FAC News - Wednesday, September 18, 2002 8:19 PM

DALAM MAHKAMAH PERSEKUTUAN MALAYSIA

BERSIDANG DI KUALA LUMPUR

(BIDANG KUASA RAYUAN)

MAHKAMAH PERSEKUTUAN (BIDANG KUASA JENAYAH

BIL:     05-8-2001(W)

(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH

BIL: 44-15-2001)

1. MOHAMAD EZAM BIN - PEMOHON

MOHD NOOR

KETUA POLIS NEGARA - RESPONDEN

MAHKAMAH PERSEKUTUAN (BIDANG KUASA JENAYAH

BIL: 05-9-2001(W)

(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH

BIL: 44-16-2001)

2. RAJA PETRA BIN RAJA KAMARUDIN - PEMOHON

KETUA POLIS NEGARA - RESPONDEN

MAHKAMAH PERSEKUTUAN (BIDANG KUASA JENAYAH

BIL: 05-10-2001(W)

(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH

BJL: 44-17-2001)

3.CHUA TIAN CHANG - PEMOHON

KETUA POLIS NEGARA - RESPONDEN

MAHKAMAH PERSEKUTUAN (BIDANG KUASA JENAYAH

BIL: 05-11-2001(W)

(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH

BIL: 44-18-2001)

4. HISHAMUDIN BIN RAIS - PEMOHON

KETUA POLIS NEGARA - RESPONDEN

MAHKAMAH PERSEKUTUAN (BIDANG KUASA JENAYAH

BIL:     05-12-2001(W)

(WILAYAH PERSEKUTUAN PERMOHONAN JENAYAH

BIL: 44-19-2001)

5. SAARI BIN SUNGIB - PEMOHON

KETUA POLIS NEGARA - RESPONDEN

Coram:

Mohamed Dzaiddin, CJ

Wan Adnan Ismail, PCA

Steve Shim Lip Kiong, CJ (Sabah & Sarawak)

Abdul Malek Ahmad, FCJ

Siti Norma Yaakob, FCJ

JUDGMENT OF ABDUL MALEK AHMAD, FCJ

We sat on thirteen occasions from 6th  June 2001 before we reserved judgment on 28th  February 2002. In the process, the panel lost one of its members with the untimely demise of our learned brother Wan Adnan Ismail, President of the Court of Appeal, on 24th December 2001.

This situation is aptly and amply covered by section 78 of the Courts of Judicature Act 1964 (hereinafter “the CJA”) which states:

“Continuation of proceedings notwithstanding absence of Judge

78(1) If, in the course of any proceeding, or, in the case of a reserved judgment, at any time before delivery of the judgment, any Judge of the Court hearing the proceeding is unable, through illness or any other cause, to attend the proceeding or otherwise exercise his functions as a Judge of that Court, the hearing of the proceeding shall, continue before, and judgment or reserved judgment, as the case may be, shall be given by, the remaining Judges of the Court, not being less than two, and the Court shall, for the purposes of the proceeding, be deemed to be duly constituted notwithstanding the absence or inability to act of the Judge as aforesaid.

(2)        In any such case as is mentioned in subsection (1) the proceeding shall be determined in accordance with the opinion of the majority of the remaining Judges of the Court, and, if there is no majority the proceeding shall be re-heard.”

3.         At the first sitting, on 6th  June 2001, Dato’ Abdul Gani Patail in leading the prosecution team, raised two preliminary issues. The first was that the second appellant, who had been released four days earlier, was no longer a person being restrained of his personal liberty and the second was that the remaining appellants were then being detained under the powers of the Minister of Home Affairs (hereinafter “the Minister”) under section 8(l) of the Internal Security Act 1960 (hereinafter “the ISA”).

4.         As for the preliminary objection, he stressed that since the second appellant had been released, his appeal was no longer a living issue and was purely academic. As for the second preliminary objection, he reiterated that the other four appellants were no longer under police custody as the Minister had ordered them to be detained under section 8(l) of the ISA with effect from the 2nd June 2001. This undisputed fact makes mockery, he said, of the fact that the applications for habeas corpus are directed not against the Minister but against the Inspector General of Police (hereinafter “the IGP”) as the respondent. Since they were no longer under police custody under section 73 of the ISA, he added, the appeal has been rendered academic. The appropriate course of action, he suggested, was to file a writ of habeas corpus against the Minister.

5.         Reference was made to Menteri Hal Ehwal Dalam Negeri, Malaysia & 0rs v Karpal Singh (1992)1 MLJ 147 and Re RE. Long@ Jimmy & Ors; P.E Long & Ors. v Menteri  Hal Ehwal Dalam Negeri Malaysia & Ors (1976) 2 MLJ 133 to buttress his arguments.

6.         In reply, Sulaiman Abdullah for the appellants submitted that as regards the first issue, the second appellant is facing a High Court order declaring his detention to be lawful and should he decide to take civil proceedings, the parties would remain the same and it could amount to res judicata.

7.         All previous habeas corpus cases had decided that section 73 and section 8 of the ISA were inextricably linked. The Minister, he argued, made the order under section 8 based on the police investigations while the appellants were being detained under section 73 of the ISA. The validity of the High Court decision was therefore a live Issue.

8.         After a short recess, we unanimously held that the issue is still alive in view of the finding of the High Court that the detentions of the five appellants are lawful and decided that there was no merit to the preliminary objections. We accordingly ordered the appeals to proceed on the next hearing date.

9.         On 10th July 2001, learned Senior Deputy Public Prosecutor Mohd. Yusof Zainal Abiden asked for a postponement as they had just been served with fresh affidavits. On 6th August 2001, we dealt with the two motions by the appellants to adduce evidence, the first dated 9th July 2001 and the second 1st August 2001, in the form of a number of affidavits filed by the appellants themselves and a few others who had been similarly detained.

10.       For the appellants, Sulaiman Abdullah maintained that the word “necessary” in section 93(l) of the CJA means “necessary in the interests of justice”. He cited Regina v Parks (196!) 1 WLR 1484 where the Court of Criminal Appeal in England held that the court would only exercise its discretion under section 9 of the Criminal Appeal Act 1907 to admit further evidence when the evidence was not available at the trial, was relevant to the issue, and was credible evidence in the sense that it is well capable of belief, and that, applying that principle, the court would admit the evidence. Further, it held that the evidence, if given at the trial, might have created a reasonable doubt in the minds of the jury as to the guilt of the appellant, if that evidence have been given together with the other evidence at the trial.

11.       The other authority referred to was the Singapore case of Juma’at bin Samad v  Public Prosecutor (1993)3 SLR 338 where Yong Pung How CJ ruled that three conditions have to be fulfilled to justify the court taking additional evidence-non-availability, relevance and reliability. First, it must be shown that the evidence could not have been obtained with reasonable diligence for use at the trial; secondly, the evidence must be such that, if given at the trial, it would probably have an important influence on the result of the case, although it need not be decisive; and thirdly, the evidence must be apparently credible, although it need not be incontrovertible. In short, the circumstances under which an application to introduce fresh evidence will be allowed are extremely limited.

12.       The question, learned counsel argued, is whether the evidence was available at the time of trial. The appellants had no access to counsel then despite their requests. The affidavits in reply of the respondent alleging hearsay was general with no condescending particulars.

13.       Learned counsel reiterated that the evidence sought to be adduced related to the questioning during detention. It was apparent, he added, that the reason for detention was not the real reason as from the questions asked, the appellants were being detained to obtain information about other individuals and political parties and there were attempts to induce them not to support the sacked Deputy Prime Minister.

14.       This was a total misuse of the security provisions according to learned counsel. In fact, he submitted that the respondent’s affidavit was in itself hearsay as there were no sources for the information and belief. All the authorities available were not on all fours. However, the additional evidence sought to be adduced here was the direct evidence of the appellants themselves which, because of its direct nature, relevance, pertinence and cogency, ought to be admitted.

15.       Dato’ Azahar Mohamad, speaking for the respondent, said that the established principle was that additional evidence ought to be admitted only in exceptional circumstances citing R v Jordan (1956) 40 Cr App.Rep. 152 and R v Stafford & Another (1969) 53 Cr App. Rep. 1 in support.

16.       He added that the effect of the two motions to adduce further evidence was to delay the appeal proper and to prolong the matter. When questioned by the Bench, Dato’ Azahar clarified that the appellants were arrested on 10th  and 11th April 2001, the applications for habeas corpus were filed on 12th and 13th  April 2001, the trial was fixed on 17th April 2001 for three days, and the decision was given on 25th  April 2001. He conceded that the appellants were not able, for the period from, 10th April to 25th April 2001, to put in the affidavits they are now seeking to put in for the appeals.

