FEDERAL COURT OF MALAYSIA
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www.ipsofactoJ.com/appeal/index.htm [2004] Part 1 Case 8 [FCM] |
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FEDERAL COURT OF MALAYSIA |
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Coram |
Malaysia - vs - Nasharuddin Nasir |
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MOHAMED DZAIDDIN CJ (MALAYSIA) STEVE L.K. SHIM CJ (SABAH & SARAWAK) SITI NORMA YAAKOB FCJ |
9 APRIL 2003 |
Judgment
Steve L.K. Shim, CJ (Sabah & Sarawak)
(delivering the judgment of the court)
THE ISSUES
On November 8, 2002, the Shah Alam High Court issued a writ of habeas corpus against the respondent ordering his release from a s 8 ministerial detention order, Dissatisfied, the appellants have appealed against that order. The notice of appeal filed on November 9, 2002 is signed by the attorney-general. The petition of appeal is dated December 23, 2002. Although the appellants, in their petition, have propagated 9 grounds, they have decided, not without some relief on our part, to proceed only on one ground. Still, it covers a wide berth and it states:
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That the learned judge had erred in law when he had misdirected himself in deciding that the Minister's order of detention under section 8(1) as unlawful after having concluded that the detention by the police under section 73(1) was unlawful. |
Possibly because of its generality counsel for the appellants has advanced a number of what he calls reasons in support which are in reality more in the nature of propositions and they can, I think, be effectively compressed into two. They are
that the learned judge had no jurisdiction to hear the complaint against the detention order issued by the Minister under s 8 of the Internal Security Act 1960 (hereinafter referred to as "the ISA")
given the nature of the motion before him; and
in view of the ouster clause in s 8B of the ISA,
that the learned judge was wrong in holding that the legality or otherwise of a s 8 detention hinges on the detention under s 73 of the ISA.
THE FACTUAL BACKGROUND
The factual background relevant to these considerations can be briefly stated herein. The respondent, a fishmonger from Hulu Langat, Selangor, was arrested by the police in the wee hours of the morning on April 17, 2002, pursuant to s 73(1) of the ISA. On May 13, 2002, the respondent, through his lawyers, filed a notice of motion seeking, inter alia, an order that access to his lawyers be given pursuant to article 5(3) of the Federal Constitution (hereinafter referred to as "the Constitution") and further or in the alternative, that he be released. On June 11, 2002, the High Court heard the application in respect of access to lawyers and granted an order in terms thereof. The High Court ordered that the lawyers be allowed to meet with the respondent at 2.30 p.m. on June 12, 2002. That part of the application relating to habeas corpus was postponed to a later date. On June 12, 2002, the Minister issued a detention order under s 8 against the respondent.
On November 8, 2002, the habeas corpus application was heard. The High Court allowed it and ordered the release of the respondent. As I said before, it is against that order that the appellants have now appealed.
NATURE OF THE MOTION BEFORE THE COURT
It is, I think, essential to determine the thrust of the motion filed by the respondent. It is clear that at the material time when the motion was filed, the respondent was detained by the police under s 73 and the motion was directed at the police on the basis of that detention. It was only subsequently that the respondent was detained by the Minister under s 8 of the ISA. Not surprisingly, counsel for the appellants took umbrage; contending that it was quite improper to have cited the Minister in the said motion. Counsel took the view that the respondent ought to have filed a separate motion against his detention by the Minister. The point was raised by him in his preliminary objection before the learned judge but it was summarily rejected. The learned judge apparently held that the motion was sufficiently wide enough to cover a s 8 detention order and as such, he had jurisdiction to deal with it. Indeed, counsel for the respondent has gone further by stating that the parties had proceeded on the basis that the s 73 motion had been converted to one under s 8. This is reflected on p 4 in paragraph 5.4 of his outline submission which reads:
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On 14.6.2002, Mr. Kamaluddin Mohd Said, who appeared for the Appellants, informed counsel for the Respondent and the Court that the Minister has issued a detention order pursuant to section 8 of the ISA on 12.6.2002 effective from 13.6.2002. After some discussion with the Learned Judge on how to approach the matter, the Learned Judge directed that the application proceed as a section 8 habeas corpus application instead of the need to file a fresh habeas corpus application. Both the Appellant and the Respondent and the Learned Judge, during the course of the discussion proceeded on the basis that the Respondent was entitled to convert the section 73 habeas corpus application to a section 8 habeas corpus application. Parties therefore proceeded on that basis. The Learned Judge then fixed 16.7.2002 as a mention date for parties to file further affidavits. |
It is not at all clear from the judgment of the learned judge that there was an agreement to convert as alleged by counsel for the respondent. If there was, why then should counsel for the appellants continue to latch on to his preliminary objection on a subsequent date? (See paragraph 5.8 outline submission of counsel for the respondent). Such conduct clearly militated against the alleged agreement to convert. In any event, had there been one, the learned judge would have expressly said so in his judgment. As I said, he did not.
