Theresa Lim

- vs -

Inspector General of Police

Judgment

Salleh Abas LP

(delivering the judgment of the court)

1. In these appeals (Appeals No 86, 87 and 92 of 1987), the appellants were arrested by three separate police officers at three different places on the same date, i.e. 28 October 1987 pursuant to the police power of arrest under s 73 of the ISA. At the outset of the appeals, it was agreed between counsel for the appellants and the Attorney General that the appellants were each kept in separate places and no counsel were allowed to see them.

2. It is the contention of the appellants that their arrest was illegal and therefore habeas corpus should be issued by the court for their release. There are several grounds put forward on their behalf by the counsel, contending that their arrest and detention under s 73 of the ISA are illegal. The counsel’s submissions are complementary to one another and were presented to the court in the following order.

3. Mr. Cyrus Das, who appeared for the appellants in Appeals No 86 and 92 of 1987, maintained that s 73 of ISA is unconstitutional since it does not comply with the requirement of Article 151. The basis of his submission is that the ISA has made two types of preventive detentions: the first is the preventive detention by the police under s 73 and this is what he calls investigative preventive detention, and the second preventive detention pursuant to ministerial order under s 8. Since the provisions regarding investigative preventive detention do not comply with the constitutional requirements of Article 151(1), namely provision for informing a detainee of the grounds of his detention and allegations of facts constituting the grounds, s 73 is therefore void and as such the arrest and detention of the appellants are illegal.

4. The second part of Mr. Cyrus Das’ submission is that Article 149(1) limits the application of the ISA only to communist insurgency and subversion. He contended that any provision of the law passed under the authority of Article 149, which is designed to stop or prevent action which has been taken or threatened by a substantial body of persons, must be limited in its application to the prevention and stoppage of ‘that action’ only and having regard to para 174 of the Reid Commission Report (1956), and to the speeches made by the late Prime Minister Tun Abdul Razak in Parliament when moving the motion to pass this Act, “that action” must refer to communist insurgency and subversion.

5. Mr. Sri Ram, the second counsel for both the appellants in Appeals No 86 and 92 of 1987, submitted to the court that the police power under s 73 to arrest and detain a person pending enquiry is open to judicial examination, the test he submitted, being an objective test. He quoted a number of authorities from both local and foreign jurisdiction; and in particular the decisions of the High Court and the Federal Court in Merdeka University ([1981] 2 MLJ 356 and  [1982] 2 MLJ 243 respectively) to show that where similar verbal formulae, namely the authority “having reason to believe” or “having reasonable suspicion” or “being satisfied on the ground of national interest”, and the like expressions are used, the opinion of the authority claiming to have such reason, suspicion or satisfaction must be open to judicial scrutiny. He also submitted that although the ISA may be held to be valid despite being contrary to the provisions of fundamental liberties, there is nothing in s 73 of the ISA which is inconsistent with Article 5(2). Consequently, the provision of Article 5(2) must be read into s 73. This means that the court must hold an inquiry into the complaint of the appellants in order to determine the lawfulness of their arrest and detention.

6. Mr. Nijar, counsel for the appellant in Appeal No 87 of 1987, supported the submission of Mr. Sri Ram on the applicability of Article 5 and argued that, in addition to right of an inquiry by the court, the appellants also have a right to be informed of the grounds of their arrest and the right to consult and to be defended by a legal practitioner of their choice. If these rights, or any one of them, are denied, the arrest and detention would be held to be illegal.

7. His final submission is that because the appellants were each held in separate places this would amount to a solitary confinement, and that being the case, the detention ceases to be preventive and becomes punitive and consequently becomes illegal in the sense that it is not authorized by s 73 and therefore habeas corpus should be issued.

8. In reply to these submission, both the Attorney General and the Senior Federal Counsel, Mr. E Selventhiranathan, submitted that none of the submissions could be accepted as a matter of law and also as a matter of fact relating to the present appeals.

9. Looking at the arguments of both sides, the appellants and the respondents, we found that the arguments tend to be pedantic, circuitous and at times inconsistent with earlier propositions that they are making. There can be no doubt that a great deal of research has gone into the making of these submissions and we must congratulate counsel for their industry and their efforts and tenacity in presenting the various contentions.

