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IS IT THE I.S.A.

PER SE OR THE INTERPRETATIONS GIVEN BY


THE JUDICIARY THAT MAKES IT SUCH A DRACONIAN LAW
NOW?

[This article is based on 2 published articles by the author: Preventive Detention: Part I –
Constitutional Rights and the Executive, [2007] 1 MLJ lxiii; [2007] 1 MLJA 63 & Preventive
Detention: Part II – Police Power To Arrest And Detain Pending Enquiries [2007] 4 MLJ
cxxxii; [2007] 4 MLJA 132; and, a current work in progress: Legal Developments that shaped
the Formation of Malaya and Malaysia.]

There has been much focus on the infamous Internal Security Act 1960 (ISA)
in recent times and even a movement calling for it to be repealed altogether. Is
it the law that is bad or is it the manner in which the law has been applied by
the executive and interpreted by the judiciary that has been found wanting?
Although Malaysian constitutional law has its roots in English law and follows
the ‘Westminster’ model and supposedly has the doctrine of ‘separation of
powers’ there has been scant respect for the doctrine. In Malaysia, this
constitutional concept has been reduced to being just a convenient tool to be
used by the executive to increase its powers and at other times to be severely
criticised as a remnant of British colonialism totally unsuitable and
unsustainable in the modern Malaysia. The lack of respect for the
parliamentary process is reflected in the comments of the former Prime
Minister of Malaysia, Dr Mahathir, who has been quoted by Amnesty
International1 as saying that:

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‘(I)n the main, Parliamentary sittings were regarded as a pleasant formality... which
would have no effect on the course of the government. The sittings were a concession
to a superfluous democratic practice. Its main value lay in the opportunity to flaunt
the Government's strength. Off and on, this strength was used to change the
constitution. The manner, the frequency and the trivial reasons for altering the
constitution reduced this supreme law of the nation to a useless scrap of paper.’ [The
Malay Dilemma, 1970, Times Books International]

In addition to the ISA, preventive detention is also allowed by the Dangerous


Drugs (Special Preventive Measures) Act 1985 and the Emergency (Public
Order and Prevention of Crime) Ordinance 1969. The Human Rights
Commission of Malaysia (SUHAKAM) has recommended that the ISA be
repealed and replaced by new comprehensive legislation that, while taking a
tough stand on threats to national security (including terrorism), does not
violate basic human rights.2 The USA, one of the keenest critics of preventive
detention in other countries, has since the terrorist attack on the New York
Twin Towers on 11 September 2001 changed some of its perceptions.3
Australia has also reacted by enacting numerous anti-terrorist laws that have
seriously eroded some of the human rights of its citizens and has introduced
limited preventive detention.4

The sad truth and stark reality is that the Malaysian courts have not been
notably vigilant to prevent the executive employing preventive detention as an
easy substitute for adequate penal laws and using it as a means to suppress
political opposition and dissent. ‘Anti-government’ has at times been simply
equated to being ‘anti-national’. In their report, the Reid Commission (that
was entrusted with the job of drafting the Merdeka Constitution) mentioned
that the rights they were recommending had already been firmly established
throughout Malaya and the guarantee of the fundamental rights would be
provided by the mechanisms of: the ‘Constitution being the supreme law’; ‘the

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power and duty of the Courts to enforce these rights’; and, ‘the Courts would
annul any attempt to subvert any of them whether by legislative or
administrative action or otherwise’.5

Not only have the Malaysian courts failed to annul the encroachments on the
fundamental rights but their lack of judicial activism has in fact subverted
those rights further. The failure of the Malaysian courts in relation to the ISA
starts with the fact that they have generally accepted the subjective satisfaction
of the executive for justifying the detention of an individual.6

In March 1988, Article 121(1)(b) of the Malaysian Constitution was amended


to make the jurisdiction and powers of the court subject to federal law rather
than the Constitution itself. This made it possible for the Malaysian
Parliament to limit or abolish judicial review by a simple majority vote rather
than by the two-thirds majority required for a constitutional amendment. This
was followed up by amendments to the ISA in 1989 that inserted sections 8A,
8B and 8C and they seem to slam the door shut altogether on judicial review
where the substantive power is exercised by the Minister under section 8. The
only review allowed is limited to procedural matters.