Counsel then raised the point that the Minister had subjected himself to the jurisdiction of the court when he defended the legality of his detention order by filing the relevant affidavit. Here, it has to be noted that the Minister had filed his affidavit consequent upon the decision of the learned judge in wanting to proceed to hear the complaint against the detention order issued under s 8. Clearly, there was a direction from the learned judge that the appellants had to file the relevant affidavits including one from the Minister. In the circumstances, given the stand taken by counsel for the appellants in his preliminary objection at the material time, it can reasonably be said that the Minister had little choice in filing the said affidavit. That being the position, it cannot be said that the Minister had submitted to the court's jurisdiction without qualification.
Now, counsel for the respondent has submitted that the course of action taken by the learned judge was perfectly in order. There is some indication that the learned judge proceeded to hear the s 8 motion on the basis that article 5 of the Constitution was stated in the recital. This is implicit on perusal of the notes of proceedings on pp 630 and 631 of the appeal record. In my view, this is a misconception. It is trite law that the remedy of habeas corpus is intended to facilitate the release of persons actually detained in unlawful custody. It is the fact of detention which gives the court its jurisdiction (see Bernard v Ford [1892] AC 326). The observation made by Choir Singh J in Re Onkar Shrian [1970] 1 MLJ 28 is particularly instructive. He said:
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Where the personal freedom of an individual is wrongly interfered with by another, the release of the former from illegal detention may be effected by habeas corpus. The illegal detention of a subject, that is a detention or imprisonment which is incapable of legal justification, is the basis of jurisdiction in habeas corpus. |
The learned judge also quoted with approval the following passage in Short & Mellor's Practice on the Crown Side, 2nd edn at p 309:
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The primary object of the writ is for the purpose of bringing the body into court, and therefore, if that is impossible, the writ ought not to issue. It should not be used punitively but only remedially. In R v Barnado [1892] AC 316, Lord Halsbury said that he could not agree to the proposition that if a court is satisfied that illegal detention has ceased before application for the writ has been made, nevertheless the writ might issue in order to vindicate the authority of the court against a person who has once, though not at the time of the issue of the writ, unlawfully detained another or wrongfully parted with the custody of another. In this the rest of the court agreed. |
In the result, Choir Singh J took the position that a writ of habeas corpus had to be addressed to the person or authority having actual physical custody of the person alleged to be detained illegally. That, in my view, represents a correct statement of the law. In a situation where the court finds it impossible to issue the writ because the person or authority no longer has custody of the detainee, it should not hear the application. Indeed, it has no jurisdiction to do so. This is precisely the position in the instant case. Here, the facts show that when the application came up for full argument before the court, the police no longer had custody of the respondent. Custody had been transferred to the Minister upon the issuance of a detention order under s 8 of the ISA. In the circumstances, it would have been appropriate for the respondent to file a fresh notice of motion for a writ against the detention order issued by the Minister. In the absence of such a motion, the court had embarked on a misconceived course of action in assuming jurisdiction.
THE OUSTER CLAUSE IN SECTION 8B OF THE INTERNAL SECURITY ACT 1960
I come next to the proposition raised by counsel for the appellants that the learned judge had failed to consider the operation of s 8B of the ISA which states:
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There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Act, save in regard to any question on compliance with any procedural requirement in this Act governing such act or decision. |
In countering this proposition, counsel for the respondent has raised two broad fronts. First, he makes the point that the ISA is a special law. It is a creature of article 149 of the Constitution which provides that any provision in any Act of Parliament whose recital satisfies article 149(1) is valid notwithstanding that the provision may be inconsistent with articles 5, 9, 10 or 13 of the Constitution. Article 149(1) reads:
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149. |
Legislation against subversion, action prejudicial to public order, etc
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It is counsel's contention that article 149, read strictly, only empowers Parliament to pass laws designed to stop or prevent the various purposes, enumerated therein but that s 8B of the ISA is not designed for any of the purposes stated and therefore unconstitutional.
