-General of The Gambia v. Momodou Jobe [1984] AC 689 at 700:

A constitution, and in particular that part of it which protects and entrenches fundamental rights and freedoms to which all persons in the state are to be entitled, is to be given a generous and purposive construction.

2. A court while rendering a broad and liberal construction to the language employed by the Federal Constitution, is not entitled "to stretch or pervert the language of the enactment in the interests of any legal or constitutional theory, or even for the purpose of supplying omissions or of correcting supposed errors." (per Gwyer, CJ, in Re Central Provinces & Berar Sales of Motor Spirit & Lubricants Taxation Act AIR [1939] FC 1.) This general rule is, however, subject to an important qualification. Where the language of the Constitution is open to two constructions, a court should adopt the construction "which will ensure the sm