The Book of Prof Shad.docx

In tan tek seng 1996 1 mlj 268 the court of appeal

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But in recent years this approach has been rejected. In Tan Tek Seng [1996] 1 MLJ 268 the Court of Appeal held that ‘law’ in Article 5(1) includes procedural law. As such, a detention in violation of procedural safeguards will be declared a nullity 116 . Third, even if there was no prescribed statutory procedure, could procedural requirements be implied by the common law rules of natural justice? In Cheow Siong Chin v Timbalan Menteri [1986] 2 MLJ 235, 238 Harun J held that despite the absence of a statutory requirement, the common law rule of audi alteram partem required a prior enquiry before an order under the Restricted Residence Enactment is made. Fourth, there is a distinction between mandatory and directory procedures. In recent years, and especially after the passage of the Dangerous Drugs (Special Preventive Measures) Act 1985, and the inclusion in 1989 of ouster clauses in several preventive detention laws, courts have begun to distinguish between (a) procedural requirements which are mandatory and imperative, and (b) procedural requirements which are merely directory. (a) Mandatory procedures: In Timbalan MHEDN v Cheow Siong Chin [1987] 2 CLJ 24, it was held that a person arrested under the Restricted Residence Enactment has a right under Article 5(3) to be informed of the grounds of his arrest. In Lee Weng Kin v Menteri [1991] 2 MLJ 472, an unsigned copy of a restricted residence order merely bearing a rubber stamp was held to be null and void. In Re Roshidi b. Mohamed [1988] 2 MLJ 193, the court quashed a rehabilitation order under the Drugs Dependent (Treatment and Rehabilitation) Act 1983 because of the failure of the magistrate to give to the concerned party an opportunity to make representations. The writ can issue if there is delay in making the order of restricted residence: Ng Chai Yang [1994] 2 MLJ 336; Timbalan Menteri v Lian Nyun Fui [1991] 1 MLJ 350. In Lt Kdr Balakrishnan lwn Menteri Pertahanan [1994] 2 AMR 20, a detention under section 70 of the Armed Forces Act was declared invalid because grounds were not supplied. In Tan Hock Chan [1994] 1 MLJ 60, an extradition case, the requesting country was not a party to the treaty. The pre- conditions for the detention order were not met and the writ was issued. 117 In Rosselan Subh v Menteri [2005] 2 MLJ 660, the medical officer’s report and the rehabilitation officer’s report on what drug an 115 Parasuraman Velu v Ketua Polis Negara [2006] 5 MLJ 764 116 Ng Hong Choon v TMHEDN [1994] 4 CLJ 47; Rajoo v IGP [1990] 1 MLJ 430; Mohd Amin b. Mohd Yusoh [1995] 1 CLJ 94; PP v Koh Yoke Koon [1988] 2 MLJ 301; Lye Fong Weng [1994] 2 CLJ 626; Tan Yap Seng [1991] 2 CLJ 1400. 117 The case could also be regarded as a case of substantive ultra vires. 116
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addict was dependant on, were quite different. The magistrate making the rehabilitation order failed to take note of the discrepancy. It was held that he had acted without complying with proper procedure and without reasonable cause.
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