3.4.1 Making the right available
(a) Representations before the Advisory Board
Article 151(1)(a) of both the Malaysian and Singaporean Constitution provides that the detainee shall be given the opportunity to make representations against the detention order “as soon as may be”. Further, 151(1)(b) of the Malaysian Constitution provides that no citizens shall continue to be detained under that law or ordinance unless an advisory board has considered any representations made by him under paragraph (a) and made recommendations thereon to the Yang di-Pertuan Agong (the King) within three months of receiving such representations, or within such longer period as the Yang di-Pertuan Agong may allow. Whereas 151(1)(b) of the Singaporean Constitution provides that no citizen shall be detained for a period exceeding 3 months unless as advisory board has considered the representations made.
Therefore, while the representations to the advisory board must be made “as soon as may be”, the Singaporean Constitution provides that it must be made within 3 months from the detention . In Lee Mau Seng’s case , it was held that “…art 151 does not prohibit an order of detention from specifying that the citizen therein named is to be detained for a period exceeding three months. Article 151(1)(b) makes the continued detention of the named citizen after three months unlawful unless its requirements have been complied with” .
Section 11 of the MISA and the SISA also provides that all persons detained under section 8 “shall be entitled to make representations against the order to an Advisory Board”.
(b) Judicial Review
Section 365(1)(b) of the Malaysian Criminal Procedure Code provides that the “High Court may whenever it thinks fit direct that any person who is alleged to be illegally or improperly detained in public or private custody within the limits of the Federation, be set at liberty”.
There is no equivalent provision in the Singaporean Criminal Procedure Code. However, section 5 of the same provides that in the event of a lacuna, the criminal procedure law in England shall apply as long as it does not conflict and is not inconsistent with the Singaporean law. In fact, the Singaporean Court of Appeal made many references to the UK Habeas Corpus Act 1816 in the case of Chng Suan Tze v. Minister of Home Affairs where the application for habeas corpus was allowed.
Article 5(2) of both the Malaysian and Singaporean Constitutions provides that “where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall inquire into the complaint and, unless satisfied that the detention is lawful shall order him to be produced before the court and release him” .
The case of Sejahratul Dursina @ Chomel bte Abdullah v Kerajaan Malaysia implied that an application for habeas corpus can be made on behalf of the detainee.
It is submitted that the right has been made available in the Constitutions and the legislations.
3.4.2 Proceedings must be before a court of law
(a) Proceedings before the Advisory Board
It is clear that the Advisory Board is not a court. All the Advisory Board is empowered to do is to hear the representations and make recommendations . It therefore does not have any judicial character, lacks jurisdiction to decide on the lawfulness of the detention and is powerless to order the release of the detainee. It cannot be considered as a court of law.
Furthermore, section 12(2) of the SISA provides that the Advisory Board will make recommendations to the president who in turn may give the minister such directions as he thinks fit. At the end of the day, it is the president himself who will make the decision regarding his (the president’s) own satisfaction in section 8! Surely this goes against the principle of natural justice nemo debet esse judex in propria sua causa where no one is to be judged in his own case.
(b) Judicial Review in Malaysia – pre1989 amendments
As for the judicial review proceedings, it is taken before a court of law with judicial character. The court has the power and indeed have on occasions ordered the release of the detainee upon finding the detention to be unlawful .
(i) A guaranteed right
The right of a detainee to judicial review of his detention, specifically an application for habeas corpus was discussed in Yeap Hock Seng v Minister of Home Affairs . In that case, the detainee was detained under section 4(1) of the EPOPCO, a provision similar to section 8 of the MISA . The Senior Federal Counsel argued that an application for habeas corpus at that stage was premature as the detainee had the right under the EPOPCO to make representations to the Advisory Board.
