The Book of Prof Shad.docx

The writ will issue if the law under which the arrest

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The writ will issue if the law under which the arrest was made does not apply in the territory where the detainee was found: Re Datuk James Wong Kim Min [1976] 2 MLJ 245. In this case detention 107 There are differences of opinion on this issue among judges. 108 Re Onkar Shrian [1970] 1 MLJ 28 109 Lord Diplock in Council of Civil Service Union v Minister for the Civil Service [1985] AC 374 (The GCHQ case) 110 In Teh Cheng Poh v PP [1979] 1 MLJ 50, the Essential (Security Cases) Regulations were declared unconstitutional and a declaration was issued. 111
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was effected under a Sarawak preventive detention law but the detainee was confined in West Malaysia. The courts may grant the writ if the detainee is not subject to the law; e.g. where a juvenile is tried under a law which does not apply to him: Superintendent v Wong Cheng Ho [1980] 1 MLJ 154 111 ; or where the detention exceeds the dates on the detention order: Yit Hon Kit [1988] 2 MLJ 638; or where a person detained as an illegal immigrant had in fact entered the country lawfully: Lau Seng Poh [1985] 2 MLJ 350; or where the law required the satisfaction of the Minister but his Deputy had signed the detention order: Sukumaran [1995] 2 MLJ 247. 112 In the banishment case of Minister v Chu Choon Yong [1977] 2 MLJ 20, a person was kept in detention under the Banishment Act for more than six years because no country was willing to take him. The High Court issued the writ because of unlawful delay in banishing him. But the Federal Court reversed the High Court on the ground that the order of detention was valid when made and continued to be operative. The Federal Court did not pay enough attention to the proposition that an order which is valid when made can indeed become invalid later on. The court failed to consider whether a banishment law be used to detain a man for life? In the immigration case of Lui Ah Yong v Superintendent of Prisons [1977] 2 MLJ 226, an illegal immigrant was detained for eight years pending his removal from Malaysia. No country was willing to take him. The High Court held that immigration law could not be used to detain a man indefinitely. But in Andrew [1976] 2 MLJ 156 and Re Meenal [1980] 2 MLJ 299, habeas corpus was refused on similar facts. In the Singapore case of Lau Seng Poh v Controller of Immigration [1985] 2 MLJ 350, the court issued the writ because it was satisfied that the detainee had entered Singapore lawfully. In Superintendent v Wong Cheng Ho [1980] 1 MLJ 154, the High Court issued the writ because a juvenile could be detained only under the Juvenile Courts Act and not under the Emergency Public Order & Prevention of Crime Ordinance (POPO). But the Federal Court overruled this view and held that the emergency Ordinance can apply to the detention of a juvenile. In several cases, courts have stated that they have the power to examine whether the grounds disclosed by the Minister are relevant to the object which the Act prescribes. In Tan Sri Raja Khalid [1988] 1 MLJ 183, involving the detention under the ISA of a bank executive, the Supreme Court held that the test for the exercise of executive discretion was subjective. The court could not insist on evidence being supplied
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