10. For ourselves, we must approach these appeals in the broad principles of the constitutional provisions and also the provisions of the ISA and in particular to those relating to preventive detention. We accept the approach to the legality and constitutionality of the ISA as so admirably and cogently stated by Lord Diplock in Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50, and that is: we have to be guided by the clear words of the Constitution and the statute. We are not impressed by the argument that s 73 of the ISA is invalid because it does not comply with the mandatory provision of Article 151 cl (1) nor are we persuaded to accept that the scope of the ISA, and in particular, preventive detention, should be limited to those involved in communist insurgency and subversion only. The broad and practical approach that we take in this matter is to see the scheme of the legislation both under the Constitution and the ISA. There can be no doubt that the ISA is a special law, however unpopular it may be, passed under the authority of Article 149.

11. Looking at the provision relating to preventive detention, we cannot see how the police power of arrest and detention under s 73 could be separated from the ministerial power to issue an order of detention under s 8. We are of the opinion that there is only one preventive detention and that is based on the order to be made by the Minister under s 8. However, the Minister will not be in a position to make that order, unless information and evidence are brought before him, and, for this purpose, the police is entrusted by the Act to carry out the necessary investigation and, pending inquiries, to arrest and detain a person in respect of whom the police has reason to believe that there exists grounds which would justify the detention of such person under s 8. There can be no running away from the fact that the police power under s 73 is a step towards the ministerial power of issuing an order of detention under s 8, which the Attorney General referred to as the initial stage in the process leading to preventive detention. In fact during the course of the argument, Mr. Cyrus Das conceded this. That being the case, the conditions or the restrictions laid down in Article 151 cl (1), in our view, would come into play only after the Minister’s order of preventive detention has been executed. At the initial stage, Article 151 cl (1) has no application. After the order has been issued, the grounds of preventive detention together with allegations of fact must be given to a detainee and opportunity of making representations against the order must also be given. The representation will not be heard by a court of law, but by a specially constituted body known as the Advisory Board, consisting of a Chairman, who is a person qualified to be a judge of the High Court or Supreme Court, and two other members, appointed by the Yang Di-Pertuan Agong. It is clear from these provisions of the Constitution, and of the ISA, that the intention of the framers of the Constitution is that judges in the matter of preventive detentions relating to the security of the Federation are the executive. This is further supported by cl (3) of Article 151, which says that the Article does not impose an obligation on “any authority” — a term much wider than “the authority on whose order any person is detained” — to disclosure would in its opinion be against the national interest. The authority here, in our view, includes those with powers dealing with preventive detention, not only the Minister and his staff but also the Board of Review and its staff and also the police who are involved in arresting but also the Board of Review and its staff and detaining a person pending the enquiry under s 73 of the Act. “Pending enquiries” under s 73 has not been given any statutory definition, but, it must, in our view, relate to police investigation with a view to reporting results of the enquiry to the Minister. This is clear from sub-s (3) proviso (c) of s 73, where the Inspector General of Police is required to report the circumstances of the arrest and detention to the Minister.

12. To show further that evidence or information relating to arrests and detentions, either at the initial stage, or in pursuant to a ministerial order, is excluded from public disclosure is s 16, which says that the Minister, or any member of an Advisory Board, or any public servant shall not be required to disclose facts or to produce documents which he considers to be against the national interest to disclose. Mr. Sri Ram contended that this section is only confined to the provision of “this chapter”, and since the chapter under which s 16 is enacted is preventive detention pursuant to a ministerial order under s 8, it therefore cannot apply to the arrest at the initial stage pursuant to police power under s 73. This argument could only be right if we accept that there are two preventive detentions. We do not accept that argument. We regard that arrest and detention by the police and detention pursuant to a ministerial order or further detention after the matter has been considered by the Advisory Board as one continuous process beginning with the initial arrest and detention under s 73. We accept that the initial arrest and detention may or may not result in the issuing of the ministerial order of detention under s 8, but nevertheless, it is within one scheme of the preventive detention legislation.

13. The next argument is that in view of Article 149, the ISA should be limited to communist insurgencies alone. To support this proposition, we were invited to refer to para 174 of the Reid Commission Report and to the speeches made by the late Prime Minister Tun Abdul Razak when moving the motion in Parliament to pass the Internal Security Bill. There had been some arguments as to whether or not it is proper for the court to advert to these documents. In our view, there is no hard and fast rule about this, and certainly the courts in this country, as well as the United Kingdom, admit such references but it is clear from the practice of the court that such reference is only to appreciate the legislative history of an Act, and it cannot be regarded as the basis or the determining factor for interpreting the Act or any provision of the Act. If we do that, the court will cease to be the ultimate interpreters of law because in the end what is law will be guided by what the politicians said in Parliament and indeed this has been asserted recently. For this purpose, we would like to refer to a statement by Cumming-Bruce LJ in R v Hosenball [1977] 1 WLR 767, 787–788 at pp 787–788.