17.       He explained that they were not given access to counsel as police were still continuing investigations. He alleged that the whole purpose of this exercise to put in additional evidence was to examine the methodology of the police questioning and to conduct a perusal of information provided to assess its

value. He agreed that some of the questions may appear to be irrelevant to the appellants but they were necessary for the police to collect information.

18.       The learned Senior Deputy Public Prosecutor submitted that the issue of the conditions of detention were not relevant to the legality of detention. He argued that the arrests on 10th  and 11th  April 2001 were for conduct prejudicial to security and all evidence in the affidavits were subsequent to the arrests and were bare assertions. He emphasised that only evidence prior to the arrests was admissible and it must have a bearing on the nature of the case.

19.       In reply, learned counsel said all that they wanted to adduce through the additional evidence was the respondent’s state of mind when the arrests and detention were effected. The gathering of information, he said, cannot be the reason for the detention. All the personal details asked for in the questioning were for a collateral purpose and not for the purpose they were arrested.

20.       After a brief adjournment, we were unanimous that the applications to adduce further evidence ought to be allowed. We adopted and applied the principles in Ladd v Marshall (1954) 3 All E.R. 745 because the three criteria stated therein have on the facts of these applications been complied with. On the meaning of ‘additional evidence to be necessary” in section 93(l) of the CJA, we adopt the findings in Juma’at bin Samad v Public Prosecutor (supra) and Irtelli

Squatriti & Others (1993) Q.B. 33 to mean “necessary or expedient in the interests of justice”.

21.       We consequently gave the respondent the opportunity to file affidavits in reply to the various allegations raised in the appellants’ affidavits and adjourned the mater to a date to be fixed.

22.       On the next hearing date on 15th  October 2001, learned leading counsel for the appellants began his submissions by stating that they were categorising their arguments under five main heads namely:

(a)        recusal;

(b)        Article 149 of the Federal Constitution (hereinafter “the Constitution”) and the ISA;

(c)        section 73 of the ISA;

(d)        the procedural requirements under section 73 of the ISA and

(e)        access to legal representation as provided for under Article 5(3) of the Constitution and the effect of denial of such access.

However, on that day, we only heard arguments on the recusal.

23.       Two days later, we gave a six page written decision on the recusal.

The concluding paragraph states:

“In our view, on the facts submitted by counsel and the reasons given by the learned trial judge in the grounds of judgment at page 601 of the Appeal Record, there is no likelihood of danger, in the sense of a real possibility, of bias on the part of the learned judge when he heard the habeas corpus application. We concede that the only common factor between the appellants and the “Black 14” judgment of the learned judge is that the appellants were detained by the respondent for organizing demonstrations one of which was on 14 April 2001 which became the foundation for the “Black 14” allegation of the respondent. However, we do not think such circumstances does give rise to a real danger of bias on the part of the learned judge. Even if we apply the reasonable apprehension of bias test we would arrive at the same conclusion. It follows therefore that the issue whether the matter should be remitted to the High Court for rehearing or it should be dealt by this court does not arise.

In the result we would dismiss this ground of appeal”.

24.       The second heading namely issues relating to Article 149 of the Constitution and the ISA was dealt with by Christopher Leong for the appellants. It was his contention that the ISA is an Act specifically and solely to deal with and to counter the communists and the communist threat because Article 149 of the Constitution authorises or empowers Parliament to enact or pass legislation in respect of specific acts or threatened acts by a substantial body of persons and that in enacting the ISA pursuant to Article 149 of the Constitution, it was for the specific and sole purpose of dealing with the communists and the communist threat.

25.       Article 149 of the Constitution states:

“149. Legislation against subversion, action prejudicial to public order, etc.

(I)        If an Act of Parliament recites that action has been taken or threatened by a substantial body of persons, whether inside or outside the Federation —

(a)        to cause, or to cause a substantial number of citizens to fear, organised violence against persons

or property or

(b)        to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or

(c)        to promote feelings of ill-will and hostility between different races or other classes of the

population likely to cause violence; or

(d)        to procure the alteration, otherwise than by lawful means, of anything by law established; or

(e)        which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or

(f)         which is prejudicial to public order in, or the security of, the Federation or any part thereof,

any provision of that law designed to stop or prevent that action is valid notwithstanding that it s inconsistent with any of the provisions of Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.

(2) A law containing such a recital as is mentioned in Clause (1) shall, if not sooner repealed, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.’.

26.       Reliance was made on the speech of Raja Azlan Shah Ag. LP (as he then was) in the Federal Court case of Dato Menteri Othman bin Baginda & Anor v. Dato Ombi Syed Alwi bin Syed ldrus ( 981)1 MLJ 29 where he said:

“In interpreting a constitution two points must be borne in mind. First, judicial precedent plays a lesser part than is normal in matters of ordinary statutory interpretation. Secondly, a constitution, being a living piece of legislation, its provisions must be construed broadly and not in a pedantic way “with less rigidity and more generosity than other Acts” (see Minister of Home Affairs v. Fisher [1979] 3 All E.R. 21). A constitution is sui generis, calling for its own principles of interpretation, suitable to its character, but without necessarily accepting the ordinary rules and presumptions of statutory interpretation. As stated in the judgment of Lord Wilberforce in that case: “A constitution is a legal instrument given rise, amongst other things, to individual rights capable of enforcement in a court of law. Respect must be paid to the language which has been used and to the traditions and usages which have given meaning to that language. It is quite consistent with this, and with the recognition that rules of interpretation may apply, to take as a point of departure for the process of interpretation a recognition of the character and origin of the instrument, and to be guided by the principle of giving full recognition and effect to those fundamental rights and freedoms.” The principle of interpreting constitutions “with less rigidity and more generosity was again applied by the Privy Council in Attorney-General of St Christopher, Nevis and Anguilla v Reynolds [1979] 3 All E.R. 129, 136.”.

27.       Therefore, counsel added, we must look at the language used in the provision, which is in Article 149 of the Constitution, and in conjunction with this, one should look at and take into account the history and origin of the provision in order to implement the true intention of the framers of the Constitution. In order to ascertain the intention and purpose of a particular provision in the Constitution, resort may be had to the historical character and origin of the provision in question, and to this end contemporaneous speeches and documents relating to that provision are allowed and should be referred to.

28.       He conceded, however, that although the Constitution and its provisions should be construed with less rigidity and more generosity than ordinary statutes, this did not mean that the court is at liberty to stretch or pervert the language of the Constitution as decided in Merdeka University Bhd v Government of Malaysia (1981)2 MLJ 356

29.       He added that all constitutional provisions that provide for the fundamental liberties and rights of citizens must be given its widest and most liberal interpretation and application whereas any provision in the Constitution or any law which sought to restrict such fundamental liberties and rights must be given a narrow and restricted interpretation citing Ong Ah Chuan v Public Prosecutor; Koh Chai Cheng v Public Prosecutor (1981) 1 MLJ 64, Chng Suan Tze v The Minister of Home Affairs & Ors. and other appeals (1989) 1 MLJ 69, Sukma Darmawan Sasmitaat Madja v Ketua Pengarah Penjara Malaysia & Anor (1999) 1 MLJ 266 and Re Datuk James Wong Kim Min; Minister of Home Affairs, Malaysia & Ors. v. Datuk James Wong Kim Min (1976)2 MLJ 245 to illustrate the point.

30.       Learned counsel pointed out that the words “that action has been taken or threatened by any substantial body of persons” are couched in the past tense. This clearly means, he said, that there must be an existing act or threat, that the acts or threats have occurred and are in existence at the time Parliament is deliberating on the passing of the law.

31.       The reference to ‘any substantial body of persons” must be read and construed in tandem with the words “that action has been taken or threatened”, Therefore, he argued, if the specific action or threatened action is communist activity, then the body of persons must be the communists and their agents and possibly their sympathisers.

32.       He further submitted that quite apart from the language and wording of Article 149 of the Constitution itself, the stated rationale and intention behind that Article is reinforced or supported by the historical background and contemporaneous documents of the time namely the Report of the Federation of Malaya Constitutional Commission 1957 (hereinafter “the Report”). The relevant

Article came about as a result of the recommendations of the Reid Commission which are contained in the Report.

