The Book of Prof Shad.docx

Habeas corpus has been refused consistently if the

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been held to be merely directory! Habeas corpus has been refused consistently if the detainee was not allowed to see his lawyer: Ooi Ah Phua [1975] 2 MLJ 198: Theresa Lim Chin Chin [1958] 1 MLJ 293; and Lee Mau Seng [1971] 2 MLJ 137. 120 A similar ruling was made in Thamilvanen Kandasamy v Timbalan Menteri [2007] 5 MLJ 582 due to an unexplained delay of three days. 118
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Under the Restricted Residence Enactment, Section 2(1), the Minister may make or cause to be made such inquiry as he may deem necessary. In Timbalan MHDN v Cheow Siong Chin [1987] 2 CLJ 24, it was held that this provision for enquiry is not mandatory 121 . In Sukumaran [1995] 2 MLJ 247, the clause in Article 5(2) requiring the detainee to be produced in court prior to release was held to be permissive and not imperative. In Timbalan Menteri v Ong Beng Chuan [2006] 6 MLJ 493 the detainee alleged that he was informed of his right to make representation by an unauthorized officer. It was held that the law does not require that the communication must be made by any specified officer. Certain other functions under s. 53 of the Dangerous Drugs Special Preventive Measures (Advisory Board Procedure) Rules 1987 were performed by someone other than the authorised officer-in-charge. The court regarded this as a breach of procedure but held that the breach was not one that would affect the subsequent hearing before the Advisory Board or the exercise of discretion by the Yang di-Pertuan Agong. With all due respect this is a most unsatisfactory decision. First, the error appears to be substantive and, therefore, fatal. Second, there is something deeply disturbing about the judicial view that errors by the authority at first instance do not affect the decision by the ultimate authority. There is no basis for such a speculative view. Third, confirmation of a decision by the ultimate authority cannot wipe away the illegality at first instance. Fourth, a citizen is entitled to due process at all stages of the proceedings and before all authorities concerned. It is not fair for the courts to turn a blind eye at earlier violations on the ground that the aggrieved citizen will ultimately receive procedural due process. Not all victims of procedural injustice or maladministration have the means or the patience to pursue their remedies upwards. In Selva Kumar Tamil Selvom v Timbalan Menteri [2005] 7 MLJ 548 a detention order under POPO was challenged on the ground (i) that the required form was not addressed to any specific authority and (ii) that the delay of two and a half months after the last criminal activity made the detention order stale or remote. It was held that any defects in the form are a mere technicality. There was no unreasonable delay. In Zali Shariff v Timbalan Menteri [2004] 1 MLJ 480 there was an order of preventive detention under s. 6(1) of DDA 1985. The Deputy Minister’s order indicated that he was satisfied that the detainee had connections with drug related activities. But the order omitted to mention that he had satisfied himself that it was necessary in the interest of public order that such person be detained. It was held
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