    There are two other grounds relied upon by the appellant. One is founded upon a statement made by the Secretary of State for Home Affairs on the floor of the House of Commons to which we have been referred. It was suggested, as I understand it, that such rights as Mr. Hosenball might have having regard to the scrutiny of the Act might be enlarged by the statement of the Secretary of State in the House of Commons. I cannot accept as a matter of constitutional law and principle that where the rights of the subject or of a resident have been dealt with in an Act of Parliament a statement made by a minister in Parliament can have the effect of enlarging those statutory rights. The danger of assenting to such a doctrine is obvious. If a minister can enlarge the rights of a subject as laid down in an Act of Parliament by a statement on the floor of the House, it is but a short step to say that it is constitutional for a minister to restrict the rights of a subject by making a statement on the floor of the House. By our constitution, it is Acts of Parliament and not the acts of ministers, save when authorized by Act of Parliament or under the prerogative, that define the rights of subjects or of residents.

14. The expression “that action” in our review has no consequence to determine or limit the scope of the Act. The Act is valid and from the wording of the provision of the Act there is nothing to show that it is restricted to communist activities.

15. We now refer to the objective test submitted by Mr. Sri Ram. The submission is based on the dissenting speech of Lord Atkin in Liversidge v Anderson [1942] AC 206 speeches by Lord Diplock and Lord Scarman in R v Inland Revenue Commissioners, ex parte Rossminster [1980] AC 374 calling for adoption of Lord Atkin’s dissenting speech and abandonment of the speeches of the majority of the Law Lords, the Privy Council decision in Nakkuda Ali v Jayaratne [1951] AC 66, Merdeka University v Government of Malaysia [1982] 2 MLJ 243, 247 and some other decisions both from England and other Commonwealth countries. Needless to say here that our broad approach is that the ISA is a peculiar law, and it is peculiar to our country. And it is on the basis of the provisions of this Act that we have to decide whether in the opinion of the arresting police officer that he has reason to believe is open to judicial examination. This submission was earlier submitted to this court in Inspector General of Police v Tan Sri Raja Khalid [1988] 1 MLJ 182, 184 by Mr. Sri Ram and we have rejected that submission although we upheld the release of the detainee in that case because the arresting police officer had sworn an affidavit to the effect that the arrest and detention related to allegations of bank fraud which is a criminal offence. However, we would like to say that the Privy Council decision in Nakkuda Ali [1951] AC 66 did not relate to matters relating to national security. It was only relating to the right of being heard to be given to a textile licensee before his licence could be cancelled.

16. Our court’s decisions in Merdeka University [1982] 2 MLJ 243, 247 relates to the satisfaction of the Yang Di-pertuan Agong in regard to the establishment of an institution of higher learning on the basis of national interest, and, in dealing with that case, the court was able to proceed to review the matter because a great deal of evidence was presented by no less a person than the Deputy Prime Minister himself who gave extensive evidence in court. Thus, whatever these decisions have decided and developments of the law elsewhere, especially in England, relating to the fairness of the process of executive decision-making, in the context of our case we are constrained by the following two propositions.

17. First, we agree with the opinion of the Chief Justice that national interest is wider than national security and in fact, in our view, national interest is the same as public interest, but national security is a very different kind of interest altogether. This is clearly recognized by the House of Lords in Chandler v DPP [1964] AC 763 at p 790:

    The question more frequently arises as to what is and what is not in the public interest. I do not subscribe to the view that the government or a minister must always or even as a general rule use the last word about that but here we are dealing with a very special matter — interfering with the prohibited place which Whetherfield was.