33.       There is no limitation, he said, to the number of times Parliament may have recourse to its use to deal with any number of specific acts it deems fit. However, each such legislation must be individually addressed and considered by Parliament taking into account in its deliberations the specific circumstances of the acts or threats and body of persons sought to be dealt with. Examples are the Dangerous Drugs (Special Preventive Measures) Act 1985 and the Dangerous Drugs (Forfeiture of Property) Act l988. Article 149 of the Constitution, be stressed, was not intended to be used to enact omnibus laws.

34.       Learned counsel was very much aware that similar submissions had been raised in the landmark decision of Theresa Lim Chin Chin & Ors v lnspector General of Police (1988) 1 MLJ 293. Salleh Abas LP, in delivering the judgment of a three member panel of this court, dealt with the point in the following manner:

“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 paragraph 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 L.J. in R. v. Hosenball [1977] 1 W.L.R. 767 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’ 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."

The expression “that action” in our view 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.”.

35.       It was the respectful submission of learned counsel that the Supreme Court was mistaken in law on the issue of the effect or probative value of the

documents sought to be relied on. This was not a case of ordinary interpretation of the Act or its provisions in which situation the Supreme Court decision would have been correct at that time when it relied on Hosenball’s  case.

36.       However, he pointed out that the position has since changed in England by the decision of the House of Lords in Pepper (Inspector of Taxes) v Hart and related appeals [1993] 1. All ER 42 where it was held that the courts should adopt the purposive approach to statutory interpretation and in doing so regard may be had to parliamentary material. In that case, however, the issue of constitutionality did not arise.

37.       The seven member panel, with Lord Mackay LC dissenting, held that having regard to the purposive approach to construction of legislation the courts had adopted in order to give effect to the true intention of the legislature, the rule prohibiting courts from referring to parliamentary material as an aid to statutory construction should, subject to any question of parliamentary privilege, be relaxed so as to permit reference to parliamentary material where:

(a)        the legislation was ambiguous or obscure or the literal meaning led to an absurdity;

the material relied on consisted of statements by a minister or

(b)        other promoter of the Bill which lead to the enactment of the legislation together if necessary with such other parliamentary

material as was necessary to understand such statements and their effect; and

(c)        the statements relied on were clear.

Furthermore, the use of parliamentary material as a guide to the construction of ambiguous legislation would not infringe section I article 9 of the Bill of Rights since it would not amount to a “questioning” of the freedom of speech or parliamentary debate provided counsel and the judge refrained from impugning or criticizing the minister’s statements or his reasoning, since the purpose of the courts in referring to parliamentary material would be to give effect to, rather than thwart through ignorance, the intentions of Parliament and not to question the processes by which such legislation was enacted or to criticise anything said by anyone in Parliament in the course of enacting it.

38.       Similarly, it was held in the Singapore case of Constitutional Reference No. 1 of 1995 (1995)2 SLR 201 that a purposive approach should be adopted in interpreting the Constitution to give effect to the intent and will of Parliament and the approach required by section 9A of the Intepretation Act (Cap. 1) required no ambiguity or inconsistency. This was clearly a case where resort to contemporaneous speeches and documents was sanctioned.

39.       In Hamdard Dawakhana v Union of India [1960] AIR 554. a five member panel of the Supreme Court of India declared:

“When the constitutionality of an enactment is challenged on the ground of violation of any of the articles in Part III of the Constitution, the ascertainment of its true nature and character becomes necessary i.e. its subject matter, the area in which it is intended to operate, and its purport and intent have to be determined. In order to do so it is legitimate to take into consideration all factors such as the history of the legislation, the purpose thereof, the surrounding circumstances and conditions, the mischief which it intended to suppress, the remedy for the disease which the legislature resolved to cure and the tine reason for the remedy… . Further, in order to sustain the presumption of constitutionality the court may take into consideration matters of common knowledge and the history of the times, and may assume every state of facts which can be conceived of as existing at the time of legislation.”.

40.       Learned counsel concluded that the Supreme Court in Theresa Lim’s case was in error when it decided on this issue the way it did,

41.       Dato’ Azahar Mohamed for the respondent told the court that prior to the amendment to the Constitution vide the Constitution (Amendment) Act 1978 (Act A442) which came into force on 31st  December 1978, the heading of Part XI of the Constitution was “Special Powers Against Subversion, And Emergency Powers” whereas after that amendment the heading is now “Special Powers Against Subversion, Organised Violence And Acts And Crimes Prejudicial To The Public And Emergency Powers”.

42.       Headings, he said have been used by the courts in order to ascertain the purpose of the provisions under consideration. In Dixon and another v. British Broadcasting Corporation. [1979] 2 All E.R. 112 at page 116, both Shaw and Brandon LJJ referred to the heading ‘Unfair Dismissal’ of Part II of Schedule 1 to the Trade Union and Labour Relations Act 1974 and to the heading ‘Right of employee not to be unfairly dismissed’ as giving the purpose in the light of which paragraphs 5 and 12 were to be interpreted. In Canada, headings have been used for purposes of interpretation. In Law Society of Upper Canada v. Skapinker (1984) 9 DLR (4th ) 161, Estey J, speaking on behalf of a seven member panel of the Supreme Court of Canada on headings in the Charter, said at page 176:

“The Charter, from its first introduction into the constitutional process, included many headings including the heading now in question.... It is clear that these headings were systematically and deliberately included as an integral part of the Charter for whatever purpose. At the very minimum, the court must take them into consideration when engaged in the process of discerning the meaning and application of the provision of the Charter.’.

It was Dato’ Azahar’s contention that the heading can be used to act as a guide to find the meaning, intent and purpose of Article 149 of the Constitution and the critical word, he added, would be “subversion”.

43.       In Dewan Undangan Negeri Kelantan & Anor v Nordin bin Salleh & Anor (1992)1 MLJ 697 Abdul Hamid Omar, UP said at page 709:

‘Secondly, as the Judicial Committee of the Privy Council held in Minister of Home Affairs V. Fisher (1980) AC 319 at p.329, a constitution should be construed with less rigidity and more generosity than other statutes and as sui juris, calling for principles of interpretation of its own, suitable to its character but not forgetting that respect must be paid to the language which has been used.

In this context, it is also worth recalling what Barwick CJ said when speaking for the High Court of Australia, in Attorney General of the Commonwealth, ex relatione McKinley (sic McKinlay) v. Commonwealth of Australia (sic The Commonwealth of Australia and Another) (1975) 135 CLR at page 17:

the only true guide and the only course which can produce stability in constitutional law is to read the language of the constitution itself, no doubt generously and not pedantically, but as a whole and to find its meaning by legal reasoning.

44.       Since the word “subversion” is not defined in the Constitution, Dato’ Azahar argued that it should be given its ordinary meaning. In Black’s Law Dictionary it is defined as “the process of overthrowing, destroying, or corrupting” whereas “subvert” in the Concise Oxford Dictionary is “overturn, overthrow or upset (religion, government, the monarchy, morality, etc)”.

45.       Dato’ Azahar stressed that the term is of such a broad, catch-all nature that it includes all the actions referred to in Article 149 of the Constitution. In Teh Cheng Poh v Public Prosecutor (1979)1 MLJ 50, the Privy Council though Lord Diplock said:

“The Article is quite independent of the existence of a state of emergency. On the face of it the only condition precedent to the exercise by Parliament of the extended legislative powers which it confers is the presence in the Act of Parliament of a recital stating that something had happened in the past viz. that action of the kind described “has been taken or threatened”. It is not even a requirement that such action should be continuing at the time the Act of Parliament is passed. Clause (2) of the Article provides expressly that the law shall continue in force until repeated or annulled by resolutions of both Houses of Parliament. Their Lordships see no reason for not construing these words literally. The purpose of the Article is to enable Parliament, once subversion of any of the kinds described has occurred, to make laws providing not only for suppressing it but also for preventing its recurrence. Where such an Act of Parliament confers powers on the Executive to act in a manner inconsistent with Article 5, 9 or 10, the action must be taken bona fide for the purpose of stopping or preventing subversive action of the kind referred to in the recitals to the Act, for in order to be valid under Article 150(l) (sic: presumably article 149(1) is meant) the provision of the Act which confers the power must be designed to stop or prevent that subversive action and not to achieve sonic different end.”.

46.       He submitted that the legislative purpose of Article 149 of the Constitution is very clear, that is, to enable Parliament to enact laws to suppress and to prevent the recurrence of any form of subversion including, but not limited to, communist subversion. With such clarity of legislative purpose, the literal construction of that Article would be to give it a plain and clear meaning and not to import into it words which are not there. The literal construction of the said Article means that it enables Parliament to enact laws designed to stop and prevent actions described in paragraphs (a) to (f) of that Article.

