The Book of Prof Shad.docx

The isa a preventive detention order cannot be

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the ISA, a preventive detention order cannot be challenged on the ground of mala fide . The prominent cases on this point are: Karam Singh v MHEDN [1969] 2 MLJ 129; Lee Mau Seng v Minister [1971] 2 MLJ 137; Kevin Desmond De Souza v Minister [1988] 2 MLJ 493; Yeap Hock Seng [1975] 2 MLJ 279; Theresa Lim Chin Chin [1988] 1 MLJ 293; Wong Fook Nyer [1988] 2 CLJ 274; Teo Soh Lung v The Minister [1989] 2 MLJ 450; Vincent Cheng v Minister [1990] 1 MLJ 449; Lee Gee Lam [1993] 4 CLJ 155; Sukumaran [1995] 2 MLJ 247 and Shaharuddin Idris [1993] 1 MLJ 204. The courts also refuse to go into the question whether there was reasonable or sufficient cause to make an order of restricted residence: Lim Say Hoe v Timbalan Menteri [1995] 2 AMR 1200. The courts do not insist on any objective evidence being given to the courts to justify the preventive detention order. In Sinnasamy Subbiah v Timbalan Menteri [2004] 1 MLJ 378 a preventive detainee under POPO 1969 challenged the Minister’s order on the ground that he failed to fully consider the grounds of detention; 113 But for a contrary attitude see Andrew s/o Thamboosamy v Supt. of Pudu Prisons [1976] 2 MLJ 156 where a deportation order could not be enforced as no country was willing to take the deportee. In Minister v Choo Choon Yong [1977] 2 MLJ 20 a Banishment order had remained unenforced for five and eight years respectively against two detainees because the Minister could not find a country willing to receive them. The court held that a valid detention order remains valid till revoked. Passage of time does not bring it to an end. 114 The admirable Singapore decision in Chng Suan Tze v Minister [1989] 1 MLJ 69 that in ISA cases the President’s and Minister’s decisions are reviewable by the courts is no more an authority. The decision was overturned by amendments to the Singapore Constitution and the Singapore ISA. 114
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he acted mechanically and failed to apply his mind to the facts of the case. In dismissing the application the court ruled that it was precluded from adjudicating on the sufficiency of the Minister’s satisfaction. Its power was limited by law to examining procedural defects. The non-reviewability of the Minister’s discretion has a statutory basis in section 7C(1) of the Emergency (Public Order & Prevention of Crime) Ordinance 1969, section 8B(1) of the ISA 1960 and section 11C(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985. These clauses lay down that there shall be no judicial review of the executive’s discretion to detain save on grounds of procedure. However there are some departures from the above attitudes. In several cases courts have suggested that the applicant can raise the issue that the power was exercised mala fide or improperly or made for a collateral or ulterior purpose. In two celebrated cases habeas corpus was issued because the grounds of detention were not relevant to the object of the law: Minister v Tan Sri Raja Khalid [1988] 1 MLJ 182 and Minister v Jamaluddin Othman [1989] 1 MLJ 418. In Daud Salleh [1981] 1 MLJ 191, an order of detention under the Misuse of Drugs Act was quashed because there was no material evidence before the Director on which he could make up his mind.
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