The Book of Prof Shad.docx

Suriyadi halim omar ruled that there was no evidence

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Suriyadi Halim Omar ruled that there was no evidence to show that the Kumpulan Militan/ Mujahidin Malaysia suspect Nasharuddin Nasir was involved in any terrorist activities. In Minister v Jamaluddin Othman [1989] 1 MLJ 368 a preventive detention was held to be unconstitutional because it violated the constitutional right to freedom of religion which freedom is not subject to suspension under Article 149 or a legislation derived from Article 149. In Tan Sri Raja Khalid Raja Harun [1988] 1 MLJ 182 a preventive detention order against a banker was held to be mala fide because there was a misuse of preventive detention power for a purpose not contemplated by the law. The court took note that there was no evidence that the detainee had acted in any manner prejudicial to national security. In Menteri v Mohd Zambri Mohd Arifin [1990] 1 MLJ 102, the Raja Khalid reasoning that laws should be used for the purpose for which they were enacted was taken one step farther. The detention of a drug dealer under the Emergency (Public Order and Prevention Crime) Ordinance 1969 was held to be illegal because the 1969 Ordinance was a law to secure public order. There was in existence a specific law with specific safeguards to deal with drug cases namely the Dangerous Drugs (Special Preventive Measures) Act 1985. Police discretion under Section 73 of the ISA: Under section 73 of the ISA, a police officer is allowed to arrest and detain a person without a warrant, pending enquiries, for a period of up to 60 days. The power can be exercised if the officer has reasons to believe that there are grounds which would justify a detention under section 8(1). In Karpal Singh v Menteri [1988] 1 CLJ 197 the court recognized the link between a police investigation under section 73(1) and the Ministerial order to detain under section 8(1) but fell short of holding that a section 8(1) order must be preceded by a section 73(1) investigation. This means that the Minister can go straight to the detention order under section 8(1) without the investigation under section 73(1). However, in a number of cases, courts have distinguished between a detention order under section 73 and a detention order under section 8. Police action to detain a person under section 8 is not immune from judicial review. In Nasharuddin Nasir v Kerajaan [2002] 6 MLJ 65, High Court judge Suriyadi Halim Omar ruled that there was no evidence that the detainee was involved in any terrorist activities of the Kumpulan Militan/Mujahiddin Malaysia (KMM) . Suriyadi. J accepted that 83
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the onus to prove mala fide rested with the detainee but he was of the opinion that the act of permitting a detenu to meet with his family but not his lawyer was arbitrary and showed mala fide. The learned judge was promptly overruled by the Federal Court. “Where matters of national security and public order are involved, the court should not intervene by way of judicial review as these are matters especially within the preserve of the executive”: [2004] 1 CLJ 81. However, in Mohamad Ezam Mohd Noor v Ketua Polis Negara
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