18. Secondly, s 16 of the ISA and Article 151 cl (3) clearly authorize the executive not to disclose any information relating to national security. In that event, the court could only be limited to what has been presented before it. The police officers who arrested the detainees have sworn affidavits to say that they have information which made them come to the opinion that they have reason to believe that there were grounds for detaining the appellants under s 8 of the Act, and that they are not prepared to disclose this information. Is the court then to declare that the arrest and detention are illegal for no other reason that these officers are not prepared to disclose the information? If there has been no provision of cl (3) of Article 151 and s 16, the matter, of course, could be decided by the court, whether it was really in the interest of the security that such information could be withheld. Thus, in our view no inference of illegality could be imposed on the arrest in the circumstances. It is therefore up to the appellants to show that the arrest and detention are illegal. In other words, even if the test under s 73 is objective, nothing much can be done, in view of the lack of evidence and it is in this context that the court expressed the view that the test is subjective. The expression “subjective and objective tests” is merely a label to show the results of the court’s attitude as to whether or not it will or it will not exercise its jurisdiction. It is descriptive of the result of the court’s decision elicited from factual situations reflecting judicial attitude rather than a starting point or a legal element from which legal result could be arrived at. In this case, whether the objective or subjective test is applicable, it is clear that the court will not be in a position to review the fairness of the decision-making process by the police and the Minister because of the lack of evidence since the Constitution and the law protect them from disclosing any information and materials in their possession upon which they based their decision. Thus, it is more appropriately described as a subjective test.

19. Next, we must turn to the submission of Mr. Nijar.

20. On the allegation by Mr. Nijar that the detainees were kept in solitary confinement, there is simply insufficient evidence for us to say that the fact (as agreed between the parties) that the detainees were kept in separate rooms amounted to solitary confinement and therefore punitive detention.

21. When should a detainee arrested under s 73 of the Internal Security Act be allowed to exercise his right under Article 5(3) of the Constitution to consult a counsel of his choice? We would reiterate what was held by the Federal Court in Ooi Ah Phua v Officer-in-Charge, Criminal Investigations, Kedah/Perlis [1975] 2 MLJ 198. In other words, the matter should best be left to the good judgment of the authority as and when such right might not interfere with police investigation. To show breach of Article 5(3), an applicant has to show that the police has deliberately and with bad faith obstructed a detainee from exercising his right under the Article.

22. In the circumstance of the case, having regard to the grounds we have set out earlier, the appeals should be dismissed. But we are not unmindful of our grave responsibility to be between the executive and citizens. We would like to reiterate that we do not abdicate our function and shy away from our responsibilities. It would be very much to be regretted and indeed it would be most unfortunate if the results of these appeals were to be understood as an abdication of our duties. This misunderstanding may arise in view of so many recent adverse comments against the judiciary and the legal system of this country. The court must be neutral and independent. When the law is clear, we must declare what the law is.

23. In a proceeding like the present one where both the legislation and the executive act under it are challenged, our duties are not to substitute our decision for that of the executive. We are only concerned with the procedural aspects of the exercise of executive discretion. We have no interest, nor desire, to embark upon trespassing into the domains of the legislature or the executive. In a democratic society in which the government is not absolute but a limited one, there is a duty on the part of the executive to act with fairness and follow a fair procedure. Since in these appeals, the law is clear, despite the fact that it is much criticized both at home and abroad, our decision cannot be otherwise that what we have said earlier. We made this observation because we feel that we owe a duty to the public to put our position on record in view of so many adverse comments made against us.

24. The appeals are therefore dismissed.

Cases

Teh Cheng Poh v Public Prosecutor [1979] 1 MLJ 50; Reg v Home Secretary, ex parte Hosenball [1977] 1 WLR 767; Liversidge v Anderson [1942] AC 206; Reg v Inland Revenue Commissioners, ex parte Rossminster [1980] AC 374; Nakkuda Ali v Jayaratne [1951] AC 66; Merdeka University Bhd v Government of Malaysia [1982] 2 MLJ 243; Inspector General of Police v Tan Sri Raja Khalid bin Raja Harun [1988] 1 MLJ 182; Chandler v Director of Public Prosecutions [1964] AC 763; Ooi Ah Phua v Officer-in-charge Criminal Investigations [1975] 2 MLJ 198

Authors and other references

Reid Commission Report

Representations

G Sri Ram (Cyrus Das, George Varghese and S Rasiah with him) for the appellants in Criminal Appeals Nos. 86/87 and 92/87.

GS Nijar (Mohideen A Kader, T Rajamoorthy and Y N Ngeow with him) for the appellants in Criminal Appeal No 87/87.

Tan Sri Abu Talib Othman, Attorney General, Malaysia (T Selventhiranathan, Senior Federal Counsel, with him) for the respondents.