The Book of Prof Shad.docx

2003 4 mlj 385 there was a preventive detention order

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[2003] 4 MLJ 385 there was a preventive detention order under s. 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA). Under the provision two prerequisites must be met. The Minister must state that he is satisfied that (i) the detainee was associated with drug trafficking and (ii) it was necessary in the interest of public order that the detainee be detained. The Minister’s order met only the first prerequisite. Habeas corpus was issued because the failure was a “defect in substance and not form”. However in Che Su binti Shafie [1974] 2 MLJ 194, a preventive detention case under POPO 1969, the detenu was furnished with the grounds, not by the Minister, but by a departmental official. Habeas corpus was refused because the official was acting on behalf of the Minister. In Re the Detention of Leonard Teoh Hooi Leong [1998] 1 MLJ 757 one Nor’aishah bte Bokahari, a Muslim girl, had converted to Christianity and had gone missing from her house. She appointed a lawyer to advise her. Her family lodged a police report and the lawyer was investigated. The lawyer refused to disclose her whereabouts on the ground of professional privilege. He was arrested and remanded under s. 117 of the CPC as a prime suspect in the abduction. His application for habeas corpus failed because the grounds of arrest and remand were held to be within the law. 113
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2. Irrationality: This is also referred to as abuse of power, illegality of purpose, extended ultra vires, bad faith, unreasonableness, arbitrary exercise of power or lack of evidentiary basis. An example of abuse of power is when an immigration law permitting detention for purpose of removal is used to detain an illegal immigrant for eight years: Lui Ah Yong [1977] 2 MLJ 226. 113 In one case a banker whose bank had incurred heavy losses due to alleged mismanagement was detained under the ISA. The court held that the grounds for detention are not relevant to the object of the ISA: Minister v Tan Sri Raja Khalid [1988] 1 MLJ 182. In Minister v Jamaluddin Othman [1989] 1 MLJ 418 a Malay who had converted to Christianity was detained under the ISA. Habeas corpus was issued because a law under Article 149 (the ISA) cannot be employed to restrain someone from exercising his freedom of religion. In Daud Salleh [1981] 1 MLJ 191 there was no material evidence to make a rehabilitation order under the Misuse of Drugs Act: Judicial review on the ground of irrationality is, however, ineffective for most cases under the Internal Security Act and the Restricted Residence Enactment. The courts are generally not prepared to question the bona fides of a detention/restriction order. The sufficiency of the grounds is to be decided by the executive, not the judiciary: Lim Say Hoe [1995] 2 AMR 1200. In preventive detention cases, courts are not willing to question the discretion of the detaining authority. Courts have consistently laid down that the test for determining whether the preventive detention is necessary or not, is subjective, not objective 114 . In a number of cases the Malaysian and Singaporean courts have held that in the context of
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