The Book of Prof Shad.docx

119 article 1511b has now been amended 117 make

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119 Article 151(1)(b) has now been amended. 117
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make representations as provided in s. 5(1) of the Ordinance and Articles 5(3) and 151 of the Federal Constitution. The person who translated Forms I and II from Malay to Tamil was not proved to be proficient in Tamil. There was no proof that the applicant’s representation in Tamil to the Board was properly translated. The detention order specified the period of detention as two years with effect from 21 December 2004. But there was no record to show when the applicant was actually sent to the detention centre. Habeas corpus was issued. In Kumaran Suppiah v Dato Noh Haji Omar [2006] 6 MLJ 393 a preventive detention order made on 17 December 2004 was to take effect from 26 December i.e. a date subsequent to the date on which it was made. It was held that the fact that s. 4(1) of POPO is silent with regard to the time within which the detention order must take effect does not mean that the Minister has a complete discretion in determining the date. 120 An unexplained delay in the commencement of the order amounted to a non- compliance with a procedural requirement governing the making of the order. In Parasuraman Velu v Ketua Polis [2006] 5 MLJ 764 there was non compliance with procedural rules by the Advisory Board. There were doubts whether Form II was served on the applicant, whether he knew of its content including that part in which he is supposed to have waived his right to legal representation. The right to legal representation during the Board’s meeting was not afforded. The applicant’s mother was not allowed to appear as witness on his behalf. Habeas corpus was issued. Article 5(3) of the Constitution requires that “where a person is arrested he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice”. In many cases, the courts have held that the requirement to supply grounds is mandatory. In Yit Hon Kit [1988] 2 MLJ 638, there was a delay of 57 days before the detainee was informed of the grounds of arrest. The court held that “as soon as may be” means “as nearly as is reasonable in the circumstances of the case”. Habeas corpus was issued. In Mohd Amin Mohd Yusoh [1995] 1 CLJ 94 the applicant was first detained for two years under Section 8(1) of the ISA. On the expiry of the first order, he was served with a second detention order under Section 8(7). But no grounds were supplied. The order was quashed. In Abdul Ghani Haroon No. 3 [2001] 2CLJ 709, denial of right to see a lawyer resulted in judicial review. (b) Directory procedures : If the procedural requirement is merely directory, judicial review will be refused unless the detainee has suffered some prejudice: Puvaneswaran [1991] 3 MLJ 28. Courts have wide discretion over whether a procedure is directory or mandatory. For example, while the first limb of Article 5(3) (which requires the giving of the grounds of arrest) has been held to be mandatory, the second limb of the same Article (which deals with the right to consult and be defended by a lawyer) has been held to be merely directory! Habeas corpus has been refused consistently if the detainee was not
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