The Book of Prof Shad.docx

It is submitted that even if section 341 of the

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not necessary! It is submitted that even if section 34(1) of the Ordinance is silent on service of the order, Article 5(3) of the Constitution applies so as to require service of the order. Habeas corpus issues only within the limits of the Federation. A court will not entertain an application for habeas corpus if the detainee is outside the Federation. The writ must be directed against the current order of detention. The writ will not issue if the impugned order has already come to an end and been replaced by a subsequent valid order. In Muhd Faizal Haris v Timbalan Menteri [2006] 1 MLJ the appellant had been arrested for investigation under s. 3(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985 (DDA). His detention in police custody was further extended under s. 3(2). A report of investigation was submitted to the Ministry under s. 3(3) and a report of the inquiry officer was submitted under s. 5(4). On consideration of these, the minister issued a Detention Order (DO) under s.6(1). The appellant argued that there were irregularities in the arrest and detention under s. 3(2). The question before the court was whether a valid detention under s. 6 would be vitiated by prior irregularities in his arrest and detention under s. 3. In a very significant decision that whittled down the protection of Article 5(1) and (3), the Federal Court held that irregularities of the earlier arrest are irrelevant unless the previous arrest was a condition precedent to the making of a subsequent detention. The precondition to the exercise of 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 32
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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.
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