DALAM MAHKAMAH PERSEKUTUAN
( BIDANG KUASA
RAYUAN )
RAYUAN JENAYAH NO
05-38-2006 (J)
BETWEEN
KUMARAN SUPPIAH APPELLANT
AND
1. DATO’ NOH BIN HAJI OMAR
2. PENGUASA PUSAT PEMULIHAN AKHLAK
SIMPANG RENGGAM, JOHOR RESPONDENTS
( DALAM
PERKARA MAHKAMAH TINGGI
PERMOHONAN JENAYAH
NO MT3-44-64-2005
BETWEEN
KUMARAN SUPPIAH APPLICANT
AND
1. DATO’ NOH BIN HAJI OMAR
2. PENGUASA PUSAT PEMULIHAN AKHLAK
SIMPANG RENGGAM, JOHOR RESPONDENTS )
CORAM
AHMAD FAIRUZ SHEIKH ABDUL HALIM,
C.J.
ALAUDDIN MOHD SHERIFF, F.C.J.
AUGUSTINE PAUL, F.C.J.
JUDGMENT OF THE
COURT
The only issue for determination in
this appeal is whether a detention order made under section 4(1) of the Emergency
(Public Order and Prevention of Crime) Ordinance 1969 (“the Ordinance”) can be
made to take effect on a date subsequent to the date on which it was made.
The Appellant was ordered to be
detained for a period of two years with effect from
Before us learned
counsel argued that the detention order is invalid as it has been made to take
effect on a date subsequent to the date on which it was made. He said that it must be made to take effect
from the date it was made. This, he
said, is clear from the language of section 4(1) of the Ordinance which reads
as follows:
“If the Minister is satisfied that
with a view to preventing any person from acting in any manner prejudicial to
public order it is necessary that that person should be detained, or that it is
necessary for the suppression of violence or the prevention of crimes involving
violence that that person should be detained, the Minister shall make an order
(hereinafter referred to as a ‘detention order’) directing that person be
detained for any period not exceeding two years.”
Learned
counsel contended that the period of detention must commence on the date when
the Minister is satisfied of the need to make a detention order. In his submission the learned Deputy Public
Prosecutor said that there is nothing in section 4(1) of the Act to indicate
the date of commencement of the detention order. In support he referred to the judgment of the
(then) Supreme Court in Tan Hoon Seng v
Minister for Home Affairs, Malaysia & Anor (1990) 1 MLJ 171 where
Hashim Yeop Sani CJ (Malaya) said at pp 171 – 172:
“The power of the Minister to make a
detention order under the Act is conferred by s 6(1) of the Act. The power under s 6(1) of the Act is
expressly stated in the following terms, that is to say that whenever the
Minister after considering the report of investigation and the report of the inquiry
officer is satisfied that a person has been or is associated with any activity
relating to or involving the trafficking in dangerous drugs, the Minister may,
if he is satisfied that it is necessary in the interest of public order that
such person be detained, by order ‘direct that such person be detained for a
period not exceeding two years from the
date of such order’. (Emphasis added.)
The Act was passed by Parliament in
1985. Prior to the passing of the Act,
there were similar statutory powers of preventive detention in existence,
namely, the respective provisions in the Internal Security Act 1960 and the
Emergency (Public Order and Prevention of Crime) Ordinance 1969.
In s 8(1) of the Internal Security
Act 1960, the power to order detention or restriction of persons is expressed
in the following terms, that is to say that if the Minister is satisfied that
the detention of any person is necessary with a view to preventing him from
acting in any manner prejudicial to the security of Malaysia or any part
thereof or to the maintenance of essential services or to the economic life of
Malaysia, he may make a detention order ‘directing that that person be detained
for any period not exceeding two years’.
(Emphasis added.)
In the Emergency (Public Order and
Prevention of Crime) Ordinance 1969, there is a similar power of detention
contained in s 4(1) thereof where if the Minister is satisfied that with a view
to preventing any person from acting in any manner prejudicial to public order
it is necessary that that person should be detained, or that it is necessary for
the suppression of violence or the prevention of crimes involving violence that
that person should be detained, the Minister shall make an order ‘directing
that that person be detained for any
period not exceeding two years. (Emphasis added.)
It can be seen very clearly that the
later law, that is the Act (of 1985), deviated from the previous two
legislations on how the period of two years of detention shall be calculated.