Abdoolcader J disagreed and held as follows:-
The court must never, in my view, lose sight of the fact that a detention order made under section 4(1) of the Ordinance results in the deprivation of freedom without trial and constitutes a serious transgression upon the fundamental right of liberty of the person. Habeas corpus is a high prerogative writ of summary character for the enforcement of this cherished civil right of personal liberty and entitles the subject of detention to a judicial determination that the administrative order adduced as warrant for the detention is legally valid, in the sense that it is pursuant to valid statutory authority, and to test whether the detention proceedings are …a mere sham, nothing but an empty form. The grant of habeas corpus is as of right and not in the discretion of the court …”
(ii) Burden of proof
As for the burden of proof, the learned Judge held that the State has the burden to show lawful justification for the detention. This can be done by relying on the detention order made in exercise of a valid legal power. Once this burden has been discharged, the onus lay on the detainee to show that such power had been exercised mala fide or improperly .
(iii) Justiciability of minister’s discretion
An example of when the Minister’s powers were used improperly is the case of Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia where it was argued that the executive had not adequately applied its mind to the desirability of detaining the detainee .
Another example is the case of Minister for Home Affairs v Jamaluddin bin Othman . The detainee was held on the ground that he was involved in some programme to propagate Christianity amongst Malays. The allegation of facts showed that he participated in meetings and seminars and had converted six Malays. The High Court Judge in allowing the application held that the MISA does not override the right to freedom of religion contained in Article 11 of the Federal Constitution. The Supreme Court affirmed the High Court’s decision and was of the view that the acts alleged were not sufficient to be regarded as a threat to the security of the country.
However, the same cannot be said about the subjective decision of the Minister. The learned Judge in Yeap Hock Seng’s case conceded that it is “settled law that the subjective determination of the Minister is not justiciable. The courts have consistently declined to review the exercise of ministerial discretion when its validity is impugned in habeas corpus proceedings (Liversidge v Anderson  AC 206; Greene v Secretary of State for Home Affairs  AC 284. The court cannot be invited to undertake an investigation into the sufficiency of the matters upon which the satisfaction of the Minister purports to be grounded but can examine the grounds disclosed by the Minister to see they are relevant to the object which the Ordinance prescribes.”
The Supreme Court in Minister for Home Affairs, Malaysia v Karpal Singh held that “…whilst the grounds of detention stated in the detention order are open to challenge or judicial review if alleged to be not within the scope of the enabling legislation, the allegations of fact upon which the subjective satisfaction of the Minister was based are not” .
(c) Judicial Review in Malaysia – Post-1989 amendments
The Bill inserted the new Section 8B(1) which provides that the judicial review that is permitted is only “in regard to any question on compliance with any procedural requirement” in the MISA. Even this power is further restricted by section 8A where the detention order is still valid even if certain procedural requirements have not been followed .
Cases relating to detention under section 8 of the MISA subsequent to the amendment have therefore only dealt with procedural issues like the content of the detention order . The recent Federal Court decision of Abdul Razak bin Baharudin v. Ketua Polis Negara held and confirmed that an order of the Minister under section 8 of the MISA may only be challenged on the ground of procedural non-compliance . This specifically rules out challenging the grounds or reasons given by the Minister, as well as allegations of mala fide .
However, it went on to state that the amended section 8B does not cover an act done or decision made by a police officer under section 73 of the MISA. The leading decision on section 73 post-amendment is the Federal Court decision of Mohamad Ezam where the Court held as follows:-
The test under section 73(1) is an objective test. The Court held that “given the enormous powers conferred upon police officers including minor officials such as guards and watchmen and the potentially devastating effect or effects arising from any misuse thereof, …it therefore makes sense that the subjective judgment accorded to the minister under s 8 cannot be extended to the police in the exercise of their discretion under s 73(1)” . The Court could therefore “enquire into the arresting officers' 'reason to believe' when the appellants' arrests were effected…” .
The court was of the view that it can “examine whether the executive's decision was in fact based on national security considerations. Here, the court was entitled to inquire into the basis for the detaining authority's reasons to believe that the appellants had acted or were about to act or were likely to act in a manner prejudicial to the security of Malaysia” .
