Tuesday, March 10, 2009

TheStar : Federal Court throws out Uthayakumar’s appeal on technicality

Published: Tuesday March 10, 2009 MYT 2:30:00 PM

PUTRAJAYA: Hindraf leader P. Uthayakumar’s appeal on his second habeas corpus application to secure his release from detention under the Internal Security Act was thrown out by the Federal Court here on Tuesday on technical grounds.

Justices Datuk Nik Hashim Nik Ab. Rahman, Datuk S.Augustine Paul and
Datuk Hashim Yusoff unanimously dismissed his appeal after he failed to fulfil the requirement under Section 95 of the Rules of the Federal Court to file a petition of appeal within the stipulated 10 days after receiving the record of appeal from the court. They also rejected his application for extension of time to file the petition of appeal.
Uthayakumar, 47, a diabetic, appealed against the High Court’s decision disallowing his second habeas corpus bid for freedom on grounds of medical negligence.
On Sept 17 last year, High Court judge Suraya Othman held that Uthayakumar’s claim that he was denied proper medication, treatment and proper diet by the Taiping Hospital and officials of the Kamunting detention camp was not true and without merit.
Outside the court, one of Uthayakumar’s lawyers, N.Surendran, said he would consider filing a fresh a habeas corpus application following Tuesday’s decision.
Uthayakumar and four other Hindraf leaders lawyer R.Kengadharan, 42, M. Manoharan, 48, V. Ganabatirau, 36, and Hindraf coordinator K. Vasantha Kumar, 36 filed their first application on Dec 26 last year after they were arrested. Their application was subsequently dismissed by the High Court and the Federal Court.

In Tuesday’s proceedings, senior federal counsel Datuk Abdul Wahab Mohamad notified the court of the absence of the petition of appeal.
He said that Section 95 requiring the petition of appeal to be filed should be strictly followed but Uthayakumar’s counsel S.Y.Chew argued that habeas corpus cases, which go directly to the Federal Court bypassing the Court of Appeal, were exempted from that procedure.
There was a lacuna in that section of the Rules of the Federal Court, she said, adding that that section only applied to criminal cases coming from the Court of Appeal to the Federal Court.

At this juncture, Justice Paul questioned Chew on the failure to file the petition, saying: “You people do everything and finally throw everything to the Federal Court”.
He said he had never seen a single habeas corpus case without a petition being filed. The quorum then ruled that Section 95 applies to Uthayakumar’s case and ordered Chew to submit on the issue of extension of time to file the document.
Chew contended that the court should grant extension of time for her to file the document because the matter was an important one, affecting the liberty of a person under the Federal Constitution.

She asked the court to exercise compassion and leniency to grant her time to file, saying that Uthayakumar was suffering from lack of proper treatment and lack of diabetic diet in detention. - Bernama