The Book of Prof Shad.docx

2002 4 mlj 449 the appellants successfully argued

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[2002] 4 MLJ 449 the appellants successfully argued that the exercise of police powers under section 73(1) was mala fide because the detention was not for the dominant purpose of section 73, i.e. to enable the police to conduct further investigation into the appellant’s acts and conduct that were prejudicial to the security of Malaysia but to scrutinize the appellant’s political beliefs and activities. The Federal Court admirably held that the subjective test for ministerial detentions under section 8 is not to be applied to police detentions under section 73. The court also weakened the doctrine that on matters of national security, courts should not examine the judgment of the executive. In keeping with the House of Lord’s decision in Council of Civil Service Unions v Minister for the Civil Service [1985] AC 374 the court held that though judges should not question the executive judgment as to what national security requires, this does not absolve the court from the duty to determine whether considerations of national security were or were not at play in the exercise of executive decision. In simple terms, executive decisions on national security are amenable to examination on ground of mala fide. In Abdul Razak Baharudin v Ketua Polis Negara [2005] 388 MLJU1, the Federal Court ruled that the non-reviewability of a detention under section 8 of the ISA does not apply to the detention by a police officer under section 73. In determining the allegation of mala fide of a detention under section 73, the objective test could be applied. Security area Proclamation: Under section 47 of the ISA the Yang di-Pertuan Agong is authorized to declare an area to be a security area. The Yang di-Pertuan Agong has by PU(A) 148/69 declared the whole country to be a security area. In Teh Cheng Poh the Privy Council observed that as with all discretions conferred upon the executive by Act of Parliament, the courts have jurisdiction to inquire whether the purported exercise of discretion was ultra vires. The discretion whether and when to revoke a Security Area Proclamation is not entirely unfettered. Though the Proclamation cannot be declared as having lapsed ipso facto, mandamus could be sought against the members of the Cabinet requiring them to advise the King to revoke the Proclamation once he no longer considers it necessary for the purpose of combating subversion. Procedural issues: Complaints of non-compliance with procedural requirements can be raised before the courts. Technical defects may invalidate an order of detention: Re Datuk James Wong Kim Min [1976] 2 MLJ 245. In Re Tan Boon Liat [1977] 2 MLJ 108, the failure of the Advisory Board to consider the detainee’s representations and make recommendations thereon to His Majesty within the time limit of three months was held to be fatal to the detention order. However, the judges were divided about whether the flaw was procedural or substantive. According to Tun Suffian, the Board’s deliberations are a condition-precedent to continued detention and, therefore, of a substantive nature. 87 In
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