The courts have been most reluctant to address the fundamental issue of
whether the amendment to Article 121(1)(b) of the Malaysian Constitution
should have been allowed to be made. They have preferred instead to
repeatedly adopt the view taken by the Federal Court in Sugumar
Balakrishnan7 that ‘the court must give expression to Parliament’s intention’
and inquire no further. In Kerajaan Malaysia & 2 Ors. v Nasharuddin bin
Nasir8 the Court was willing to shackle its own powers when it decided that
although section 8B of the ISA ousted the court’s review jurisdiction it was not

3
unconstitutional and that ‘an ouster clause may be effective in ousting the
court’s review jurisdiction if that is the clear effect that Parliament intended;
that if the intention of Parliament is expressed in words which are clear and
explicit, then the court must give expression to that intention.’

Malaysian legal history shows that for too long the Malaysian judges have
dubiously circumvented or disingenuously interpreted any right that may have
been available to a detenu into impotence. For example, Suffian FJ in Karam
Singh v Menteri Hal Ehwal Dalam Negeri9 nearly choked the life out of
Article 5(1) of the Malaysian Constitution when he made an unnecessary
observation that there was a difference between the Indian and Malaysian
constitutions in that the word ‘procedure’ did not appear in the Malaysian
Constitution as it did in the Indian Constitution. Fortunately, Lee Hun Hoe CJ
(Borneo) in Re Tan Boon Liat10 gave Article 5(1) a lifeline when he rightly
ruled that the expression ‘in accordance with law’ in Article 5(1) was wide
enough to cover procedure as well and if the expression were to be construed
as to exclude procedure than it would make nonsense of Article 5(1).

Raja Azlan Shah FJ (as His Highness then was) in Loh Kooi Choon v
Government of Malaysia11 summed up the true attitude of the Malaysian
courts when he even went so far as to say:

‘Our courts ought not to enter this political thicket, even in such a worthwhile cause
as the fundamental rights guaranteed by the constitution…’12

Delivering the judgment of the Court, Steve L.K. Shim C.J. (Sabah &
Sarawak) in Kerajaan Malaysia & 2 Ors. v Nasharuddin bin Nasir,13 has
accepted that under section 8 of the ISA, the Minister has been conferred

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powers of preventive detention that ‘can be said to be draconian in nature’ but
nevertheless valid under the Malaysian Constitution. Accepting that these
rights are ‘draconian’ but, at the same time legitimate in a constitution that has
a chapter on ‘fundamental liberties’, is paradoxical and an affront to justice
and human dignity.

In a number of cases section 8(1) of the ISA has been challenged on the ground
that it does not provide an adequate objective standard that the courts can
utilise to determine if the requirements of law have been complied with. This
is where the detenu will be faced with a steep wall to scale made even more
slippery by some of the decisions of the Malaysian cases that have only helped
to bury scant safeguards that could have been afforded to the detenu by a
judiciary prepared to respect them. The need to be vigilant is illustrated in an
old Burmese case,14 where a similar provision in a similar Act was considered,
and the Burmese Supreme Court ruled that to apply the subjective test to the
‘satisfaction’ of the Minister would clearly be against the provision of the Act
as a whole. If the subjective test is to be deemed to be the proper test then it
must be made to depend on the unchallenged opinion of the Minister so
empowered. The fact that there is an immediate right to make representations
against the order of detention to the Appeal Commission implies that the
Minister’s exercise of discretionary power to detain a person cannot be a
subjective power. The Appeal Commission had a duty to investigate the
grounds of detention. In order to do that the Appeal Commission had the right
to call on the Minister to provide such information and documents, as they
required. If the Appeal Commission reported that it could not find any
reasonable ground for the continued detention of a person, that person was to
be released with all speed. As the Burmese Supreme Court said:

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‘To no ‘satisfaction’ or ‘belief’ which can thus be enquired into and
overruled by an extraneous authority can the subjective interpretation be
applied.’15

In Karam Singh’s case the order of detention stated three grounds in the
alternative. The appellant argued that the detention order was vague and
ambiguous and had been made by the Minister without proper care and
consideration. Ong C.J. in this case defined ‘want of good faith’ as to mean
‘no more than that, in the serious matter of depriving a citizen of his liberty
without trial, there was absence of care, caution and a proper sense of
responsibility.’

Despite such rhetoric by Ong C.J. he still did not find that the providing of
grounds in the alternative were sufficient to constitute ‘absence of care,
caution and a proper sense of responsibility.’ In proving mala fides what has
got to be made out is not want of bona fides but want of bona fides coupled
with non-compliance of mind on the part of the detaining authority.16
Providing grounds in the alternative where some of the grounds are obviously
irrelevant should have vitiated the detention order.