47.       The Senior Deputy Public Prosecutor added that the legislation enacted pursuant to Article 149 of the Constitution is designed to deal with subversion. Subversive acts do not come only from the communists but also other subversive elements whose action is prejudicial to public order or security of the country. There is absolutely nothing in the Article to indicate that the words “action has been taken or threatened” would necessarily mean communist actions or threats made by communists. It is also submitted that there is also nothing in the Article to limit the enactment of laws only to specific acts or threats and in respect of bodies of persons specified at the time of the enactment.

48.       To limit the scope of Article 149 of the Constitution to only specific act of subversion, he said, would only manifest absurdities not intended by the framers of the Constitution. It was never the intention of the framers to restrict the application of that Article to specific acts or threats and that every specific act or threat would require a specific piece of legislation. He reiterated that we must bear in mind that Article 149 of the Constitution provides powers of preventive detention. It is in essence an anticipatory measure.

49.       Thus, if the argument of the appellants is to be accepted, he submitted, piecemeal legislation would have to be enacted to deal with threats such as communism, religious fanaticism, racism and any other forms of subversion. Therefore, if a religious group commits an act of subversion, no immediate and

effective action can be taken to nip the anarchy in the bud but to wait for Parliament to enact a law to deal with that specific threat of religious fanaticism. He argued that subversion can flare at any time and by any substantial body of persons and the framers of the Constitution would have anticipated that subversive acts do not come from communists alone. Therefore, Article 149 of the Constitution was not couched in a specific manner merely to counter a specific menace but was termed in a broad manner so as to encompass any form of subversion.

50.       He further said that we cannot go behind the ISA and ask if it was in fact designed to stop or to prevent such action. The recital is conclusive; it is not justifiable. According to the scheme of the ISA, Parliament has not sought to define activities which are prejudicial to national security. Preventive detention relates to national security which is the responsibility of the executive. It is for the executive to determine as a matter of policy and judgment whether activities are prejudicial to national security.

51.       He continued by stating that it all boils down to the question whether the ISA was enacted to deal with only the threat of communism and nothing else. In Public Prosecutor v Lau Kee Hoo (1983)1 MLJ 157, where the question of whether the mandatory death sentence provided under section 57(1) of the ISA is ultra vires and violates Articles 5(l), 8(l) and 121(1) of the Constitution was referred to the Federal Court, Suffian LP in delivering the judgment of a  five member panel of that Court said that “The ISA is legislation against subversion expressly authorized by Article 149 of the constitution….True the ISA is designed to stop or prevent subversive action, but as a whole of it is valid and is still in force, it can be used as authority for prosecuting persons who have completed acts made criminal by the act, not only for stopping or preventing such acts”.

52.       In Public Prosecutor v. Yee Kim Seng (1983) 1MLJ 252, which by coincidence was decided at around the same time as Lau Kee Hoo’s case (supra) the High Court, where a similar question arose, declared that the ISA, with all the provisions therein, is perfectly valid and there is nothing in it which contravenes the Constitution.

53.       In Re Tan Sri Raja Khalid bin Raja Harun Inspector-General of Public v. Tan Sri Raja Khalid bin Raja Harun (1998) 1 MLJ 182, the High Court, after considering the lengthy affidavit of the police officer who arrested and detained the respondent under section 73(1) of the ISA, held that there was no evidence disclosed that the respondent had acted in any manner which is prejudicial to the security of the country and accordingly ordered the release of the respondent forthwith.

54.       The Supreme Court (Salleh Abas LP, Hashim Yeop A. Sani and Wan Hamzah SCJJ) in dismissing the appeal, pronounced that the ISA enacted under Article 149 of the Constitution is ‘legislation essentially to prevent and combat subversions and actions prejudicial to public order and national security”. It held that where a person who has been deprived of his liberty challenges the detention, it is for the authority to show that the person has been detained in exercise of a valid legal power. Once that is shown, it is for the detainee to show that the power had been exercised mala fide or improperly or made for a collateral or ulterior purpose.

55.       Almost immediately after, in dealing with the same point, the Supreme Court (Salleh Abas LP, Lee Hun Hoe CJ (Borneo) and Hashim Yeop A. Sani SCJ) in Theresa Lim’s case (supra) said “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.”.

56.       The learned Senior Deputy Public Prosecutor concluded that the above cases clearly show that the ISA is designed to stop or prevent subversive actions. As submitted earlier, the term “subversive activities” is broad and encompasses any activity designed to overthrow a government by force or other illegal means. There is nothing in the recital of the ISA to indicate the said Act is limited in its application to combat communist insurgencies only. Communist

threats may be relevant years ago but the changing circumstances show that other forms of subversive activities may surface at any time.

57.       Learned counsel for the appellants Christopher Leong in reply reiterated that it is beyond dispute that the purpose of the ISA and the intention of Parliament in passing the ISA Bill was to specifically deal with the communists and the threat they presented. No other acts or threatened acts by any other substantial body of persons were identified or addressed to Parliament at the material time. Parliament, therefore, is taken to have addressed its mind only to these acts and threats by this body of persons when enacting the ISA. The ISA was therefore enacted solely in respect of the communists and is thus restricted in its application and use to the communists. To apply the ISA thereafter for any other purpose would not only be unconstitutional and illegal but would, as earlier stated, be a breach of trust of Parliament.

58.       He added that it is clear from the press statement and the affidavits of the respective arresting officers that there is no allegation whatsoever that any of the five appellants are communists or that their detention under the ISA was because they were or are communists. Further, none of the various acts or threats stated in the said press statement are alleged to be communist acts or threats. In fact, the respondent confirms in paragraph 6 of his affidavit that the activities or acts described therein are in respect of the “Reformasi Movement”.

59.       He ended his submissions by saying that it is inconceivable that Parliament ever intended the ISA to be used against the “Reformasi Movement”. There was no such thing as the ‘Reformasi Movement” at the time Parliament deliberated on and subsequently passed the ISA. The specific acts, threats and substantial bodies of persons expressly stated and represented by the government, through the then Deputy Prime Minister, to Parliament were the acts and threats of the communists. As the mind of Parliament was never addressed to any other acts or threats by any other substantial body of persons, Parliament never gave its consent and cannot be deemed to have so consented in 1960 to the misuse of the ISA in this manner.

60.       It is my view, however, relying on the authorities cited, that the purpose and intent of the ISA is for all forms of subversion but was more directed to communist activities which was prevailing at the time the law was enacted. The long title and the preamble indicate that it is not confined to communist activities alone although the speeches in Parliament concentrated on that form of activity. I would, therefore, follow the ratio in Theresa Lim’s (supra) case and rule in favour of the respondent on this issue.

61.       Since the third point relates to section 73 of the ISA and the fourth point refers to the procedural requirements under that same section, I am of the opinion that they could be dealt with together.

62.       Malik Imtiaz Sarwar, who argued these grounds on behalf of the appellants, said that the elements of section 73(1) of the ISA were that the arresting and detaining police officer has “reason to believe” that there are grounds which would justify a detention under section 8 of the ISA under which the Minister would be satisfied that the detention is necessary with a view to prevent that person from acting, about to act, or likely to act, in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of essential services therein or to the economic life thereof.

63.       He submitted that the courts have a right to inquire into the existence of the grounds for the following reasons:

(a)        the elements set out are the jurisdictional threshold requisite to the exercise of the power of arrest. Only if the elements are fulfilled can the detaining authority be said to have the rights flowing from the section as held in Minister of Law and Order & Others v Pavlicevic (1989) SA 679 where the court said:

‘The issue may be stated thus: whether or not the evidence of Erasmus discharged the onus bearing upon the appellants of establishing that when Erasmus arrested and detained the detainee under s 29(1) he believed that the detainee had committed an offence referred to in para (a) of s 29(1) or was withholding information relating to the commission of such an offence; and that Erasmus had reasonable grounds for holding that belief. Or, as it is sometimes put, whether or not the jurisdictional fact or facts requisite to the exercise of the power of arrest and detention were shown to have existed.’;

(b)        In Re The Detention of S. Sivarasa & Ors (1997) 1 CLJ

471 where on an application for a revision of an omnibus remand order by the Magistrate, the High Court held that section 117 of the Criminal Procedure Code requires that there be “grounds for believing that the accusation or information” is well founded for the police officer to make his application for detention. These grounds are subject to judicial scrutiny. This being the case, it follows that a Magistrate ought not to give a remand order without his satisfying himself as to its necessity and that the period of remand ought also to be restricted to the necessities of the case. If the necessities of the case for remand or further remand are not shown, no remand order should be made;

(c)        it is a well recognised rule in the interpretation of statutes that the curtailment of the powers of the courts is, in the absence of an express or clear implication to the contrary, not to be presumed. The courts will therefore closely examine any provision which appears to curtail or oust the jurisdiction of courts of law citing Minister of Law and Order and Others v Harley And Another (1986) (3). 568;

(d)        there is no such ouster in relation to section 73(l) of the ISA as an ouster is provided only in section 8B of the ISA which by its express wording only applies to acts done or decisions made by the Yang di Pertuan Agong or the Minister. Section 8B of the ISA provides:

“8B. Judicial review of act or decision of Yang di Pertuan Agong and Minister.