The detention can be challenged on the ground that it was made mala fide. Mala fide “does not mean at all a malicious intention. It normally means that a power was exercised for a collateral or ulterior purpose” . The onus is on the detainee to prove mala fide.
(d) Judicial Review in Singapore – pre1989 amendments
(i) Burden of proof
In Chng Suan Tze’s case , the Court of Appeal held that the initial burden was on the executive to justify the legality of the detention under s 8 of the ISA. This is discharged “…only by the production of the detention orders and evidence of the President's satisfaction” .
The Court held that it “...cannot be presumed from the mere fact that the minister has made a detention order under s 8(1) of the ISA, that the requisite satisfaction of… the President, has been complied with” .
The Court went on to hold that evidence of the President’s satisfaction can be produced either by way of direct evidence “…from the President himself or by way of evidence from any Cabinet minister or the Secretary to the Cabinet (or from the authorised minister), that the Cabinet (or the authorised minister) was satisfied and that the President after receiving the advice of the Cabinet (or the authorised minister) was satisfied” .
As the Respondent failed to discharge the burden of showing that the President was satisfied as required under s 8 of the ISA before the detention order was made, the appeals were allowed on that ground.
(ii) Justiciability of the president’s discretion
In Lee Mau Seng v. Minister of Home Affairs, Singapore & Anor , the court was of the view that mala fides is not a justiciable issue in the context of the SISA. The court held that if the issue was justiciable, it would mean that the court could “…substitute its own judgement for the subjective satisfaction of the President acting, in accordance with the advice of the Cabinet… and this runs contrary to the provisions of section 12(2) of the Act which makes the decision of the President final and not to be called into question by any court” .
However, it is submitted that this is misleading as section 12(2) specifically refers to the decisions made by the president after considering the recommendations of the advisory board and not the decision to issue the detention order in the first place.
The case also held that “…it is not open to a court in Singapore to examine the grounds and allegations of fact supplied to the applicant… for the purpose of deciding whether or not some or all of them are so vague, unintelligible or indefinite… .” as the discretion given to the president is not justiciable .
In the High Court case of Wee Toon Lip & Ors v Minister of Home Affairs & Anor , the court also held that ”bad faith” is not a justiciable issue under the SISA.
However, this position was changed when the Court of Appeal in Chng Suan Tze’s case held that the satisfaction of the President is open to be reviewed by the Courts. The Court was of the view that the subjective test could no longer be supported and that the objective test was applicable. Therefore, while “…a court would not question the executive's decision as to what national security required, the court could examine whether the executive's decision was in fact based on national security considerations; similarly, although the court would not question whether detention was necessary for the purpose specified in s 8(1), the court could examine whether the matters relied on by the executive fell within the scope of those specified purposes” . The scope of review of these discretions is limited to the “GCHQ grounds” of illegality, irrationality or procedural impropriety and the burden of proving these grounds lies on the applicant.
It must be noted that as the SISA requires the satisfaction of only the president before a detention order is made, any allegation of mala fide must be directed and proven against the president. This was held in the High Court decision of Lim Hock Siew & Ors v. Minister of Interior and Defence . As the facts of the case reveal that the applicants have alleged bad faith on the part of the government, this ground was rejected by the Court.
(iii) Conditions of detention
It was held in the case of Lau Lek Eng & Ors v. Minister of Home Affairs & Anor that habeas corpus is not an available remedy when the “…grounds relied on by the applicants in support of their application for habeas corpus relate to the manner and conditions of their detention and not to the legality of their detention under the Act” .
This was reiterated in Chng Suan Tze’s case , where the Court of Appeal held that “as a general rule therefore, where the manner in which detention is conducted is alleged to be unlawful whether because the conditions are alleged to be punitive in nature or excessively harsh, the detainee's remedy is to challenge the validity of the conditions of the detention, not the lawfulness of the detention itself” .