In the case of Noor Ashid bin Sakib v Ketua Polis Negara17 Jeffery Tan JC
held that the ‘subjective satisfaction of the Minister is not subject to judicial
review and the fairness of the Minister's decision is subjective and that the
court is only concerned with the procedural aspect of the exercise of executive
discretion.’18 The Court was more explicit in Abdul Razak Bin Baharudin and
Others v Ketua Polis Negara and Others19 when it went so far as to declare
that the exercise of the power of preventive detention in bad faith by the
Minister is non reviewable as the amendments reversed the law and ‘what was

6
considered as less important previously i.e. procedural non-compliance
became important and what was considered as more important previously i.e.
mala fide became non-consequential.’ The Court further ruled that an order of
the Minister under section 8 could now only be challenged on the ground of
procedural non-compliance. Steve Shim C.J. (Sabah & Sarawak) in
Mohamed Ezam Mohd Noor v Ketua Polis Negara & Ors20 made sure that
mala fide could not be used as a ground to challenge a detention order when he
said that mala fide is not a ‘procedural non-compliance’ and any test, whether
subjective or objective, used to determine whether mala fide has or has not
been shown is of no relevance now to a challenge against an act done under
section 8 of the ISA. The Malaysian Courts have thus effectively bolted the
door on judicial review of the substantive exercise of the power of preventive
detention and have even given the Executive the power to act in bad faith and
to deny a detenu even the minimum rights that every individual should have
against the State in a democratic society such as Malaysia.

It is clear that the legislature has been active in closing the doors of judicial
review but the courts themselves have also been helpful in the process.

As it can be seen, in almost all Malaysian cases, the judges have been quite
content to allow the executive to exercise the power of detention unfettered by
any restraining power. Higher constitutional ideals are seldom alluded to in
their judgments and on most occasions it is an exercise in semantics to
interpret the words of the Malaysian Constitution and other written laws to
strenuously accommodate preventive detention laws. There have been some
lonely voices raised such as the declaration made by Edgar Joseph Jr. J. (as he
then was) in Athappen a/I Arumugam v Menteri Hal Ehwal Dalam Neqeri.
Malaysia & Ors21 that if it is true that an order of detention:

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came to be made in a casual or cavalier fashion, it cannot properly be said that the
Cabinet or the minister concerned had been “satisfied”. On the other hand, if the
decision was made upon a proper evaluation of the facts and surrounding
circumstances and after due deliberation, that was all that could be required for the
issue of an order based on subjective “satisfaction”.

His commendable words in the case of Puvaneswaran v Menteri Hal Ehwal


Dalam Negeri, Malaysia & Anor also now ring hollow (in the light of the
latest decisions) when he declared that:

There had been a consistent current of judicial opinion in our court, including the
latest decision of the Supreme Court, which indicate that when confronted with the
problem of interpreting powers of preventive detention, they have interpreted them
strictly so as to require that the provisions of the relevant statute are rigid and
meticulously complied with.

Malaysian Courts have always shown a great reluctance to impose any


objective standards for the exercise of the executive’s power to detain a person
without trial. The courts have repeatedly declared that ‘whether there is
reasonable cause to detain is a matter of opinion and policy which decision
can only be taken by the executive’22 and ‘so long as the Minister is satisfied
after considering all the information available to him, it is not for the court to
question how or why he became so satisfied.’23 The Malaysian courts have
also ruled that the ‘fairness of the Minister's decision is subjective’24 and that
the ‘subjective satisfaction of the Minister of Home Affairs is not subject to
judicial review.’25 The Malaysian Courts have further imposed restrains on
themselves by ruling that Courts ‘do not sit in appeal against the decision of
the Minister regarding the material on which the detention order was made’
and ‘do not examine the adequacy or truth of these materials and cannot

8
interfere with the decision on the ground that if the court had examined them it
would have come to a different conclusion’ as the Court ‘cannot arrogate to
itself the responsibility of judging the sufficiency or otherwise of the
grounds.’26

There have been moments in the recent judicial history of Malaysia, which
have given a glimmer of hope that at last there may be small footholds on the
slippery walls the a detenu has to scale when attempting to challenge a
detention order. For example Tan JC in Lim Say Hoe v Timbalan Menteri
Dalam Negeri, Malaysia & Anor27 said that ‘such powers are exercisable
strictly in accordance with procedure, and any detaining authority less than
meticulous with the procedure laid down will find the Court's displeasure.’