There is no doubt that the ISA is a special piece of legislation that has its provenance in article 149 of the Constitution although upon restrictive terms i.e. that only provisions which are designed to stop or prevent the enumerated actions or purposes are allowed to be inconsistent with articles 5, 9, 10 or 13. The question for consideration is whether s 8B is such a provision. Quite clearly, the words "designed to stop or prevent that action" in article 149(1) are particularly significant. In my view, s 8B has to be examined in the context of article 149(1) as well as s 8(1) of the ISA which reads:
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8. |
Power to order detention or restriction of persons
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Under s 8, the Minister has been conferred powers of preventive detention. The powers can be said to be draconian in nature. They are obviously designed to stop or prevent subversive actions or actions prejudicial to public order or national security (see Raja Khalid [1988] 1 MLJ 182). And s 8B, being an ouster clause, has the effect of immunising (as I shall elaborate later) the powers of the Minister from judicial review. As such it plays an integral part within the whole scheme relating to the Minister's preventive powers and decisions made thereunder. In this sense, s 8B is intrinsically linked to s 8 thereby creating a combined effect in combating subversive actions or actions prejudicial to public order or national security. It falls squarely within the parameters of article 149(1) aforesaid. In the circumstances, s 8B is not an unconstitutional provision. On that score, I must disagree with counsel for the respondent.
Given the validity and constitutionality of s 8B, the next question for consideration is whether it can succeed in ousting the review jurisdiction of the court. In R Rama Chandran v Industrial Court of Malaysia [1997] 1 AMR 433, the Federal Court held as follows:
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It is clear law that appellate review jurisdiction is solely a creature of statute while supervisory review jurisdiction is the creature of the common law and is available in the exercise of the courts' inherent power but, I would hasten to add, its extent may be determined not merely by judicial development but also by legislative intervention. [emphasis added] |
So quite clearly. Parliament may legislate on the extent and scope of judicial review in particular situations. Indeed, Edgar Joseph Jr FCJ had a further occasion to deal with the effect of an ouster clause on the jurisdiction of the court. This was in Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 AMR 3329; [1999] 3 MLJ 1 (or the MPPP case) concerning s 29(3)(a) of the Industrial Relations Act 1967. Therein, he cited with approval the Supreme Court case of Enesty Sdn Bhd v Transport Workers Union [1980] 1 MLJ 18, in particular the observation of Mohamed Azmi SCJ who said:
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Since then, (the decision in Fire Bricks) legal opinion in England, particularly that of the House of Lords has not stood still. The suggestion of Lord Denning (in Pearlman) to discard the distinction between error of law which affects jurisdiction and one which does not and thereby widening the scope of certiorari notwithstanding the existence of an ouster clause has gained momentum. Lord Denning also referred to In re Racal Communications Ltd [1980] 2 All ER 364 and O'Reilly v Mackman [1982] 3 All ER 1124. |
From the passage above, nothing can be implied to exclude completely the effect of an ouster clause. Indeed, the position taken by Edgar Joseph Jr FCJ became clear in the later part of his judgment when he said this:
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We might as well add that it was Lord Diplock's view, expressed in Re Racal and in O'Reilly that it is a constitutional principle of the highest order that it is the High Court that determines the meaning of legislation and not any other entity, that Parliament must be unmistakably explicit if it is to give any such power to any other entity and this had been so decided by Anisminic .... It (Re Racal) was held by the majority that the ouster clause s 441(3) of the Companies Act 1948: 'The decision of the judge of the High Court .... on an application under this section shall not be appealable' was effective to exclude the power of the Court of Appeal to review the High Court judge's decision. |
It is interesting to note that in the recent case of Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah [1998] 3 AMR 2373; [1998] 3 CLJ 88, the Court of Appeal, presided by Gopal Sri Ram JCA, cited with approval the observation of Laws J in R v Lord Chancellor, ex parte Witham [1997] 2 All ER 779. I draw attention to that part of the observation which states:
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It seems to me, from all the authorities to which I have referred, that the common law has clearly given special weight to the citizen's right of access to the courts. It has been described as a constitutional right, though the cases do not explain what that means. In this whole argument, nothing to my mind has been shown to displace the proposition that the executive cannot in law abrogate the right of access to justice, unless it is specifically so permitted by Parliament; and this is the meaning of the constitutional right. But I must explain, as I have indicated I would, what in my view the law requires by such a permission. A statute may give the permission expressly; in that case, it would provide in terns that in defined circumstances the citizen may not enter the court door. |
From the authorities cited, it seems clear that judicial review, which is essentially a creature of the common law, can be excluded by statutory legislation if the words used are unmistakably explicit. And this is precisely the position taken by the Federal Court in Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2001] 3 AMR 2817 in construing the ouster clause in s 59A of the Sabah Immigration (Amendment) Act 1997 (Act A985) under the heading: "Exclusion of judicial review". Section 59A reads:
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59A. |
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The Federal Court held that the court's jurisdiction to review was ousted by s 59A on the cardinal principle that where the intention of Parliament was clearly expressed, the duty of the court was to give expression to that intention. Therein Tun Dzaiddin who delivered the judgment said, inter alia:
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The wider issue is whether statutory provisions of the type stipulated in s 59A can preclude the court from examining its powers of judicial review over the decision of public decision makers .... Secondly, in our view, s 59A is more elaborately expressed and more exclusionary in its scope. Whereas the repealed section provides that an order of the Minister, the director general or the state authority under the Act or any subsidiary legislation shall without prejudice to any provisions giving right to appeal to the Minister in respect of the order of the director general, be final and shall not be called in question in any court on any ground whatsoever, the language in the present s 59A is explicit with respect to the exclusion of the judicial review by any court of any act or decision made by the Minister, director general or the state authority under the Act except for non-compliance of any procedural requirement. Judicial review under the section is defined to include proceedings commenced by way of an application, writ or any other suit or action mentioned in paragraph (2) of s 59A. By deliberately spelling out that there shall be no judicial review by the court of any act or decision of the Minister or the decision-maker except for non-compliance of any procedural requirement, Parliament must have intended that the section is conclusive on the exclusion of judicial review under the Act. |
At this point, it may be appropriate to note that the pre-amended s 59A of the Sabah Immigration Act referred to in Sugumar Balakrishnan was very much similar in terms to s 9(6) of the Industrial Relations Act 1967 which came up for consideration by the Supreme Court in Tanjong Jaga Sdn Bhd v Minister of Labour & Manpower [1987] 1 MLJ 124. Therein, Abdoolcader FCJ observed that s 9(6) which postulated a privative clause was ineffective as regards jurisdictional error. (See also Menteri Sumber Manusia v Association of Bank Officers, Peninsular Malaysia [1999] 2 AMR 1837; [1999] 2 MLJ 337).
Given the established authorities referred to, it cannot be said that the Federal Court in Sugumar Balakrishnan has broken any new ground in determining the extent and scope of ouster clauses. There is no paradigm shift. It has followed entrenched principles which can effectively be summed up as follows: 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. Clearly, the intention of Parliament is to be garnered from the wordings of the ouster clause.
Now, s 8B of the ISA is almost identical to s 59A of the Sabah Immigration Act. In my view, the words in s 8B are explicit. They are clear and precise. They are exclusionary in nature and effect. The intention of Parliament is unmistakably obvious i.e. that the jurisdiction of the court is to be ousted in terms stated in s 8B. In the premises, adopting the test taken by the Federal Court in Sugumar Balakrishnan, the court must give expression to Parliament's intention. Section 8B is therefore intended to exclude judicial review by the court of any act done or any decision made by the Minister in the exercise of his discretionary power in accordance with the ISA except as regards any question on compliance with any procedural requirement relating to the act or decision in question.
