The Book of Prof Shad.docx

That a mere omission of words or a mere procedural

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that a mere omission of words or a mere procedural irregularity does not automatically render the order effective. The court relied on the much condemned decision in Karam Singh v Minister [1969] 2 MLJ 129 to hold that “there was a defect of form and not of substance” that did not show that the executive had not adequately applied its mind to the desirability of detaining the appellant. In Sinnasamy Subbiah v Timbalan Menteri [2004] 1 MLJ 379, the notice under s. 5(2) of POPO was defective as it cited an unknown provision of the law. The court held that the defective notice did not prejudice the applicant as he had been informed of his right to make representations. In Tay Lay Beng v Menteri [2005] 3 MLJ 253 a mere typing error as to the date is not material if there is enough evidence to prove the date of arrest. 121 This lax attitude towards a post-arrest enquiry was rejected in Haji Omar Din Mawadin v Minister [1990] 3 MLJ 435. An arrest under the Emergency (Public Order & Prevention of Crime) Ordinance 1969 can be invalidated because of failure to hold enquiry. 119
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Procedural requirements under extradition laws have generally been held to be directory. In Chua Han Mow [1979] 2 MLJ 70 proceedings for extradition were involved. The warrant of commitment for extradition were involved. The warrant of commitment was not in conformity with the prescribed statutory form. The High Court refused habeas corpus because the detention warrant was a mere formality and formal or technical defects are curable. Grounds on which habeas corpus may be refused Despite the veneration with which habeas corpus is regarded in many Commonwealth countries, Malaysian courts have interpreted their powers to issue the writ rather narrowly. 1 Physical presence of accused : In many countries, courts order the detainee to be brought before the court during the hearing for the writ. In Malaysia, it has been held that it is not necessary for an applicant to be produced before the court at the very outset. The detainee must be produced only if his detention is adjudged to be contrary to the law. The Federal Court in Ketua Polis Negara v Abdul Ghani Haroon [2001] 4 MLJ 11 interpreted Article 5(2) in a literal, pedantic manner to hold that the detaining authority has no duty to produce the detainee in court unless the court is satisfied that the detention is tainted with illegality. It is submitted that this decision is gravely wrong. In cases of torture or death in custody, how else can the facts come to light other than by the physical presence of the detainee in court? The decision does grave injustice to the proud history of habeas corpus in all common law jurisdictions. 122 2 Assault of detainee : In Teoh Yook Huwah [1993] 1 MLJ 12 the detainee had alleged that he had been assaulted. Habeas corpus was refused.
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