However, the court’s jurisdiction to decide on the lawfulness of the detention is severely restricted when a bill was passed on 23 June 1989 .
(e) Judicial Review in Singapore – post 1989 amendments
Following the Court of Appeal’s decision in Chng Suan Tze’s case , the government of Singapore wasted no time in amending the laws. In December 1988, the Bills to amend both the Constitution and the ISA were introduced in Parliament and the same were passed on 25th January 1989. The amendments to the constitution took effect beginning 26th January 1989 while the amendments to the ISA took effect on the 28th January 1989.
The amendment to the Constitution was the inclusion of Article 149(3) as follows:-
If, in respect of any proceedings whether instituted before or after the commencement of this clause, any question arises in any court as to the validity of any decision made or act done in pursuance of any power conferred upon the President or the Minister by any law referred to in this Article, such question shall be determined in accordance with the provisions of any law as may be enacted by Parliament for this purpose; and nothing in Article 93 shall invalidate any law enacted pursuant to this clause.
Section 8 of ISA was amended by adding a section 8B to make “…the law governing the judicial review of any decision made or act done in pursuance of any power conferred upon the President or the Minister by the provisions of this Act shall be the same as was applicable and declared in Singapore on 13 July 1971; and no part of the law before, on or after that date of any other country in the Commonwealth relating to judicial review shall apply” .
Further, as in the MISA, judicial review is only restricted “…to any question relating to compliance with any procedural requirement of this Act governing such act or decision” . The new section 8D gives these amendments a retrospective application.
With reference to section 8B, the Court of Appeal in Teo Soh Lung v Minister of Home Affairs & Ors held that the relevant decision that was “…applicable and declared in Singapore on 13 July 1971…” was indisputably the case of Lee Mau Seng v Minister of Home Affairs and no other case . Therefore, section 8B should be construed as reinstating the principles enunciated in Lee Mau Seng’s case .
Further, the High Court in Teo Soh Lung’s case and Vincent Cheng’s case held that section 8B(1) and 8B(2) of the ISA had “…effectively excluded any right of judicial review on the grounds of illegality, irrationality and unconstitutionality of any detention order”. This reverses the stand taken by the Court of Appeal in Chng Suan Tze’s case . The High Court in Vincent Cheng v. Minister of Home Affairs held as follows:-
“By the scheme of the ISA and of the Constitution from its very inception, the executive has been entrusted as the sole body to look at and weigh the evidence and case against a person and to form a view on the question whether a detention order should be issued. …the least that can be asserted against the applicant is that there has been some evidence against the applicant which related to national security and that once that assertion can be properly made it would be contrary to the scheme and the law of preventive detention for any court of law to adjudicate on the sufficiency or relevancy of the evidence nor should a court, by a side wind, as it were, investigate any allegation of bad faith or the abuse of the powers of ISA”.
As for judicial review of detention under section 74 of the SISA, it is submitted that as there is no reported case law in Singapore regarding the same, the law as it stands should be the same as in Malaysia following the Federal Court’s decision of Mohamad Ezam’s case .
(f) Respect accorded to the Court’s decision
Finally, it is submitted that if the proceedings must be carried out before a court of law, respect must therefore be duly ascribed to the court and its decision.
It is common knowledge that in cases where habeas corpus has been granted and the detainee released, the executive would merely just issue a fresh detention order and rearrest the detainee again , usually the moment he steps out of the court room or the detention centre.
This matter was raised before the learned Judge in Abdul Ghani Haroon v Ketua Polis Negara and another application (No. 4) . The court had earlier granted the application for habeas corpus. While waiting for the detainees to be brought to court to be released, the Judge and counsel for the detainee observed a “…tremendous police presence around the court premises that afternoon” . Counsel for the detainees made an oral application that the detainees would not be rearrested upon their release. 2 grounds were forwarded – the first is to give fruits to the decision of the court to release the detainees while the second is on humanitarian grounds as the detainees have been denied visitations from their family members since being detained and the family members were still travelling from outstation.