Given the proper interpretation to be placed on s 8B what is the position in the instant case? Here, there is evidence that the impugned order was issued by the relevant Minister. There is also evidence that he had issued it in the exercise of his discretionary power under or in accordance with s 8(1) of the ISA. Furthermore, evidence shows that all the necessary procedural requirements had been complied with by the Minister in issuing the detention order. Indeed, the respondent made no complaint on this score.
MATTERS OF NATIONAL SECURITY
Now, matters of national security have always been considered by the courts to have a peculiar texture. They have called for special treatment. In such matters, H.T. Ong CJM in Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129 appears to adopt the more realistic approach taken by the English authorities. In dealing with the ISA in the context of article 149 of the Constitution, he said this:
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Under article 149 any provision in the Internal Security Act designed against action prejudicial to national security is declared 'valid notwithstanding that it is inconsistent with any of the provisions of article 5, 9 or 10', namely, the fundamental liberties. This, of course, means sanction of encroachments on the rule of law, justified in the national interest. Under the circumstances, I think it must be frankly acknowledged that a perfect decision is in most cases an unattainable ideal. Once this fact, is appreciated it seems to me that the issues raised in this appeal require a realistic approach rather than as an exercise in semantics .... Perusing both English and Indian authorities has been no small task, but at the end of it all, I would sum up by saying that, in my humble opinion, English courts take a more realistic view of things, while Indian judges, for whom I have the highest respect, impress me as indefatigable idealists seeking valiantly to reconcile the irreconcilable whenever good conscience is pricked by an abuse of executive powers. |
I think it is fair to say that his Lordship's preference for English authorities over Indian ones could be confined to the context of the issues before him. These of course relate essentially to detention orders issued by the Minister under the ISA. In matters of preventive detention relating to national security, the judges are the executive. That proposition was firmly laid down by Lord Fraser in Council of Service Unions v Minister for Civil Service [1983] 1 AC 374 (or the CCSU case) wherein he said:
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Those who are responsible for the national security must be the sole judge of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public. |
This might well have moulded the perception of the Federal Court in R Rama Chandran, supra, wherein Edgar Joseph JR FCJ said that where policy considerations were involved in administrative decisions and courts did not possess knowledge of the policy considerations which underlay such decisions, courts ought not to review them. His Lordship reiterated the same stand in the MPPP case. In Sugumar Balakrishnan, Gopal Sri Ram, in the Court of Appeal, I think, made a pertinent observation. After a lengthy discussion on the various aspects of judicial review, he said this:
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Nothing we have said thus far is to be taken as affecting cases that involve either national security or national interest. It is obvious that special consideration must be given to those cases as a matter of judicial policy .... because the subject-matter in respect of which judicial review is sought is one that is best left to the executive arm of the government to deal with according to the exigencies of the particular case and based upon information that is exclusively available to it. |
It seems apparent from these cases that where matters of national security and public order are involved, the court should not intervene byway of judicial review or be hesitant in doing so as these are matters especially within the preserve of the executive, involving as they invariably do, policy considerations and the like.
If however, the court found itself compelled to intervene, as it had done in the instant case, notwithstanding the ouster clause in s 8B or the cautionary advice I mentioned a moment ago, it must necessarily resolve the important question of whether the objective or the subjective test applies to the exercise of the Minister's discretion under s 8(1) of the ISA. In Malaysia, that question has been answered by the Federal Court in Karam Singh, supra, consisting of a strong panel of eminent judges including H.T. Ong CJM and Suffian FCJ (as he then was).