The addition of the words ‘from the
date of such order’ must bear some significant meaning. It is clear from those words that the
material date for the commencement of the detention is the date when the order
is made and signed by the Minister. On
this construction, the period of two years must be calculated from the date
that the order was made and signed by the Minister and not any other date.
It is not permissible under s 6(1)
of the Act for the Minister to specify a different date from the date of the
order for the commencement of the detention unlike in the case of the previous
two legislations where the Minister may from the language of the relevant
provisions direct that a person be detained for a period not exceeding two
years from a date as may be specified by the Minister.
In other words, the words ‘from the
date of such order’ in s 6(1) of the Act must mean what they say, that is from
the date that the order is made and signed.
It is to be observed that the
legislature did not use words like ‘from the date in such order’ or ‘from the
date as may be specified in such
order’ for that would have given the power to the Minister to specify a
different date from the date of the order.
(Emphasis added.) The statute may
even be silent on the date of commencement as in the case of the two other
legislations referred to earlier.”
This
passage was adopted by this Court in Kam
Teck Soon v Timbalan Menteri Dalam Negeri Malaysia & Ors (2003) 1 MLJ
321. The learned Deputy Public
Prosecutor then referred to the preamble to the Act which reads as follows:
“AND WHEREAS the Yang di-Pertuan
Agong is satisfied that immediate action is required for securing public order,
the suppression of violence and the prevention of crimes involving violence;”
He then
referred to Re Tan Boon Liat (1976) 2
MLJ 83 where it was held that when the enacting part of a statute is explicit
and unambiguous the preamble cannot be resorted to in order to control, qualify
or restrict it. Thus, he said, as
section 4(1) of the Ordinance is clear in its meaning the preamble cannot be
resorted to in the interpretation of the section.
In our view the language of section
4(1) of the Ordinance is clear in its intent and purport. In substance it states that when the Minister
is satisfied of the existence of the conditions enumerated therein he shall
make a detention order directing that the person be detained for any period not
exceeding two years. There is no
indication, expressly or by implication, that the date of commencement of the
detention order must be the same as the date of making it. The section is silent on this requirement as
observed by the (then) Supreme Court in Tan
Hoon Seng v Minister for Home Affairs, Malaysia & Anor (1990) 1 MLJ
171. It is a rule of construction that
where the terms of an enactment are clear, precise and unambiguous it must be
applied and enforced according to its plain meaning and it is not the function
of the Court to speculate as to what might have been in the mind of the
enacting authority as it may appear to the Court from the preamble or otherwise
(see Badri Prasad v Ram Narain Singh AIR
1939 All 157).
The fact that section 4(1) of the
Ordinance is silent with regard to the time within which the detention order
must be made to take effect does not mean that the Minister has a complete
discretion in determining the date. Where
no time has been prescribed for the doing of an act in a statutory provision it
must be read with section 54(2) of the Interpretation Act 1967 (“section
54(2)”) which reads as follows:
“Where no time is prescribed within
which anything shall be done, that thing shall be done with all convenient
speed and as often as the prescribed occasion arises.”
In cases
such as Tai Choi Yu v Government of
Malaysia (1994) 1 MLJ 678 and Ex
parte Austco Pty Ltd (1985) 2 QD R 1 it was observed that what will be “all
convenient speed” will depend upon the facts and peculiar circumstances of each
case. As section 4(1) of the Ordinance
read with section 54(2) deals with preventive detention it must be strictly
construed. Thus the requirement as to
the time within which a detention order must be made to take effect must be the
same or as close as possible to the date of making of the detention order. Where both the dates do not coincide the
delay must be explained. This is in line
with the rule that any delay in a matter that must be done within a reasonable
time must be satisfactorily explained (see Bidya
Deb Barma v District Magistrate, Tripura AIR 1969 SC 323; SK
Salim v The State of West Bengal AIR 1975 SC 602; R v
Inspector of Taxes, Ex parte Clarke (1971) 3 WLR 425). The necessity for such an explanation must
therefore be read as a constituent part of section 4(1) of the Ordinance. In commenting on the need to comply with
statutory requirements in cases of preventive detention Lee Hun Hoe CJ (Borneo)
said in Re Datuk James Wong Kim Min (1976)
2 MLJ 245 at p 251:
“Preventive detention is, therefore,
a serious invasion of personal liberty.