(1)        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.

(2)        The exception in regard to any question on compliance with any procedural requirement in subsection (1) shall not apply where the grounds are as described in section 8A.”;

(e)        to say otherwise would be to make an unreasonable and unwarranted implication:

(i)         both sections 8 and 73 are clear and unambiguous;

(ii)        that there is only one “preventive detention” ultimately is irrelevant. The ISA expressly provides for that ultimate decision to be arrived at in two stages: the first under section 73, and the second, under section 8

(iii)       while sections 73 and 8 are connected, they are not “inextricably linked”. Both sections can operate independently of each other in that under section 73, no ministerial order is needed and •. under section 8, no police investigation is necessary. Nothing turns on the reference by section 73 to grounds under section 8. If it did, then no detention could take place under section 73 unless the Minister himself was satisfied, and the fact of this satisfaction was made known to the police. If this were the case, then there would be no need for section 73. Vitiation of section 73 would lead to vitiation of section 8;

the cases of Tan Sri Raja Khalid and Theresa Lim were wrongly decided on this point. In addition to the foregoing, the decisions were inherently contradictory in that if a subjective approach was required under section 73, it must be irrelevant whether or not evidence is disclosed to the courts;

furthermore, such privilege as the detaining authority may have as regards disclosure of evidence must not be confused with the issue of whether the court can or cannot inquire into grounds of detention. The fact that evidence is not disclosed does not mean that the court cannot inquire. Allegations of fact are as much evidence of matters taken into consideration as the grounds of detention.

64.       Learned counsel added that circumstances dictate that sometimes inroads must be made upon established principles of justice. The courts must adopt a strict approach in interpreting the ISA and must serve as a buttress between the executive and the individual.

65.       There is a clear difference, he maintained, in the wording of section

8(1) and section 73(1) of the ISA. For the former, the phrase used is “if the Minister is satisfied’ which makes it subjective. In the latter “has reason to believe” is objective.

66.       Learned counsel submitted that the court is therefore entitled to enquire whether there are grounds, or facts which give rise to, or form the basis of, the belief of the detaining officer, the reasonableness of the grounds, and whether

the procedural elements of section 73(1) of the ISA have been fulfilled. Only then is the onus shifted to the appellants.

67.       Section 16 of the ISA as regards the disclosure of information was also highlighted by learned counsel. The said section reads:

“16. Disclosure of information.

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”.

68.       Learned counsel said that the learned trial judge’s findings in relation to the issue of the non-disclosure was that the section was not limited to Chapter II in Part II of the ISA but also to Part IV under which section 73 was listed, that the right of non-disclosure under section 16 makes the test under section 8(l) and section 73(1) a subjective one, that the court can only examine the sufficiency of the reasons for detention under section 73(1) where the facts of a case are furnished voluntarily, exhaustively and in great detail. This means that the detaining authority must have disclosed all material facts. The test is in the event an objective one. In the event of a partial disclosure, the test would be a subjective one.

69.       Learned counsel attacked these findings on the grounds that section 16 of the ISA is of limited application and is of no relevance in so far as the detention under section 73 are concerned. Further, it is expressly stated to be applicable only in relation to Chapter II of the ISA.

70.       He continued by saying that to read it as applying to section 73 would be clearly contradicting the expressed intention of Parliament. In the same vein, Article 151(3) of the Constitution applies only in the context of Article 151 in view of the opening words.

71.       The respondent’s reply was that the court cannot inquire and should not inquire into the existence of these grounds because it is a subjective test. It is the police officers who decide, based on the information and the facts, whether the appellants acted in a manner prejudicial to the security of Malaysia and that the grounds justify the detention.

72.       In support, the case of Aminah v Superintendent of Prison. Pengkalan Chepa. Kelantan (1968) 1 MLJ 92 was cited where it was held that:

“The onus now lies upon the detainee to show that such power had been exercised mala fide. In this connection Basu’s Commentary goes on to say: -

“‘Bad faith’ in the present context has been interpreted to mean ‘malice in law’, i.e., inflicting a wrong or injury upon another person in contravention of the law, even though it may be without any malicious intention. Good faith is obviously wanting where there is a

‘fraud on the statute, i.e. a misuse of the statute for a collateral purpose or a purpose other than that for which it was intended, . or, in other words a ‘colourable use’ of the statute.

(a)        When the condition precedent required by the statute is objective, the existence or not of the objective condition or facts and circumstances can be tested by the courts, viz, whether the circumstances which called for the issue of the order existed in fact.

(b)        But where the condition is subjective, viz., the state of the mind of the authority issuing the order, “he is alone to decide in the forum of his own conscience whether he has a reasonable cause of belief, and he cannot if he has acted in good faith, be called onto disclose to anyone but himself that these circumstances constituted a reasonable cause and belief’ in other words, the existence of the circumstances which called for the order cannot be questioned by the courts in this latter (subjective) case, and the only question left to the court is whether the authority exercised the power in good faith. The court cannot undertake an investigation as to the sufficiency of the materials on which such satisfaction was grounded.

In a case of subjective satisfaction, the sufficiency of the grounds which gave rise to the satisfaction of the authority is not a matter for determination of the court, for, one person may be, though another may not be, satisfied on the same grounds.

Where the authority is empowered to make an order upon a subjective condition, i.e., a particular state of his mind, e.g., ‘on being satisfied’ or ‘having reasonable grounds for believing’ that certain facts exist - once an order asserting that state of mind and belief has been proved in a valid form, by production of a duly authenticated order, the onus is on the person challenging the bona fides of the order to disprove the existence of that state of mind. The onus is obviously more difficult than that of disproving an objective fact. Mere evidence of the applicant that he does not know that there are any reasons for the authority’s belief, or denial that there are or can be any reasons for it, is not a sufficient discharge of the onus so as to call on the authority to explain and justify the assertion of his order.”

73.       It was also the contention of the respondent that the matter concerns preventive detention the basis of which is not a legal charge and the evidence not legally admissible. Due to the nature of the information which forms the basis of the arrest and detention, it is not suitable for the courts to adjudicate on such matters. In Re Tan Sri Raja Khalid bin Raja Harun Inspector General of Police v Tan Sri Raja Khalid bin Raja Harun (supra) it was held that what section 13(1) of the ISA provides is that a police officer may arrest any person in respect of whom the officer has reason to believe there are grounds to justify the person’s detention under section 8 of the ISA and that person either has acted or is about to act in a manner prejudicial to the security of the nation. Section 73(l) and section 8 of the ISA are so inextricably connected that the subjective test should be applied to both. The court cannot require the police officer to prove to the court the sufficiency of the reason for his belief under section 73(1). It follows that the learned judge was in error when he said in his judgment to the effect that if there is evidence that the applicant has acted in a manner prejudicial to the security of the country, such evidence must be disclosed to the court to enable the court to be satisfied that the arrest and detention of the detainee under section 73 is justified in the circumstances.

74.       Similarly, in Theresa Lim’s case (supra), the Supreme Court said that it is clear from the provisions of the Constitution and the ISA that the judges in the matter of preventive detention are the executive. This is supported by Article 151(3) which says that the Article does not impose an obligation on any authority to disclose facts, whose disclosure would in its opinion be against the national interest.

