Habibah Nik & Co

On the court record

The firm's record illustrates the judicial scrutiny of executive immigration detention through habeas corpus at the Federal Court, including the position of a UNHCR cardholder, and the requirements for sustaining a private caveat under section 327 of the National Land Code.

Habibah Nik & Co appears in the corpus as counsel in liberty and land litigation, appearing before the Federal Court (Mahkamah Persekutuan) and the High Court (Mahkamah Tinggi).

A significant matter concerns the writ of habeas corpus. Acting for the applicant, and later the appellant, the firm appeared in connected proceedings where a person holding a card issued by the United Nations High Commissioner for Refugees was detained after conviction under section 6(1)(c) of the Immigration Act 1959, and was subject to an Order of Removal under section 33(1) and an Order of Detention pending removal under section 34(1). The court examined whether the detention was unlawful so as to warrant the grant of the writ, the interplay between the separation of powers and the judiciary's role as a check on executive power, the balance between the liberty of the individual and the state's power of detention, the duty of inquiry, and the meaning of the phrase shall be liable to be removed, and whether the Director-General had properly exercised his discretion. The matter reached the Federal Court, engaging the constitutionally permissible limits of executive detention.

The firm also appeared in land litigation. Acting for the respondent in a matter argued in Malay, it was engaged in an application under section 327(1) of the National Land Code to remove a private caveat, where the court reaffirmed that a caveator must show the existence of an interest in the land that raises a serious question to be tried and that the balance of convenience favours maintaining the status quo until trial.

The firm's record is a liberty-and-land litigation practice, engaging both the judicial scrutiny of immigration detention through habeas corpus at the apex level and the everyday law of private caveats. The habeas corpus work in particular places the firm at the sensitive intersection of the executive's power to detain and remove non-citizens and the judiciary's constitutional role as a check on that power, a field in which the status of a person recognised by the United Nations High Commissioner for Refugees, and the proper exercise of the Director-General's discretion, remain contested and consequential questions for the liberty of the individual.