The Book of Prof Shad.docx

28 the overall effect of this unfortunate decision is

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although linked were not inextricably connected and operate independently from each other. 28 The overall effect of this unfortunate decision is that even if the prior arrest or detention by the police suffered from a procedural defect, that does not vitiate the subsequent valid order of the Minister. With all due respect this view should be confined to those situations where the subsequent authority’s order of detention is not based on the findings or recommendations of the first authority. A detainee is entitled to his safeguards at all stages of his detention and not only at the final stage. To hold otherwise is to enable the final authority to validate retrospectively all prior illegalities. In Muhammad Jailani Kasim v Timbalan Menteri [2006] 6 MLJ 403, the Federal Court confirmed the view in Mohd Faizal’s case that if the current detention is lawful, defects in the prior detention are irrelevant. However, paradoxically, the court held that the ultimate order of preventive detention under section 6(1) of the DDA 1985 by the Minister could not stand because of doubts about the qualification of the inquiry officer and because there was no evidence to show that the inquiry officer had carried out the investigation as required of him by section 5. The court correctly held that the inquiry under s. 5 was a pre-condition of the exercise of power under s. 6(1). Non-compliance with the requirements of section 5 by the inquiry officer rendered the subsequent detention order by the Minister invalid. To whom should the writ be addressed to? Who should be the respondent in the application? In Mohamad Ezam Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449 the Federal Court issued the writ despite the detainees not being in the custody of the police but in the custody of the Minister who had by then issued a preventive detention order under section 8 of the ISA. But Mohamad Ezam was expressly dissented from in Sejahratul Dursina @ Chomel Abdullah v Kerajaan [2006] 1 MLJ 405. It was held that the writ had to be addressed to the person having actual physical custody of the detainee. See also Kerajaan v Nasharuddim Nasir [2004] 1 CLJ 81. The only order that can be applied for under Article 5(2) of the Constitution and section 365 CPC is to seek release. Prayers for an access to the applicant’s solicitors or for an order that the appellant after being released should not be arrested or detained are outside the scope of habeas corpus. 29 The remedy may lie elsewhere: Sejahratul Dursina. Perhaps certiorari is the more appropriate remedy: Cheow Siong Chin. 28 See also Timbalan Menteri v Arasa Kumaran [2006] 6 MLJ 689; Muhammad Jailani v Timbalan Menteri [2006] 6 MLJ 403. 33
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Habeas Corpus cannot be used to test the constitutionality of an Act of Parliament. In Koh Wah Kuan v Pengarah Penjara [2004] 5 MLJ the applicant had argued that section 97 of the Child Act was unconstitutional because it was an intrusion into a judicial power by Parliament. The court held that the issue must be raised under Article 4(3).
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