The Book of Prof Shad.docx

149 must be enacted bona fide for the purpose of

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149 must be enacted bona fide for the purpose of stopping or preventing subversive acts of the kind referred to in Article 149(1). “The provision of the Act which confers the power must be designed to stop or prevent that subversive action and not to achieve some different end”. Whether this dicta implies that Article 149 legislation can be invalidated on the ground of mala fide is a matter of debate. It is submitted that the powers of Parliament under this Article are so broad and subjective that there is no realistic chance of judicial review on the ground of mala fide . Judicial review of executive discretion: Unlike the lack of judicial review of Article 149 legislation, there are quite a few instances of judicial review of executive actions taken under subversion laws. In this area the judicial record is mixed. There are many deeply satisfying decisions but there is no dearth of cases in which the courts permit unlimited and unreviewable discretion to the executive. In several instances the courts have adopted different standards for different sections of the ISA and whether the defendant was the police or the Minister of Home Affairs. Ministerial discretion under section 8 of the ISA: Barring a few cases on mala fide, courts are not willing to go behind an order of detention issued by a Minister under section 8(1) of the ISA. In PP v Musa [1970] 1 MLJ 104 it was held that it is not against the law for the Minister to order a person to be restricted and, subsequently, at the end of the restriction period, to be detained. Subsequent to the detention order, a restriction order can be imposed. Subsequent to the detention period the Minister 82
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could extend the operation of the previous detention for up to two years at a time and need not make a fresh detention order. Courts have no jurisdiction to review the Minister’s subjective exercise of discretion to detain under section 8(1) of the ISA. “One only has to read section 8C of the ISA to immediately appreciate that the ouster of judicial review of any act done or decision made by the Yang di-Pertuan Agong or the Minister … is total and all-encompassing … The jurisdiction to review is only with regard to my question on compliance with the procedural requirement in the ISA : Noor Ashid bin Sakib v Ketua Polis Negara [2001] 4 CLJ 737. The subjectivity and non-reviewability of the Minister’s satisfaction has been affirmed in a long line of cases, e.g, Ahmad Yani Ismail v IGP [2005] 4 MLJ 636; Karam Singh v Menteri [1969] 2 MLJ 129; Theresa Lim Chin Chin v IGP [1988] 1 MLJ 293. The non-justiciability of a Minister’s order under section 8 of the ISA is, however, subject to occasional exceptions on the ground of mala fide. Mala fide does not necessarily mean malicious intention, hatred, jealousy or corrupt motive. It could mean “that a power is exercised for a collateral or ulterior purpose other than for which it is professed to have been exercised”: per Peh Swee Chin J in Karpal Singh v Menter i [1988] 1 MLJ 468 at 473. In Nasharuddin Nasir v Kerajaan [2004] 1 CLJ 81, High Court Judge
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