The Book of Prof Shad.docx

There is no stipulation that the report must be the

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jurisdiction under section 6(1) is only a consideration of the report of investigation. There is no stipulation that the report must be the result of a valid detention. Even if the report was the result of an illegal arrest the weight to be attached to it was a matter exclusively within the purview of the Minister. The court should not concern itself with the use of the report of investigation by the Minister. The report of investigation has no direct link with the detention. The report may be considered by the Minister even if it contains a statement from a person whose detention under section 3(1) is irregular. Consideration of a statement made by an illegally detained person should not be prohibited. This is similar to the use of illegally obtained evidence in a court of law. The court was not to concern itself with the vagueness, sufficiency or relevance of the grounds of detention. In sum, the court held that even if the police arrest under section 3(2) was illegal, the Minister can go ahead with the detention order under section 6(1) and the courts will not interfere. Likewise in Selva Kumar Tamil Selvom v TMDN [2005] 7 MLJ 548 the court held that even if the detention by the police pending enquiries under section 3 of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (POPO) is smudged with procedural irregularities, that does not vitiate the Minister’s order under section 4. The latter order superseded the former. Actions under sections 3 and 4 although linked were not inextricably connected and operate independently from each other. 125 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. 125 See also Timbalan Menteri v Arasa Kumaran [2006] 6 MLJ 689; Muhammad Jailani v Timbalan Menteri [2006] 6 MLJ 403. 122
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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.
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