However on appeal in all cases, the Federal Court has snuffed out any hope of
the judiciary adopting a new and exciting approach. For fleeting moments, it
sometimes serves to revitalise the spirit of the Malaysian Constitution and the
protection (no matter how limited) it affords to a detenu. This is illustrated in
the case of Gurcharan Singh a/l Bachittar Singh @ Guru v Penguasa, Tempat
Tahanan Perlindungan Kamunting, Taiping & Ors28 where the High Court of
Malaya held that the extension order to detain the appellant was null and void.
The appellant had initially been detained under section 8(1) of the ISA for a
period of two years and that order was later extended for another two years.
The extension order was made under section 8(7) of the ISA. The section
reads:

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The Minister may direct that the duration of any detention order or restriction order
be extended for such further period, not exceeding two years, as he may specify, and
thereafter for such further periods, not exceeding two years at a time, as he may
specify, either-

(a) on the same grounds as those on which the order was originally made;

(b) on grounds different from those on which the order was originally made; or

(c) partly on the same grounds and partly on different grounds;

Provided that if a detention order is extended on different grounds or partly on


different grounds the person to whom it relates shall have the same rights under
section 11 as if the order extended as aforesaid was a fresh order, and section 12(1)
shall apply accordingly.

The appellant argued that this section made it imperative for an extension
order to state the grounds of detention and as the grounds had not been stated
in the extension order he could not know whether he had a right to make any
representations under section 11 of the ISA. That, he contended, amounted to
a denial of his right and as such, the extension order should be declared null
and void. The respondents, on the other hand, argued that the extension order
was not a new order and merely an extension of the original detention order
and therefore the grounds stated in the original detention order should be
presumed to imply to the extension order. It was further argued that the
Minister only needed to state the grounds if they were different from those
stated in the original detention order.

NH Chan JCA in the Court of Appeal made no distinction between grounds


and reasons when he expressed the opinion that ‘under section 8(1) of the ISA
there are three grounds or reasons for which a person may be detained….’29
Malek Ahmad JCA, in his dissenting judgment disagreed with this view as he

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stressed the point that ‘purposes’ and ‘grounds’ are two different things. The
purposes are as stated in section 8 (1) the Act but the grounds for detention
must be given in the statement in writing as provided for in sub-paragraph (1)
of section 11(2)(b) of the Act together with the allegations of fact and other
particulars as stated in sub-paragraphs (ii) and (iii) of that same paragraph. In
his judgment he ruled, ‘there is no need for the grounds to be identical with
any or all of the purposes of detention. The grounds supplied could be in
words totally different from the statement of the purposes of detention.’

His view he felt was further:

‘strengthened by the use of the word 'purposes' in subsection (5) of s.8 of the Act
which begins with 'If the Minister is satisfied that for any of the purposes mentioned
in subsection (1) ...' So when the words 'acting in any manner prejudicial to the
security of Malaysia' appear in both the detention order and the extension order, they
do not qualify as a ground for detention but only as a purpose for the detention.’

He also found support for this view in the words of the Federal Court
expressed in the case of Karam Singh v Menteri Hal Ehwal Dalam Negeri30
wherein the Federal Court inter alia said:

the words “with a view to preventing that person from acting in any manner
prejudicial to the security of Malaysia or any part thereof or to the maintenance of
public order or essential services therein” in s 8(1)(a) of the Internal Security Act do
not indicate the grounds for a person's detention; they indicate its purpose or
purposes. It is true that the grounds for a person's detention must be given, but
grounds are quite distinct from purposes.

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Ahmad Fairuz Sheikh Abdul Halim FCJ delivering the judgment of the
Federal Court in this appeal agreed with the reasoning of Malek Ahmad JCA
that section 8(1) of the ISA ‘merely specifies the three purposes for detention’
and ‘the grounds must mean the grounds referred to in s.11 of the Act...’

