The Book of Prof Shad.docx

The court could not insist on evidence being supplied

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the exercise of executive discretion was subjective. The court could not insist on evidence being supplied to the court. Nevertheless, it held that the court could take note of what was stated in the affidavit. As the evidence disclosed in the affidavit did not reveal any ground which could be relevant to security, the writ should issue. Similarly, in Minister v Jamaluddin bin Othman [1989] 1 MLJ 418, the Supreme Court upheld the quashing of a preventive detention order under the ISA because the alleged actions of the detainee (propagating Christianity amongst Muslims) posed no threat to national security. Further, the grounds for detention were insufficient to fall within the scope of the ISA. However, in Lim Say Hoe 111 Subsequently overturned by the Federal Court 112 But refer to Article 43A(2). 112
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[1995] 2 AMR 1211, the court held that a restricted residence order for rigging football matches fell within the ‘public security and order’ object of the Restricted Residence Enactment! In extradition cases, habeas corpus can issue if evidence against the accused is not sufficient: Abdul Hamid Jamal v PP [1934] MLJ 46. In this case, after the arrestee was discharged, he was arrested again on the same charge. The court again issued the writ because it was wrong to re-open the same issue. In another extradition case, Tan Hock Chan [1994] 1 MLJ 60, habeas corpus was issued on a number of substantive grounds. Firstly, because the conditions prescribed by section 3(1) of the Extradition Ordinance 1958 had not been met. Secondly, the second detention being a continuation of the first illegal detention was also invalid. Thirdly, Hong Kong (being a colony) is not a country within the meaning of the Extradition Act and the request for extradition should have been made by the U.K. In Minister v Karpal Singh [1988] 1 MLJ 468, out of several facts on which the detention order was based, one fact was entirely baseless. Habeas corpus was issued by the High Court. But the Supreme Court in reversing the High Court drew a distinction between ‘facts’ and ‘grounds’. The allegations of fact upon which the subjective satisfaction of the Minister was based are not justiciable. Whether the allegations of fact were vague, insufficient or irrelevant is not for the courts to decide. However, the court emphasized that though facts cannot be examined, the grounds of detention were open to challenge if they were not within the scope of the enabling law. In Tan Boon Aun [1991] 1 MLJ 55, a valid detention order ended at 00 hours midnight on 12 th April. On the same day at 9.30 a.m., a further order was served. But because of the break in the chain of authorization for nine and a half hours, habeas corpus was issued. In Yap Hai Sing [1995] 3 AMR 212, the writ was allowed because the officer concerned failed to apply his mind to the report of the detention received by him before forwarding the same to the Minister. In Mohd Amin Yusoh [1995] 1 CLJ 94, the detention order did not indicate the month from which the detention was to commence. The court held that the order had been made in a casual and cavalier manner and the Minister could not be said to have been satisfied. In Kumareshan v Dato Chor Chee Heung
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