75.       In Council of Civil Service Unions & Others v  Minister For The Civil Service (1985)1 AC 374, Lord Fraser of Tullybelton at pages 401 and 402 remarked:

“National security

The issue here is not whether the minister’s instruction was proper or fair or justifiable on its merits. These matters are not for the courts to determine. The sole issue is whether the decision on which the instruction was based was reached by a process that was fair to the staff at GCHQ. As my noble and learned friend Lord Brightman said in Chief Constable of the North Wales Police v Evans (1982] 1 W.L.R. 1155, 1173: Judicial review is concerned, not with the decision, but with the decision-making process.”

I have already explained my reasons for holding that, if no question of national security arose, the decision-making process in this case would have been unfair. The respondent’s case is that she deliberately made the decision without prior consultation because prior consultation “would involve a real risk that it would occasion the very kind of disruption [at GCHQ] which was a threat to national security and which it was intended to avoid.’ I have quoted from paragraph 27(i) of the respondent’s printed case. Mr. Blom-Cooper conceded that a reasonable minister could reasonably have taken that view, but he argued strongly that the respondent had failed to show that that was in fact the reason for her decision. He supported his argument by saying, as I think was conceded by Mr. Alexander, that the reason given in paragraph 27(i) had not been mentioned to Glidewell J. and that it had only emerged before the Court of Appeal. He described it as an “afterthought” and invited the House to hold that it had not been shown to have been the true reason.

The question is one of evidence. The decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts; the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security. But if the decision is successfully challenged, on the ground that it has been reached by a process which is unfair, then the Government is under an obligation to produce evidence that the decision was in fact based on grounds of national security. Authority for both these points is found in The Zamara [1916] 2 A.C. 77. The former point is dealt with in the well known passage from the advice of the Judicial Committee delivered by Lord Parker of Waddington, at p. 107:

“Those who are responsible for the national security must be the sole judges 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.”.

76.       Ultimately, it is the respondent’s contention that the most important consideration is the subject matter upon which the authorities are called upon to decide. It concerns national security which is the responsibility of the Government. Only the Executive knows the act of the individual or the body of persons which is said to be prejudicial to the security of the nation, threat to economic life and so on and so forth. It is because it is not suitable for the courts to look at the existence of those grounds or the sufficiency of them.

77.       It is submitted by the respondent that for a detention under section 73(l) of the ISA, the investigation is more important. The purpose of the detention is to interrogate not so much as regards the act committed but whether or not in future, the act may be committed in like manner and be a threat to the country. The investigations are not to confirm. This is different from a detention under section 117 of the Criminal Procedure Code (hereinafter “the CPC”) which is to confirm the commission of an offence and to obtain legally admissible evidence. Here, The investigation is to ascertain whether or not there is any basis for the Minister to make an order under section 8.

78.       The Senior Deputy Public Prosecutor Dato’ Azahar conceded that section 16 of the ISA does not apply because it refers to a different chapter. Section 16 refers to the non-disclosure of information in the national interest. He urged the courts to depart from Raja Khalid and Theresa Lim and say that section 16 is redundant as far as sections 73 and 8 are concerned. The reason for that proposition is that if the test is subjective, that means there is nothing for the courts to look into and the police are not obliged to disclose the reasons. Therefore, section 16 is effectively redundant.

79.       He reiterated that section 16 applies where the matter is proceeding before the Advisory Board and is only relevant for the hearings before that Board. Section 14 of the ISA provides the Advisory Board with powers that the courts here do not have. Section 16, therefore, only applies to those proceedings. This is a slight departure from Tan Sri Raja Khalid’s case. One cannot say it is a subjective test, he said, and then say that there is a requirement to disclose. The stand is that the courts cannot, except for section 8B, look into the grounds. It is submitted that section 16 is not really relevant unless there is something similar to section 14 giving the courts power to require the authorities to disclose.

80.       The gist of the respondent’s submissions suggest that the line of questioning adopted as alleged in the affidavits of the appellants was for the sole purpose of gathering information and evidence to determine whether the acts already committed would recur in the future. In fact, this point is conceded by both Senior Deputy Public Prosecutors Dato’ Azahar and Mohd. Yusof Zainal Abiden in their submissions in denying that the questioning was mala fide.

81.       This appears to go against the grain of section 73(1) of the ISA as the police officer arresting anyone under that provision must have reason to believe that that person is a threat to national security and not arrest him for the purpose of building a case against him with the intention of getting enough evidence to get the Minister’s order to detain him under section 8 of the ISA. All the appellants had affirmed in their affidavits that they were never told the reasons at the time the arrests were effected.

82.       The affidavits of the appellants seem to be in the same vein. Although the particulars are not exactly the same, the tenor of the questioning appears to hinge on irrelevancy and principally on matters which are not mentioned in the respondent’s press statement explaining the arrests.

83.       It is appropriate to refer to the press statement issued on 11th April 2001. The respondent’s press statement had stated that the arrests and detention of the appellants and two others was because information had been received concerning their involvement in activities which affects national security. It is necessary for the police to conduct a thorough investigation on the information received. The reformation activities which started in September 1998 planned to overthrow the government through street demonstrations held on a large scale and to prepare to carry out militant action by taking the following measures:

(a)        specific steps to obtain explosive items including bombs and grenade launchers;

(b)        using molotov cocktails, ball bearings and various dangerous weapons to attack the security forces so as to create a commotion during street demonstrations in and around Kuala Lumpur in October 1998;

(c)        obtaining assistance and support from martial arts leaders and informing ex-security officers and personnel to join their movement.

84.       To contain the said reformation movement’s militant trend, the police had taken action against 28 reformation activists under section 73(l) of the ISA from 24th  September 1998 up to 24th December 1998. The said police action had managed to control the situation temporarily.

85.       Further, the press statement states that in the middle of 1999, the reformation movement activists reappeared using as a front a political party where a number of the members had carried out activities which could create racial tension through religious and racial issues. This includes the dissemination of false and shocking information like allegations that many Malays have been converted to Christianity during the Lunas by-election. Militant methods such as threatening, intimidating and scaring the public and voters were also carried out by the reformation activists during that by-election.

86.       The press statement went on to say that at the end of the year 2000, the reformation activists had resolved to use these two approaches to achieve their goals. One is to continue to get involved in the normal process of democracy and the election system and the other though unconstitutional ways by holding large street demonstrations in militant fashion pending the general election in the year 2004.

87.       To ensure that their plans materialise, a secret group of more that twenty reformation activists had been formed in Kuala Lumpur. From 6th  January 2001 to 4th April 2001, twelve confidential meetings were held by this group to plan ways to influence the people to culturise militant street demonstrations and illegal assemblies. One of the important immediate plans of this reformation movement is to promote huge street demonstrations called “Black 14” in Kuala Lumpur on 14th April 2001. To confuse the security forces, the assembly was called ‘the assembly to deliver the people’s memorandum on human rights” whereby they planned to gather about fifty thousand people around Kuala Lumpur. This assembly and parade has the potential of turning into a riot.

88.       The concluding paragraph of the press statement states that it is clear that the reformation activists are willing to carry out activities outside the scope of the Constitution and the laws merely to achieve their goal. Therefore, action under section 73(1) of the ISA was taken because the police believe there are grounds to detain them under section 8 of the ISA for acting in a manner that could jeopardise national security.

89.       The respective five heads of the police interrogation teams who affirmed the affidavits in reply on behalf of the respondent did not really state that they were directly involved in the interrogation. Also, no particulars was forthcoming as regards the grounds of belief or the source of information. In essence, all the respondent’s affidavits in reply to the additional evidence allowed to be put in at the commencement of the appeals are in essence bare denials or that nothing can be said by virtue of section 16 of the ISA and Article 151(3) of the Constitution. The latter runs foul of the respondent’s concession that these provisions are not applicable to section 73 of the ISA. In fact Dato’ Azahar maintains that section 16 applies only to hearings before the Advisory Board under section 14 of the ISA.

90.       In effect, what we are left with are just the appellants’ affidavits which state that no questions were asked of the matters stated in the respondent’s press release. The numerous unexplained blanked out entries in the relevant lockup diaries which have been produced have also not been explained despite numerous enquiries from the Bench.

91.       Relying heavily on the cases of Tan Sri Raja Khalid, Theresa Lim and the Council of Civil Service Unions, the respondent maintains that the test is subjective. It is the appellants’ argument that the findings in both Tan Sri Raja Khalid and Theresa Lim are flawed as both cases went on the premise that section 8 and section 73 of the ISA are inextricably linked and consequently section 16 of the ISA and Article 151(3) of the Constitution applied which would have the effect of denying the courts the power to review the detention as they could not enquire into the evidence which led to the detention.

