The Book of Prof Shad.docx

12 with repeal of the isa can a detention under isa

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12 With repeal of the ISA, can a detention under ISA still continue? Fatimah’s continued detention after repeal of the ISA on 22 June 2012 was illegal because section 32(2) (a) of SOSMA is unconstitutional. Section 32(2)(a) legitimizes the detention but does not provide for the mandatory safeguard of an Advisory Board as required by Article 151. (see para 11 above). Ection 32(2) (a) is therefore unconstitutional. 13 Is s 32(2)(a) of SOSMA a retrospective law that is in violation of Art 7? Section 32(2)(a) of SOSMA is unconstitutional in that it is a retrospective piece of legislation that is forbidden by Article 7(1). In its application, SOSMA seems to apply to crimes, facts, orders, detentions prior to its enactment. This appears unconstitutional. Neither is the impugned section shielded by Article 149 because Art 149 authorises violation of Arts 5, 9, 10, 13 but NOT of Art 7. Unfortunately for Fatimah, the government may argue that Art 7(1) bans retrospectivity in only two circumstances: (i) creation of an offence and (ii) increasing the penalty of an offence. So s 32(2)(a) may not fall foul of Art 7(1). 14 Is the subsequent charge under the Official Secrets Act (OSA) a double jeopardy under Art 7(2)? Fatimah’s lawyers may argue that when the police first arrested Fatimah, they informed her that she had violated the OSA. But then the OSA charge was not pursued and she was detained under the ISA. When the ISA was repealed, the government fell back on the OSA a second time, thereby trying her twice for the same charge. In reply the government may answer that there is a difference between CHARGED and TRIED in a court. Fatimah was never TRIED under the OSA the first time. She was only charged. There is therefore no double jeopardy. Fatimah may also argue that she was detained twice – first under the ISA and then under the OSA. The government may reply that there is no double jeopardy because a detention under the ISA does not bar a trial under the criminal law at some later stage on the same set of facts: PP v Musa (1970) 15 For procedural violations of Article 5(3) and (4) can habeas corpus issue? Fatimah can submit that the first arrest and detention by the police on April 3, 2012 was a blatant violation of Article 5(3) and (4) of the Federal Constitution. This unlawful detention was not cured by the subsequent preventive detention order by the Minister under section 8 of the ISA. 8
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However the government may argue that procedural violations are mere defect of form, not of substance: Karam Singh v Menteri (1969 ). The right to know the grounds of arrest, the right to see a lawyer and the right of production before a Magistrate are not rights of substance but mere procedural rights. In rebuttal it can be submitted that the word law in Art 5(3) includes both procedural and substantive law: PP v Koh Yoke Koon ( 1988) and Tan Tek Seng (1996 ). In Lim Kui Hin v PP (2013) the appellant was committed by court to a drug rehabilitation centre without giving him a chance to challenge the evidence against him and to make representation. The lower court’s order was quashed.
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