On the issue of whether the grounds for detention must be stated in the
extension order, Mokhtar Sidin JCA, in his judgment, regrettably, was
prepared to allow presumptions to be made against the detenu, even in the
important matter of the personal liberties of the detenu, when he expressed the
view that ‘the normal and natural meaning of an extension order is an
extension of the initial order in entirety unless otherwise stated’.31 He also
went on to make the grounds stated in the original detention order applicable
to the extension order unless different grounds or partly different grounds are
stated in the extension order. He presumed in favour of the State and not the
detenu when he said that it cannot ‘be assumed that the extension order was on
different grounds or partly on different grounds.’ This is in sharp contrast to
an earlier finding made by Wan Yahaya SCJ (as he then was) in the Supreme
Court case of Ng Hong Choon v Timbalan Menteri Hal Ehwal Palam Neaeri
& anor32 when he said that laws which deprive the subjects of their rights to
personal liberty are subject to strict construction in the same way as are penal
laws and that it is a recognized principle of interpretation that laws which
encroach on the rights of the subject should be construed in conjunction with
laws which guarantee the subjects ‘fundamental rights to freedom and
whenever possible, to be so construed as to afford respect and recognition of
such right, that the power under the restrictive laws can only be exercised in
accordance with the procedure laid down by the law, and that in the event of
any failure to conform to such procedure, the court may construe it in favour
of the subjects liberty.’

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a) Writ of Habeas Corpus

As stated earlier, a person can make representations against his detention if an


order of detention has been made against him/her by the Minister under
section 8(1) of the ISA but under section 73 however he has no such right.
Generally, the attitude of the Malaysian courts in respect of detention under
section 73 is that the courts have jurisdiction only in regards to any question
on compliance with any procedural requirements in the ISA and they seldom
grant any substantive rights to the detenu. When it comes to procedure, Lee
Hun Hoe CJ (Borneo), in the case of Re Datuk James Wong Kin Min33, in
delivering the judgment of the Federal Court observed that:

In a matter so fundamental and important as the liberty of the subject, strict


compliance with statutory requirements must be observed in depriving a person of his
liberty. The material provisions of the law authorising detention without trial must be
strictly construed and safeguards which the law deliberately provides for the
protection of any citizen must be liberally interpreted. Where the detention cannot be
held to be in accordance with the procedure established by the law, the detention is
bad and the person detained is entitled to be released forthwith. Where personal
liberty is concerned an applicant in applying for a writ of habeas corpus is entitled to
avail himself of any technical defects which may invalidate the order which deprives
him of his liberty ... An inherent part of their (the courts’) function is to see that the
executive acts within the law and does not encroach unnecessarily into the realm of
liberty of the subject... If this constitutional guarantee of article 5(1) is to have any
real meaning at all, then it is imperative that the courts should intervene whenever the
liberty of the subject is encroached upon not in accordance with the law.

A historic step was taken in Nasharuddin bin Nasir v Kerajaan Malaysia &
Ors34 by the Shah Alam High Court judge Suriyadi Halim Omar in November

13
2001 when he ruled that there was no evidence to show that the Kumpulan
Militan/Mujahiddin Malaysia (KMM) suspect Nasharuddin Nasir detained
under the ISA was involved in any terrorist activities as alleged by the police
when they arrested him in April 2001. Suriyadi J observed that the onus to
prove mala fide on the part of the police still remains on the detainee and

Not only must he be a mind reader and speculate on the reasons of the rejection, but
must prove mala fide without help from them. With near nothing to start off, and
trapped within the confines of the inscrutable faces of his jailors, he might as well
throw in the towel. Thankfully, the only avenue still left unplugged is that there are
no inhibitive case laws or statutory provisions that restrict the manner of proving that
mala fide factor.

Suriyadi J found that the act of permitting to meet with his family but not his
lawyer was arbitrary and sufficiently showed mala fide. As Suriyadi J
observed:

The arbitrary attitude of the police permitting the family, but not his solicitors was
disconcerting to say the least. Surely in that circumstance, legal advice would have
been more imperative and beneficial to the detainee, rather than a social visit from his
family. Even though some temporary reprieve to his peace of mind could be attained
by the presence of his immediate family, surely permanent freedom would have been
uppermost in his mind at that stressful moment. I could not help but conclude that the
coldly calculative selection and motive of the police was already questionable at that
stage. By being deliberately discerning, the police had deprived him of prompt
professional advice at such a crucial moment bearing in mind that the incarceration of
a person not in accordance with law, however short must not be condoned.

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Furthermore, if lawyers may impede or derail police investigations, why not his
relatives who may be more persuasive and troublesome? I failed to find any
presumption provisions, or arrive at some sensible conclusion that lawyers have a
higher propensity to be meddlesome, and a greater threat to the security of this
country at that stage of the police investigation.

When the matter was brought before the Federal Court on appeal, it again
disappointingly ruled that the detention under the ISA was valid and allowed
the government’s appeal against the release order. Steve Shim C.J. (Sabah and
Sarawak) simply and inadequately explained, ‘(w)here matters of national
security and public order are involved, the court should not intervene by way
of judicial review as these are matters especially within the preserve of the
executive.’

