The Book of Prof Shad.docx

8 is article 5 automatically suspended under an

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8 Is Article 5 automatically suspended under an Article 149 law? In Abdul Ghani Haroon v Ketua Polis Negara No 3 (2001), it was held that the rights in Art 5 are NOT automatically suspended unless the law under 149 explicitly says so. As the ISA did not explicitly suspend Art 5(3) a detainee under ISA has a right to consult with a lawyer. 9 Is the ISA a valid law under Art 5? Does the term ‘law’ in Art 5(1) mean lex or jus and recht? There is some case law to indicate that ‘law’ includes natural justice (Cheow Siong Chin , 1986). In Muhammad Hilman Idham (2011) the court held that restrictions on fundamental rights must be reasonable. However there is a long line of precedents that the reasonableness of the law is not for the courts to determine: Andrew s/o Thambosamy . In AG v Chiow Thiam Guan the validity of the death penalty was upheld. In PP v Yee Kim Seng the validity of the ISA was upheld. In the light of Art 149 it will be difficult to succeed in the argument that the ISA is an unreasonable law and therefore unconstitutional. Art 149 overrides Art 5. 10 Is the Minister’s order in bad faith? The Minister’s preventive detention order under section 8 of the ISA on 15 May 2012 appears to be mala fide. This is clearly a case under the Official Secrets Act. The police said so. But the Minister is using the arbitrary provisions of the ISA to circumvent the requirements of the OSA. One is reminded of cases like Jamaluddin Othman (1989) and Tan Sri Raja Khalid Raja Harun (1988) where misuse of the ISA for wrong purposes was censured by the courts. In PP v Khairuddin Abu Hassan ( 2017) it was held that sabotaging banking services was not an offence under SOSMA which is a law against terrorism and so the charge under SOSMA was dismissed. The Government may on the other hand argue that the burden of proving mala fide is on the detainee. In any case release of official secrets may well amount to subversion. In Theresa Lim Chin Chin v IGP (1988) it was held that subversion is not confined to the communist threat. So on this point the applicant is unlikely to win. 11 There was violation of the Art 151 right to make representation to an Advisory Board Under Article 151(1)(b) every detainee has a right to make representation to an Advisory Board. The Board must consider the representation and remit its advice to the Yang di Pertuan Agong within 90 days or such time as the YDPA permits. This provision is mandatory and habeas corpus must issue if a detainee is denied this right: Tan Boon Liat v Menteri (1977). It is submitted that 90 days after the 7
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detainee made her representation, her detention ceased to be valid. Note the decision in Lim Kui Hin v PP (2013) where the appellant was committed by court to a drug rehabilitation centre without giving him a chance to challenge the evidence against him and to make representation. The lower court’s order was quashed.
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