When the Federal Counsel did not assure the court that the detainees would not be rearrested immediately after they were released from the court, the learned Judge allowed the application and ordered that the detainees not be rearrested for 24 hours. The Judge was of the view that:-
“should rearrest immediately occur, that would have been a grave injustice. For such an action on the part of the police would make a mockery not only of my judgment which I had delivered in the morning but also of the whole habeas corpus proceeding and of the constitutional guarantees under art 5 of the Constitution” .
The learned Judge even went so far to state that in his view, if the detainees were rearrested immediately after released based on the same grounds of the earlier detention which had been ruled unlawful, that would amount to contempt of court .
SUARAM, a Malaysian NGO in their Malaysian Human Rights Report 2001 noted at pages 153 and 154 that the learned Judge came under criticism from the then Prime Minister of Malaysia. It is submitted that the learned Judge was right in making such an order. The right to take proceedings before a court should include the guarantee that the court’s decision is respected and not be made a mockery.
In the case of detention under section 73, the detainee is allowed to bring proceedings before the court and challenge the detention on both procedural and substantive grounds. The burden is placed on the executive to show reasons why they are of the view the detention is necessary and the test used is the objective test. It is submitted that this will not offend any of the ICCPR provisions.
The same however cannot be said to a detention under section 8 of the MISA and the SISA. The present situation only allows challenges made on procedural non-compliance. Even before the amendments were made, the courts have consistently held that subjective discretion of the minister is not justiciable. This is clearly not in line with the provisions of the ICCPR.
It is submitted that the courts can not be said to have jurisdiction to decide on the lawfulness of the detention if the jurisdiction is so severely restricted.
Regarding the 1988 amendments to the MISA, Chandra Muzaffar states:-
“It is obvious that the purpose of this amendment is to legalise illegalities and legitimise what is illegitimate.… After these amendments, how can we claim that we are a country that upholds the rule of law? What rule of law is there when a person who is detained without trial, which is already a grave act of injustice, is further punished by denying him any recourse to the courts?”
It is submitted that the 1988 amendments to both the MISA and the SISA are clearly unreasonable and unjust.
The stand taken by the local courts on the non-justiciability of the minister’s discretion is based on the case of Liversidge v. Anderson. It is submitted that Liversidge should no longer be followed.
The learned High Court Judge in Yit Hon Kit’s case questioned whether the courts should still consider the law laid down by the majority in Liversidge is still good law regard being had to subsequent English decisions. Referring to R v Inland Revenue Commissioners, ex parte Rossminster , the learned Judge noted that Lord Diplock remarked, pungently, at p. 1011:
"... the time has come to acknowledge openly that the majority of this House in Liversidge v. Anderson were expediently and, at that time, perhaps, excusably, wrong and the dissenting speech of Lord Atkin was right."
The learned Judge also referred to Lord Scarman again in Reg v Secretary of State for the Home Department, ex parte Khawaja who held as follows:-
"The classic dissent of Lord Atkin in Liversidge v Anderson  AC 206 is now accepted as correct… in its declaration of English legal principle. Lord Atkin put it thus, at p. 245: 'that in English law every imprisonment is prima facie unlawful and that it is for a person directing imprisonment to justify his act."
The learned Judge was hoping that the Supreme Court may consider these cases but unfortunately, the appeal to the Supreme Court was withdrawn.
It is submitted that the case of Liversidge v Anderson should not be recognised as good law anymore in Malaysia. The discretion of a Minister should be able to be challenged in a court of law. This is the foundation of basic legal principles like Separation of Powers and the Rule of Law. While it is conceded that certain matters which affect national security must be kept in confidence, it is submitted that the courts can surely be trusted on these matters. Even if the matter is extremely sensitive, it should be the court that rules on it.
Unchecked powers of discretion can only lead to abuse of the same. The State must know that they cannot take away the liberty of an individual without ensuring that it is not done in an arbitrary manner and in accordance with law.