The Federal Court has correctly ruled in Abdul Razak Bin Baharudin and
Others v Ketua Polis Negara and Others35 that the restriction to review a
detention under section 8 of the ISA does not apply to a detention by a police
officer under section 73. The Federal Court accepted the view expressed in
Mohd Ezam that section 8 was not necessarily dependent on section 73(1) or
vice versa and were ‘inextricably connected’. The Federal Court made a
qualified acceptance of the ruling in Mohd Ezam that, in determining the
allegation of mala fide with regard to the arrest and detention under section
73(1), the objective test could be applied. The Federal Court however left the
right to also slam this door shut when it refused to categorically state whether
the objective test should be used. It reservedly concluded that it would like to
make it clear that:

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in this judgment, we express no opinion whether this Court was right or wrong in
Mohamad Ezam in applying the objective test in respect of section 73. All we say is
that, even if that is the correct test, that is only applicable to section 73.36

In Ketua Polis Negara v Abdul Ghani Haroon37 the applicants were arrested
under section 73(1) of the ISA and the High Court at Shah Alam held that the
applicants had a constitutional right to be present at the hearing of their habeas
corpus application by virtue of Article 5(2) of the Malaysian Constitution.
The High Court ruled that it was implicit that the right to apply to the High
Court for a writ of habeas corpus was not merely a legal right but also a
constitutional right available to any person who believed that s/he had been
unlawfully detained. It followed that the right being a constitutional right, a
detainee had every right to be present in court at the hearing of his/her habeas
corpus application. The Federal Court again snuffed out any hope of such a
substantial right being granted when it ruled against the decision of the High
Court.

The Federal Court further tried to justify not according the writ of habeas
corpus the status of a constitutional right (as the Shah Alam High Court had
done) by making a confusing distinction when it said that ‘criminal
proceedings and preventive detention are not parallel proceedings. The object
of a criminal prosecution is to punish a person for an offence committed by
him, while a preventive detention is an anticipatory measure and may not
relate to an offence. Hence, the constitutional right to be present in habeas
corpus proceedings is a limited one and the applicants here were not facing
criminal charges.’ It is difficult to see the necessity for making such
statements.

16
Habeas corpus is the Latin phrase for ‘you have the body’.38 The writ was
originally known as habeas sub jiciendum and generally, the person to whom
the writ is directed must produce in open court the body of the party so
committed or restrained and must certify the true cause of imprisonment or
detention.39 Malaysian law has its origins in English law and it is interesting
to note that the English Habeas Corpus Act 1640 was initially passed to
counteract an executive order of detention. The Act provided that ‘any person
imprisoned by Order of the King or Council should have habeas corpus and be
brought before the court without delay with the cause of imprisonment
shown.’ A writ of habeas corpus is a judicial mandate to a prison official
ordering that an inmate be brought to the court so it can be determined whether
or not that person is imprisoned lawfully and whether or not s/he should be
released from custody. It has nothing to do with the kind of charges or
detention orders that the person is held under.

b) Right to Counsel

A case often quoted to deny a detenu legal counsel is Theresa Lim Chin Chin v
Inspector General of Police40 where Salleh Abas LP held that the question of
when a person arrested under section 73 of the ISA can be allowed to exercise
his/her right under Article 5(3) of the Constitution to consult legal counsel of
his/her choice ‘should be best left to the good judgment of the authority as
when such right might not interfere with police investigation.’

It is interesting to note the comment of one of the drafters of the original


version of the ISA, Professor Hickling who, when commenting on the case of
Theresa Lim said:

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It is curious to find a court enlarging the provisions of the Act, the limits of the
authority of which are so carefully crafted and specified in a special article of the
Federal Constitution. After all, when a fact is open to two inferences, one in favour of
liberty and the other not, it is usual to adopt the former, not the latter.41

Suriyadi J in Nasharuddin’s case was not prepared to give away the power of
judicial review so easily when he ruled that ‘the right of legal representation
would be meaningless if a detainee were to be denied of professional
assistance caused by some overzealous but ill-informed administrator.’ Sadly
this is not the case in Malaysia. In Tee Yam @ Koo Tee Yam v Timbalan
Menteri, Menteri Keselamatan Dalam Negeri, Malaysia and Others,42 the
Federal Court has even accepted that denial of counsel is not a ground for the
granting of habeas corpus. In the same case the Court also ruled that, ‘the
signature of the Minister’s secretary on the allegations of fact does not reflect
on the non-application of the subjective mind. The signature of the secretary
instead of the Minster is not a procedural defect. The non-signature of the
Minister is not fatal, so long as the allegations of fact have been conveyed.’

