The Book of Prof Shad.docx

2001 2 clj 709 in which in a celebrated judgment

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[2001] 2 CLJ 709 in which, in a celebrated judgment, Justice Hishamudin held that nothing in the ISA explicitly excludes a detainee’s right in Article 5(3) to consult and be defended by a legal practitioner of his choice. Article 151 cannot be violated: Legislation under Articles 149 and 150 must not violate the safeguards for preventive detainees entrenched in Article 151. Though preventive detainees do not have the right to be tried in an open court, they are entitled to the following procedural rights: Informed as soon as may be of the grounds of detention Informed as soon as may be, of the allegations of fact on which the detention order is based. However facts need not be disclosed if in the opinion of the authority their disclosure would be against the national interest: Low Soon Mooi v Menteri [1989] 2 MLJ 350. Given the opportunity as soon as may be of making representations to an independent Advisory Board constituted under Clause (2) Not to be detained unless the Advisory Board has considered any representations made by the detainee and made recommendations thereon to the Yang di-Pertuan Agong within three months of receiving such representation or within such longer period as His Majesty may allow. In Re Tan Boon Liat [1977] 2 MLJ 108 the writ of habeas corpus was issued because the Board did not meet the time limit of three months as it stood at that time. 86 But see a contrary view in Ahmad Yani Ismail v IGP [2005] 4 MLJ 636 81
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Federal structure: It is a debatable issue whether a law under Article 149 can tamper with the federal structure of the country or trespass into matters assigned to the States. The language of Article 149(1) appears broad enough to authorise intrusions into state powers in order to combat subversion. JUDICIAL REVIEW The efficacy of judicial review is the litmus test for the existence of rule of law in the country. Judicial review of Article 149 legislation: The most famous legislation under Article 149 is the Internal Security Act 1960 (Act 82). It validity has been repeatedly challenged and the courts have been unanimous that the law is perfectly permissible under Article 149: PP v Lau Kee Hoo [1983] 1 MLJ 157; Lau Kee Hoo v PP [1984] MLJ 110; PP v Yee Kim Seng [1983] 1 MLJ 252. Other laws under Article 149 are the Dangerous Drugs (Special Preventive Measures) Act 1985 (Act 316) and the Proclamation PU(A) 148/69 dated 15 May 1969 that all areas of the Federation are security areas for the purposes of Part II of the Internal Security Act. There are no decided cases invalidating any parliamentary legislation enacted under Article 149. In Ketua Polis Negara v Gan Bee Huat [1988] 3 MLJ 86 provisions of the Dangerous Drugs (Forfeiture of Property) Act 1988 authorising seizure of property without compensation were held to be a violation of Article 13 but saved by Article 149. In PP v Yee Kim Seng [1983] 1 MLJ 252 section 57(1)(b) of the Internal Security Act prescribing the death penalty for unlawful possession of explosives was held to be within the powers of Article 149. In Teh Cheng Poh [1979] 1 MLJ 50 the Privy Council hinted that legislation under Article
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