Suffian FCJ who wrote the main judgment said, inter alia:
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.... When the power to issue a detention order has been made to depend on the existence of a state of mind in the detaining authority, which is purely a subjective condition, so as to exclude a judicial inquiry into the sufficiency of the grounds to justify the detention, it would be wholly inconsistent to hold that it is open to the court to examine the sufficiency of the same grounds to enable the person detained to make a representation .... Our law is quite different from that of India. First, as already stated, the power of detention is here given to the highest authority in the land, acting on the advice of the Ministers responsible to and accountable in Parliament, not to mere officials. Secondly, as already stated, here detention, in order to be lawful, must be in accordance with law, not as in India when it must be in accordance with procedure established by law .... Finally, in my opinion, it is not for a court of law to pronounce on the sufficiency, relevancy or otherwise of the allegations of fact furnished to him. The discretion whether or not the appellant should be detained is placed in the hands of the Yang di-Pertuan Agong acting on Cabinet advice. Whether or not the facts on which the order of detention is to be based are sufficient or relevant, is a matter to be decided solely by the executive. In making their decision, they have complete discretion and it is not for a court of law to question the sufficiency or relevance of these allegations of fact. |
And Gill FCJ echoed the same sentiments when he said:
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There is ample authority for the proposition that it is not the function of the court to act as a court of appeal from the discretionary decision of the Cabinet and to inquire into the grounds upon which they came to the belief that it was necessary or desirable in the interests of the security of Malaysia to hold the appellant in detention. |
Finally, Ali FCJ, another member of the distinguished panel quite appropriately, summed up the thrust of the court's view. He said:
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.... that in habeas corpus proceedings such as this, the court is not concerned with the truthfulness or otherwise of the allegations because the question whether it is necessary that a person be detained under s 8(1)(a) of the Internal Security Act 1960 is a matter for the personal or subjective satisfaction of the executive authority. |
In my view, the pronouncements made by their Lordships in Karam Singh apply with equal force to the provisions of s 8 of the current ISA. Clearly therefore, in determining whether or not to issue the detention order under the said section, a subjective judgment is accorded to the Minister. The position is reinforced by s 16 of the ISA which stipulates:
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Nothing in this Chapter or in any rules made thereunder shall require the Minister or any member of an Advisory Board or any public servant to disclose facts or to produce documents which he considers it to be against the national interest to disclose or produce. |
The "Chapter" cited above refers to Chapter II of Part II of the ISA which covers the Minister's powers of preventive detention under s 8. Under the said section, the Minister is entitled not to disclose facts or produce documents if he considers it to be against national interest. Such non-disclosure must have the added effect of making the test under s 8 a subjective one.
It is in the light of the principles enunciated in Karam Singh that the present case ought to be examined. Here, there is evidence that the Minister had, when issuing the detention order, relied on the police report. This is reflected in his affidavit. Counsel for the respondent in paragraph 32.3 of his outline submission stated that the Minister had relied wholly on this report and that he was satisfied that the activities of the respondent would pose a threat to the security of the nation. From this, it is immediately clear that the said report related to matters of national security which involved the respondent. The Minister was satisfied that the activities of the respondent threatened national security. That satisfaction was a subjective one. From that perspective, there would be no violation of the principles established in Karam Singh.
In my view, these are important considerations which the learned judge ought to have taken into account. His failure to do so had an erroneous impact upon his conclusion that the detention order issued by the Minister under s 8 of the ISA was tainted. That conclusion is clearly misconceived.
WHETHER LEGALITY OR OTHERWISE OF A SECTION 8 DETENTION HINGES ON A SECTION 73 DETENTION
The final proposition advanced by counsel for the appellants relates to the alleged misdirection by the learned judge in holding that the legality or illegality (as the case may be) of a s 8 detention hinges on the detention under s 73 of the ISA. Here, counsel has submitted that any illegality or irregularity in the detention order under s 73 is quite irrelevant in determining the legality of a s 8 detention order. He contends that as the detention order under s 73 has been superceded by the order of the Minister under s 8, the court should not have proceeded to hear the motion which was based on the complaint against the police. According to him, a separate motion for writ of habeas corpus ought to have been made by the respondent, citing in support the observation of Steve L.K. Shim CJ (Sabah & Sarawak) in Mohamed Ezam v Ketua Polis Negara (2002) 4 AMR 4033 which reads:
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However, as the undisputed facts show that the appellants .... have now been detained by order of the Minister under s 8 of the Act, the issue of whether or not to grant the writ of habeas corpus for their release from current detention does not concern us. That is a matter of different exercise. |
Quite clearly, the submissions are aimed essentially at the concluding part of the judgment of the learned judge when he said as follows:
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With some not too careful officer having blemished the substantive procedural aspect of the detention exercise, it goes without saying that the eventual order issued by the Minister, must similarly be tainted (Nik Adli Nik Abdul Aziz v Ketua Polis Negara [2001] 4 AMR 4690) If the roots are bad surely the fruits too will be bad. Some say that if the roots are bad, there will be no trees let alone fruits. |
In countering the submissions, counsel for the respondent contends that the Minister had in fact based his s 8 detention order solely on the basis of the report made by the police pursuant to s 73(3) and was correct in holding that the said s 8 detention order was tainted by the impropriety of the s 73 detention. According to him, since the report was the result of the s 73 detention which was bad, (indicating "the root"), therefore the s 8 detention order must necessarily be bad (indicating "the fruit"). (See paragraphs 32.3 and 32.4 of his outline submission).