Conclusion

It can be clearly seen that the mindset of the Malaysian judges has not changed
much in always endorsing all amendments passed by Parliament no matter
how arbitrary the law and what fundamental rights are being sacrificed to
facilitate the easy exercise of power by the executive. Such a mindset only
serves to reduce executive accountability and respect for human rights under
the rule of law. Compliance with constitutional law is not confined to
compliance with the written word of the Malaysian Constitution but also the
ideals on which the Constitution is based. Legislation incompatible with those

18
ideals should be struck down. In such situations the courts should bring
themselves to act in a supervisory role rather than the conservative role they
have adopted for so long. Judges should be able to apply a heightened
standard of judicial review and be involved in the genuine examination of the
process and merits of any detention order and not be reduced to a rubber-
stamping role as envisaged by the recent amendments to the ISA. But the
slamming of doors on the rights of a detenu continues unabated as the courts
continually concentrate on giving effect to the laws made by Parliament rather
than question if Parliament had the power to make such constitutional
amendments that allow arbitrary laws which suppress human rights with the
stroke of a pen.

The concept of natural justice is not unknown especially in constitutional law.


In many countries in the world the area of its applicability continues to expand
with time. When the law in question is silent or ambiguous there is nothing to
prohibit the courts from applying the principles of natural justice. In fact, even
if the law has been clearly spelt out by a parliament, the courts would still be
justified in striking it down if it violates basic principles of natural justice that
the civilised world has come to accept as entrenched rights. Where the
executive or administration has failed to observe natural justice, then
deprivation of personal liberty may be characterised as being not ‘in
accordance with the law’ and any person detained should be given relief.
There is no bar in the way of the court to reading natural justice into the terms
of the law and acting accordingly.43 Malaysian courts have largely ignored the
concept in the interpretation of preventive detention laws and will either rue
that fact or will have to start being innovative and use it to break the almost
choking stranglehold the executive has on the rights of a detenu. At present

19
the executive tramples these rights with impunity and marches on relentlessly
obliterating the remaining rights.

Constitutional interpretation requires a higher vision and the words of Lord


Denning urge a judge undertaking such a task not to be a mere mechanic for
s/he must also be an architect as it is on his/her work that civilised society
depends.44 As he further says: “(s)omeone has to be trusted. Let it be the
judges.”45 Sadly, the Malaysian courts have all too often surrendered the
powers of judicial review all too feebly.

It is remarkable to note that in a country such as Sri Lanka that has


experienced much violence and blatant acts of terrorism the judiciary has
nevertheless remained vigilant of the basic constitutional rights of its
citizens.46

Are the strong winds of change about to blow in Malaysia? In an article,


Gopal Ram (a judge of the Court of Appeal in Malaysia), contends that:

There is therefore ample scope for our courts to rely on international law principles
and documents to develop our human rights law. The principal document which may
be used for this purpose is the Universal Declaration of Human Rights 1948. This is
because Parliament, through the Human Rights Commission of Malaysia Act 1999
says [in section 4(4)] that “regard shall be had to the Universal Declaration of Human
Rights 1948 to the extent that it is not inconsistent with the Federal Constitution”. Be
it noted that Act says “regard shall be had” and not “regard may be had”. A similar
phrase “shall have regard” is common place in statutes and has been consistently
interpreted both here and elsewhere as imposing an obligation. The language of the
Act – which is substantive and not procedural law – is therefore prima facie
mandatory and not merely directory. The “non-inconsistency” requirement in section
4(4) is easily met because, when prismatically interpreted, the Part II liberties are
entirely consistent with the terms of the 1948 Declaration. Whether the approach that

20
has found acceptance in other Commonwealth countries will be adopted here is a
matter that must await testing in some future case.’47

It is an approach that has been passed over even when the opportunity was
there in the past and it remains to be seen when the Malaysian courts will
ever seize that opportunity. Outdated and controversial case law can and is
sometimes superseded by laws made by Parliament. Parliament has the
power to make such laws. However the courts do have the ultimate power
to decide on the legality of any law enacted by the Parliament and in that
way still act as a check on any arbitrary exercise of legislative power by
Parliament. The courts can still ultimately check the arbitrary exercise of
power by the executive. The only question is whether there is the will to do
so.

