The Book of Prof Shad.docx

Mohamed ezam 87 on procedural violations see also lee

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Mohamed Ezam 87 On procedural violations see also Lee Mau Seng v Minister [1971] 2 MLJ 137; Subramaniam v Menteri [1977] 1 MLJ 82; Rajoo s/o Ramasany v IGP [1990] 2 MLJ 87; Karpal Singh v Menteri [2002] 1 MLJ 138 84
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Mohd Noor v Ketua Polis Negara [2002] 4 CLJ 309 there was judicial intervention because of police failure to communicate the grounds of arrest, failure to explain the reasons why the police believed that the exercise of powers under section 73 of the ISA was necessary; and denial of legal representation contrary to Article 5 of the Constitution. However, even in matters of procedure, courts often show great tolerance of actions by the state. In Tee Yam @ Kee Tee Yam v Timbalan Menteri [2005] 236 MLJU 1, the court ruled that the grounds of detention can be conveyed by a document signed by the secretary to the Minister instead of the Minister himself. The signature of the Minister’s secretary does not indicate non-application of the subjective mind. The non-signature of the Minister is not fatal, so long as the allegations of fact have been conveyed. In Nik Adli Nik Abdul Aziz v Ketua Polis Negara [2005] 3 MLJ 425, a detention order against the applicant had been extended. Counsel for the applicant argued that the allegations of fact on which the extension order was based was neither served nor created, thus depriving the applicants of their rights under section 11 of the ISA. It was held that the allegations of fact on which the original order was based had been served on the applicants; the extension order was made on the same grounds as those on which the order was originally made and consequently, the furnishing of the allegations of fact (again) did not arise unless the extension has been extended on wholly different grounds or partly on different grounds. With all due respect, how is the detainee to know this fact, unless the allegations of fact are actually supplied to him again? In the infamous Karam Singh v Menteri [1969] 2 MLJ 129, the court have great latitude to the executive in matters of procedure. “Detention … is not illegal simply because the allegations of fact supplied … in pursuance to Article 151(1)(a) … are vague, insufficient or irrelevant.” “If the detainee honestly thinks that the allegations of fact are vague, insufficient or irrelevant, he should ask for particulars”. In other words, the courts and the Constitution cannot help. The detainee must try his luck with those who have detained him! Karam Singh has been followed in some cases 88 ; criticized in others 89 . Its ghost continues to haunt constitutional jurisprudence in Malaysia. Right to counsel : In Mohamamad Ezam Mohd Noor v Ketua Polis Negara [2002] 4 MLJ 449, Siti Norma Yaakob FCJ, in an admirable judgment held that Article 149 authorises violations of Articles 5, 9, 10 and 13. But as the ISA makes no explicit provision for denial of access to legal representation, the right in Article 5(3) is still applicable. This is in line with the earlier Lee Mau Seng v Minister [1971] 2 MLJ 137
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