I must confess I am unable to comprehend the rationale behind the learned judge's statement that "if the roots are bad, surely the fruits too will be bad." If it is meant to be an a axiomatic proposition for all purposes, then it cannot possibly be true because one can envisage many situations which do not necessarily fall into such a dogmatic characterization especially where human conduct and behaviour is concerned.. Quite conceivably, as counsel for the respondent has submitted, the expression is meant to support the proposition that the illegality of the s 73 detention order had adversely affected the detention order issued by the Minister under s 8 or conversely, that the s 8 detention order was tainted as a result of the illegality or irregularity of the s 73 detention order. If that be the case, then it would appear that the learned judge had failed to examine the factual circumstances in the context of the principles enunciated by the Federal Court in Karam Singh. It is not disputed that there is affidavit evidence that the Minister, on the basis of the report submitted to him, was satisfied that the activities of the respondent were a threat to the security of the country. Whether or not the allegations in the said report on which the s 8 detention order was based, were sufficient or relevant, was a matter to be decided solely by the Minister. In this case, he was satisfied, on a subjective basis, that the respondent's activities had threatened national security. It was therefore not open to the court to examine the sufficiency or relevance of the allegations contained in the report. None of these considerations appear in the judgment of the learned judge.
CONCLUSION
In the circumstances and for the reasons stated, I find sufficient merits in the appeal. Accordingly, the appeal is allowed. My learned sister Siti Norma Yaakob FCJ has seen this judgment in draft and has expressed agreement with it. As Mohamed Dzaiddin Abdullah KHN has now retired, this judgment is given pursuant to s 78 of the Courts of Judicature Act 1964.
Cases
Bernard v Ford [1892] AC 326; Council of Service Unions v Minister for Civil Service [1985] 1 AC 374; Enesty Sdn Bhd v Transport Workers Union [1986] 1 MLJ 18, SC; Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129, FC; Majlis Perbandaran Pulau Pinang v Syarikat Berkerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 AMR 3529; [1999] 3 MLJ 1, FC; Menteri Sumber Manusia v Association of Bank Officers, Peninsular Malaysia [1999] 2 AMR 1837; [1999] 2 MLJ 337, FC; Mohamed Ezam Mohd Noor v Ketua Polis Negara (2002) 4 AMR 4053; Onkar Shrian, Re [1970] 1 MLJ 28; Pihak Berkuasa Negeri Sabah v Sugumar Balakrishnan [2001] 3 AMR 2817, FC; R v Lord Chancellor, ex pane Witham [1997] 2 All ER 779; Rama Chandran, R v Industrial Court of Malaysia [1997] 1 AMR 433, FC; Sugumar Balakrishnan v Pengarah Imigresen Negeri Sabah [1998] 3 AMR 2373; [1998] 3 CLJ 85, CA; Raja Khalid, Re [1988] 1 MLJ 182; Tanjong Jaga Sdn Bhd v Minister of Labour & Manpower [1987] 1 MLJ 124, SC
Legislations
Courts of Judicature Act 1964: s.78
Federal Constitution: Art.5, Art.9, Art.10, Art.13, Art.149
Industrial Relations Act 1967: s.9, s.29
Internal Security Act 1960: s.8, s.8B, s.16, s.73, Chapter II of Part II
Sabah Immigration (Amendment) Act 1997: s.59A
Authors and other references
Short & Mellor's Practice on the Crown Side, 2nd edn
Representations
Mohd Yusof Zainal Abiden, Tun Abdul Majid Tun Hamzah, Kamaludin Md Said & Nordin Hassan (AG's Chamber) for appellants
Sulaiman Abdullah, Sivarasa Rasiah, Ranjit Singh, Edmund Bon and KY Ho (Saiful Kasri) for respondent
Notes:
This decision is also reported at [2003] 6 AMR 497
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