Hardial Singh Khaira LL.B (Hons)(Univ. Malaya); LL.M (Univ. W. Australia)

Honorary Research Fellow (Law)

Murdoch University

Western Australia

21
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II
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1 Human Rights Undermined: Restrictive Laws in a Parliamentary Democracy,


http://web.amnesty.org/library/index/ENGASA280061999
2 Review of the Internal Security Act 1960, 2003, at p.x. http://www.suhakam.org.my
3 See the USA Patriot Act
4 For example the Australian Anti-Terrorism Act 2005

III
5 See Chapter IX, Fundamental Rights: Constitutional Guarantees, Para 161 p.70 of the Report. Emphasis added
here.
6 See Karam Singh v Menteri Hal Ehwal Dalam Negeri (1969) 2 MLJ 129
7 (2002) 3 AMR 2817
8 (2003) 6 AMR 497
9 Supra, at p.147
10 [1976] 1 LNS 126; [1976] 1 LNS 133; [1977] 1 LNS 107; [1977] 1 LNS 110; [1977] 2 MLJ 108 at p.114
11 [1975] 1 LNS 90; (1977) 2 MLJ 187 at p 188
12 Emphasis added.
13 (2003) 6 AMR 497 at page 506.
14 Tinsa Maw Naing v The Commissioner of Police, Rangoon Supreme Court (1950) Burma Law Report 17.
15 Emphasis added.
16 Lawrence Jaochima Joseph D’Souza v State of Bombay, A.I.R. 1956 S.C. 531
17 [2001] 4 CLJ 737; 2002-5 MLJ 22; 2001 MLJ LEXIS 393 at p.29H-30B.
18 Emphasis added.
19 2005 MLJU LEXIS 239; [2005] 388 MLJU 1
20 (2002) 4 CLJ 309
21 (1984) 1 MLJ 67
22 See for example Karam Singh v Menteri Hal Ehwal Dalam Negeri Malaysia (1969) 2 MLJ 129
23 Menteri Hal Ehwal Dalam Negeri Malaysia & Ors v Chua Teck (1990) [1990] 1 CLJ 178 (Rep); [1990] 1 CLJ 220
(1990); 1 MLJ 104.
24 Theresa Lim Chin Chin & ors v IGP [1988] 1 LNS 132; (1988) 1 MLJ 293
25 Minister for Home Affairs Malaysia & Anor v Karpal Singh [1988] 1 CLJ 632 (Rep); [1988] 1 CLJ 197; (1988) 3
MLJ 29.
26 See Wong Fook Nyen v Timbalan Menteri Dalam Negeri Malaysia & 2 Ors [1988] 2 CLJ 543 (Rep); [1988] 2 CLJ
274; (1988) 2 CLJ 274 and Yeap Hock Seng @ Ah Seng v Minister for Home Affairs, Malaysia (1975) 2 MLJ
279].
27
1995 MLJU LEXIS 1023; [1995] 478 MLJU 1; [1995] 2 CLJ 825
28 [2002] 4 CLJ 249; 2002-4 MLJ 255; 2002 MLJ LEXIS 475
29 Emphasis added
30 Supra, at p.147
31 Emphasis added.
32 1994 3 MLJ 285 at p.294
33 [1976] 2 MLJ 245
34 [2004] 1 CLJ 81; 2002-6 MLJ 65; 2002 MLJ LEXIS 262,

IV
35 2005 MLJU LEXIS 239; [2005] 388 MLJU 1
36 Emphasis added
37 [2001] 2 CLJ 574; 2001-4 MLJ 11; 2001 MLJ LEXIS 283
38 http://www.lectlaw.com/def/h001.htm
39 Halsbury, Laws of England, Vol. XI, at p.28.
40 [1988] 1 MLJ 293
41 Wu & Hickling, Hickling’s Malaysian Public Law, Pearson, PJ, 2003, at p 161.
42 2005 MLJU LEXIS 71; [2005] 236 MLJU 1
43 AK Gopalan v State of Madras (supra)
44 Foreword to Dhavan, The Supreme Court of India, 1977.
45 What Next in the Law, Butterworths, 1982, at p.330
46 See Udagama, Taming of the Beast: Judicial Responses to State Violence in Sri Lanka, Spring 1998, 11 Harvard
Human Rights Journal 269.
47 Dato' Gopal Sri Ram, Human Rights: Incorporating International Law into the Present System,
http://www.mlj.com.my/free/articles/gopalsriram.htm,