92.       In dealing with the Tan Sri Raja Khalid case (supra), M.P. Jain in his book “Administrative Law of Malaysia and Singapore Third Edition” remarked at pages 647 and 648 as follows:

“But, on appeal by the government, the Supreme Court took an extremely restrictive view of the scope of judicial review of preventive detention orders. It ruled that the test for the exercise of the executive discretion in such cases was subjective, and the court could not insist on evidence being given for the existence of the security aspects in the specific case as there was no obligation on the part of the concerned authority to disclose any evidence to the court. The court referred to article 151(3) of the Constitution under which the authority cannot be required to furnish facts whose disclosure would in its opinion be against national interest. It may, however, be argued that article 151(3) bars information from being disclosed to the detainee but not to the court. Article 151(3) obviously has reference to article 151(1) and (2) under which the detaining authority has to supply the grounds of detention to the concerned detainee. The court is under a constitutional obligation to be satisfied that the detention was lawful. This obligation has been placed on the court by article 5(l) and (2) of the Constitution. How is the court going to discharge this obligation if it is denied all relevant information. However, the Supreme Court did uphold the High Court decision quashing the detention order and issuing habeas corpus. Referring to the affidavit filed by the concerned authority the court ruled that it did not reveal any ground which could be relevant to security. The court expressed the view that while it could not ask for evidence, it could certainly take cognizance of what was stated in the affidavit.”.

93.       Two paragraphs later, he touched on the Karpal Singh’s case (supra) by stating the following:

In Malaysia. in Minister of Home Affairs v Karpal Singh (1988)1 MLJ 468, out of the several facts on which the detention order was based, one fact was entirely wrong and non-existent. The High Court quashed the order and issued habeas corpus saying that the order was made ‘without care, caution and a proper sense of responsibility’. However, the Supreme Court, on appeal, reversed the High Court and went to the extent of saying that preventive detention would not be illegal simply because the allegations of fact supplied to the detainee in pursuance of article 151(2)(1)(a) and section 11 of the ISA were ‘vague, insufficient or irrelevant. The court did not consider the full implications of article 151 which confers on the detainee the right of getting ‘facts and grounds’ from the detaining authority and of making ‘representation’. How can he make an effective representation if the facts supplied to him for his detention are vague, insufficient or irrelevant’? The Supreme Court drew a distinction between ‘facts’ and grounds’. The court argued that while the grounds of detention were open to challenge on the ground of not being within the scope of the law, allegations of fact upon which subjective satisfaction of the Minister was based were not. But then the question arises: how can the ‘grounds’ be right if the facts on which they are based are wrong. The point to emphasise is that subjective satisfaction to detain a person has to be based on real facts and not on imaginary facts,”.

Later, at pages 651 and 652, he said:

‘It may even be plausibly argued that a privative clause in a preventive detention law is unconstitutional vis-a-vis article 5(l) and (2) of the Malaysian Constitution. Article 5(1) insists that a person cannot be deprived of his personal liberty save in accordance with law. Therefore, obviously, it is the function of the court to ensure that no person is detained otherwise than in accordance with law. Therefore, no statutory provision can take away this power of the court whether a particular detention order is in accordance with the relevant law or not. To say that a detention order even though not valid under the law is, nevertheless, unquestionable in the court prima facie seems to be inconsistent with article 5(l) and (2) of the Malaysian Constitution.”.

95.       Sulaiman Abdullah for the appellants urged us to follow the subsequent trend in similar cases which now favours the objective test which would allow a greater check and balance on executive powers. Chng Suan Tze v The Minister of Home Affairs & Ors and other appeals (1989) 1 MLJ  69 decided by the Singapore Court of Appeal is a case on point.

96.       In Chng Suan Tze’s case (supra), it was submitted that the exercise of the discretionary power under sections 8 and 10 of the Singapore ISA is subject to the objective test and thus reviewable by a court of law and that to discharge this burden, the executive has to satisfy the court that there are objective facts in existence which justify the executive’s decision. It was held that the President’s satisfaction under section 8, and the Minister’s satisfaction under section 10, of the Singapore law are both reviewable by a court of law as the subjective test adopted in Karam Singh v Menteri Hal Ehwal Dalam Negeri, Malaysia (1949) 2 MLJ 129 and its progeny can no longer be supported and the objective test is applicable upon a judicial review of the exercise of these discretions. It was also held that although a court will not question the executive’s decision as to what national security requires, the court can examine whether the executive’s decision was in fact based on national security considerations; similarly, although the court will not question whether detention was necessary for the purpose specified in section 8(1), the court can examine whether the matters relied on by the executive fall within the scope of those specified purposes.

97.       In Karam Singh’s case (supra). a five member panel of the Federal Court in dismissing the appeal against the decision of the High Court dismissing the application by the appellant for a writ of habeas corpus held that:

(a)        the learned trial judge was correct in holding that the appellant’s detention had been made in the exercise of a valid legal power and therefore the onus lay on the appellant to show that such power had been exercised ma/a fide or improperly;

(b)        the defect, if any in the detention order in setting out the objects and purposes of the detention in the alternative was a defect of form only and not of substance, it did not show that the executive had not adequately applied its mind to the desirability of detaining the appellant and therefore did not invalidate the order;

(c)        the vagueness, insufficiency or irrelevance of the allegations of fact supplied to the appellant did not relate back to the order of detention and could not render unlawful detention under a valid order of detention; if, however, the appellant thought that the allegations were vague, insufficient or irrelevant, he should have asked for particulars; and

(d)        the question whether there was reasonable cause to detain the appellant was a matter of opinion and policy, a decision which could only be taken by the executive.

98.       In Honey and Another v Minister of Police and Others (1980 (3)) Tk Sc 800, it was held that the police could only rely on the protection of the ouster clause if they had complied with the necessary prerequisites. Since they had failed to do this, the court was accordingly entitled to enquire into the legality and validity of the arrest and detention. The onus was on the police to show on the probabilities that they had acted pursuant to the provision laid down in the law,

99.       In the Zimbabwean case of Minister of Home Affairs and Another v Austin and Another (1987) LRC (Const) 567, the Supreme Court was of the view that the detention order was defective in the information as to the reasons for detention. In drawing up the grounds of detention, it was incumbent upon the detaining authority to appreciate that the detainee must be furnished with sufficient information or particulars to enable him to prepare his case and to make effective representations before a review tribunal. A bare statement that the detainee was a spy was not good enough.

100.     It was also said that the expression in section 17(2) of the Regulations “if it appears to the Minister” did not exclude judicial review. In relation to the detainees, the detaining authority had a duty to act fairly and, in considering whether he had, the court had to determine questions of irrationality, procedural impropriety or illegality. Though section 17(2) was cast in subjective form, the Minister had to consider objective facts and the court could determine whether he had acted reasonably in doing so. There had to be sufficient information and facts to justify the Minister exercising his discretion to detain the respondents.

In Katofa v Administrator-General For South West Africa And Another (1985) (4) 211 SWA, the South West Africa Supreme Court, in dealing with the Proc AG 26 of 1978 (SWA) which deals with the presentation of internal security and the arrest and detention of persons believed to be threatening such security said:

As regards the question of what sufficiency of evidence is necessary for the discharge of the onus on a respondent in an application for an interdict de Iibero homine exhibendo, it had been contended for the respondent in the present matter that his ipse dixit was sufficient to discharge the onus. The Court, however, considered the wording of s 2(1) of Proc AG 26 of 1978, which required the Administrator-General to be satisfied that a person has committed or attempted to commit acts of violence or intimidation, before he issues a warrant for such person’s arrest and detention, and held that objective reasonable grounds has to exist to cause the Administrator-General to be satisfied and that he had to apply his mind to the consideration thereof. Furthermore, the Administrator-General is obliged to divulge these reasons to the Court to justify the detention and the Court is entitled to consider whether they do in law justify the detention - the mere ipse dixit of the Administrator-General would not be sufficient, for the Court would not be able to judge therefrom whether legal grounds for the detention did exist.’.

102.     In Rahman v Secretary Ministry of Home Affairs (Bangladesh) and Another (2000) 2 LRC 1, the Supreme Court in Bangladesh, in allowing the appeal challenging the detention of a former President of that country, said:

“(1)      Under the Constitution the Supreme Court exercised jurisdiction to scrutinise executive acts including orders of preventive detention, to determine whether a person was detained without lawful authority or in an unlawful manner. The law had never granted absolute power to either the government or the President to make detention orders. Moreover, the government’s satisfaction’ upon which a detention order was authorized by 3 (1) of the Act, was not immune from challenge or judicial review and the authority making a detention order could never justify it merely by saying that the action was taken in the interest off (sic of) public safety and public order: it had to satisfy the court that there were such materials on record as would satisfy a reasonable person to justify the order of detention. That approach to ‘subjective satisfaction was materially different from that taken by the courts of India. (see p.14, post). Baqi Baluch v Pakistan 20 DLR (SC) 249. Re Abdul Latif Mirza 31 DLR (AD) 1 and Re Sajeda Parvin 40 DLR (AD) 178 applied.

(2)        The grounds on which a detention order was made, under s 8 of the Special Powers Act 1974 had to be communicated to the person affected, had to be clear, precise, pertinent and not vague. Irrelevance, staleness or vagueness of the grounds was sufficient to vitiate a detention order. An order of preventive detention could be made under s 3 of the Act when the government was satisfied that the person was about to engage in a prejudicial act or acts and it was necessary to detain him for the purpose of preventing him from doing such act or acts. ‘Prejudicial act’ was defined, inter alia, in 2 (f) (iii) of the Act as any act which was intended or likely to endanger public safety or the maintenance of public order. In the instant case there was no indication in the first ground that E had been about to do something which was likely to endanger public safety or the maintenance of public order: he had not been debarred from seeking election nor was his party banned. It appeared that the government had passed the order of detention against E because it had been anticipating a threat to public safety and public order from the students in case their proposed protest march materialised, However, such an order could not be justified as a legal order passed under the Act because it was an order made to prevent others (and not E) from committing prejudicial acts. It followed that E had committed no crime or illegality in telling the BBC that he would start the election campaign for his party soon and that he had no regrets or excuses: nothing in the said utterances could justify an inference that E was about to engage in a prejudicial act or acts and consequently the order was liable to be declared to have been passed without any lawful authority. With respect to the second ground, since the order of detention had been passed on 11 December 1990 it was impossible on the part of the detaining authority to justify the order on the basis of the statements made on 16 December 1990 as the second ground was not before the detaining authority at the time the detention order was made. E’s detention on public safety and public order grounds was therefore unfounded, unlawful, mala fide and against all good conscience and democratic norms. It was done for a collateral purpose in order to create a hurdle to him in contesting the forthcoming parliamentary election. (see pp 5, 9-11, post). Re Abdul Latif Mirza 31 DLR (AD) 1, Shiv Prasad v State of MP AIR 1981 SC 870 and Mahmood v Bangladesh (1991) 43 DLR 383 approved.

(3)        The detention order was invalid also because, on its face, it showed that it had not been made in terms of s 3(1) of the Act, which authorized such an order where the government was satisfied that it was necessary to prevent a person ‘from doing any prejudicial act’. The order under review stated that the government was satisfied that the detention was necessary for maintaining public safety and public order’ but that was not a ground recognized by the Act for the making of such an order, The terms of the order itself therefore demonstrated that the authority had not applied its mind to the proper consideration which under s 3(1) was a condition to the exercise of the power to authorize detention. (see pp 11-12, 15-16, post). Dicta of Roy Choudhury J in Mahmood v Bangladesh (1991)43 DLR 383 applied.’.

103.     In Fifita and Another v Fakafanua (2000) 5 LRC 733, several legal issues arose on the appeal: one of which was whether the arrest had been justified under section 21 of the Police Act, which authorized a police officer to arrest without warrant a person whom he suspected on reasonable grounds of having committed an offence, It was decided by the Court of Appeal in Tonga in dismissing the appeal that the appellants had failed to justify the arrest of the respondent under section 21 of the Police Act because they had not discharged the onus of providing evidence to answer affirmatively the two relevant questions. Firstly, did the arresting officer suspect that the person arrested was guilty of the offence? The answer to this question depended entirely upon findings of fact as to the officer’s state of mind. Secondly, assuming that the officer had the necessary suspicion, were there reasonable grounds for that suspicion? This was a purely objective requirement. The dictum of Woolf LJ in Castorina v  Chief  Constable of Surrey (1988) (unreported) as cited in Archbold’s Criminal Pleading, Evidence and Practice (1993), Vol. I, paragraphs 15-144 was applied.

104.     In Matanzima v,‘ Minister of Police, Transkei and Others (1992)(2) SA 401 Tk GD, it was held that the purpose of an arrest and detention under and in terms of section 47 of the Public Security Act 30 of 1977 (Tk) is to interrogate the detainee. He cannot be detained for any other purpose and especially not to enable the police to continue and complete their investigations into a matter in connection with which he was detained. In the instant case the court held, on the return day of a rule nisi granted in an application for an order declaring the continued detention of the applicant’s husband to be unlawful and for his release from such detention, that the reasonable inference to be drawn from the respondents’ affidavits was that the applicant’s husband was being detained pending continued investigations into an attempted coup in which he was suspected of having been involved, that the release of the applicant’s husband would interfere with those investigations and that he would be interrogated as and when information was obtained in the course of those investigations. The Court held that such was clearly not the purpose of section 47 of the Public Security Act and that the continued detention of the applicant’s husband was therefore unlawful. The rule nisi was accordingly confirmed.

105.     In Minister of Law and Order and Others v Hurley and Another (supra) it was held that the words “he has reason to believe” in section 29(l) of the Internal Security Act 74 of 1982 imply that there must be grounds or facts which give rise to, or form the basis of, the arresting officers belief and it cannot be doubted that it was the Legislature’s intention that these grounds be reasonable grounds. When regard is had to the serious consequences such an arrest and detention have for the individual, it is inconceivable that the Legislature could have intended that a belief based on grounds which could not pass the test of reasonableness would be sufficient to provide justification for such arrest and detention. If the Legislature had intended that the question whether reasonable grounds existed for a belief as required by section 29(1) should be left entirely to the subjective judgment of the arresting officer, it would have used such language which made that intention clear as it had done in section 28(l)(a) which provided for a subjective test in the case of a decision by the Minister. Although situations might arise when the police would, for security reasons, not be able to disclose information which was available to them, it should not be assumed that this would frequently arise or that the police on such occasions would have to disclose all their information and this did not outweigh the considerations which indicated that the words “if he has reason to believe” should be construed as constituting an objective criterion.

106.     In Minister of Law and Order and Others v Pavlicevic (supra) the court on appeal found that the onus being upon the detaining officer, it was incumbent upon him to deal fully with all the elements of his decision and the grounds therefor, including the mental element of an offence under section 54(2) of the Act. As to the conduct element, there was no doubt that, on the information referred to in his affidavit, the detaining officer had had reasonable grounds for believing that in the course of the strike, acts had been committed which fell within one or more of the categories listed in the paragraphs of section 54(2) relied upon by him. As to the mental element, however, the court pointed out that the detaining officer had given no indication in his affidavit of the grounds upon which he had believed the mental element of the offence to have existed. On his own description of the strike as a sympathy strike, this had not been a situation in which the very facts themselves, or the nature of the conduct in question, considered in the light of the surrounding circumstances, proclaimed the acts constituting the conduct element as having been done with the intent to achieve one or more of the objects listed in paragraphs (a) to (d) of section 54(1). The appellants’ argument in support of such a construction failed for a number of reasons, among them being:

(a)        that the detaining officer in his affidavit never stated that that was the inference he had drawn;

(b)        purely on the information supplied by the detaining officer in his affidavit such inference could not reasonably be drawn in that, save that the physical violence accompanying the strike was unusually extreme, the pattern of conduct in the SATS strike did not appear to have been different from the general run of strikes in the present age;

(c)        the strike had lasted for less than three months and in terms of the settlement which ended it, all that had been ostensibly achieved had been the re­-employment of certain workers who had been dismissed during the strike and, seemingly, the improvement of hostel facilities, which appeared to have satisfied all concerned.

The court held that that seemed to negative the suggestion that the strike had had other objectives falling within the ambit of paragraphs (b) and (d) of section 54(l). The court held that, in any event, even if the detaining officer had adverted to the mental element of the offence said to have been committed under section 54(2), the facts recounted by him it, his affidavit did not disclose reasonable grounds for believing that the mental element had been present when the conduct said to constitute such offence had taken place. The appeal was accordingly dismissed.

107.     On the basis of these arguments and on a careful consideration of the authorities cited, I am more inclined to agree with learned counsel for the appellants that the test for section 73 of the ISA is objective and I was, therefore, placed in a position where I could enquire as to the reasons for the belief of the relevant arresting officers wh