Whatever safeguard that is provided by law against the improper exercise
of such power must be zealously watched and enforced by the court. In a matter so fundamental and important as
the liberty of the subject, strict compliance with statutory requirements must
be observed in depriving a person of his liberty. The material provisions of the law
authorising detention without trial must be strictly construed and safeguards
which the law deliberately provides for the protection of any citizen must be liberally
interpreted. Where the detention cannot
be held to be in accordance with the procedure established by the law, the
detention is bad and the person detained is entitled to be released forthwith. Where personal liberty is concerned an
applicant in applying for a writ of habeas
corpus is entitled to avail himself of any technical defects which may
invalidate the order which deprives him of his liberty. See Ex
parte Johannes Choeldi & Ors (1960) MLJ 184.
One of the functions of the courts
is to interpret the law. An inherent
part of their function is to see that the executive acts within the law and
does not encroach unnecessarily into the realm of liberty of the subject. In fact, Article 5(1) of the Constitution
guarantees that ‘no person shall be deprived of his … liberty except in
accordance with the law.’ If this
constitutional guarantee is to have any real meaning at all, then it is
imperative that the courts should intervene whenever the liberty of the subject
is encroached upon not in accordance with the law.”
The
case of The Reverend Thomas Pelhma Dales’
case (1881) 6 QBD cited in Re Tan
Boon Liat (1977) 2 MLJ 108 makes it clear that the steps taken to detain a
person must be entirely regular. Thus
where there is a delay in the date of commencement of a detention order the
requirement of an explanation for the delay must have been complied with. A failure to provide any reason to explain
the delay in the effective date of a detention order will thus mean that there
has been a breach of section 4(1) of the Ordinance. As the detention order in this case was made
on
None of the affidavits affirmed by the
Respondents contain any explanation for the delay. The Deputy Minister of Internal Security made
an attempt to do so in paragraph 8 of his affidavit. It reads as follows:
“Merujuk kepada afidavit pemohon
saya ingin menegaskan bahawa penahanan pemohon yang bertarikh diantara
17.12.2004 hingga 26.12.2004 adalah sah kerana ia mematuhi peraturan dibawah
akta tersebut.”
This is
only an explanation for the detention of the Appellant from
The resultant matter for consideration
is whether the breach of section 4(1) of the Ordinance in failing to explain
the delay is one that is subject to judicial review. The scope of judicial review under the
Ordinance is governed by section 7C(1) which reads as follows:
“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
Ordinance, save in regard to any question on compliance with any procedural
requirement in this Ordinance governing such act or decision.”
This
section is in pari materia with
section 11C(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985
which was considered by this Court in Muhammad
Jailani bin Kasim v Timbalan Menteri Dalam Negeri, Malaysia & Ors (Federal
Court Criminal Appeal No 05-34-2006 (J)) in the following words:
“The effect of a breach of such
procedural requirements had been considered in a number of cases. See, for example, Puvaneswaran v Menteri Hal Ehwal Dalam Negeri Malaysia & Anor (1991)
3 MLJ 28; Low Teng Hai v Menteri
‘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.’
It is clear that the section restricts
judicial review to only questions on compliance with any procedural requirement
governing any act done or decision made by the Yang di-Pertuan Agong or the
Minister in the exercise of their discretionary power. Such procedural requirements can only be ones
that will go to the root of the matter and be of direct relevance to the making
of the detention order. The section only
refers to a question of compliance with procedural requirements without
subjecting it to any prejudice having been suffered. The test, therefore, in determining whether a
breach can be subjected to judicial review is whether it is in compliance with
any procedural requirement governing 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 the Act without the need to establish any prejudice. Such a determination will be greatly
facilitated, though not decisively, by a consideration of the effect of the
statutory provision that has been breached, that is to say, whether it is
mandatory or directory in nature.”
This
passage was adopted by this Court in Timbalan
Menteri Keselamatan Dalam Negeri, Malaysia & Ors v Ong Beng Chuan (Federal
Court Criminal Appeal No
The decision to detain a person for a
specified period under section 4(1) of the Ordinance is, without any doubt, a
matter dealing with the discretion of the Minister and so it cannot be subject
to judicial review pursuant to section 7C(1) of the Ordinance. Similarly the making of a detention order
with a delayed date of commencement is again a decision made by the Minister in
the exercise of his discretion and thus cannot be subject to judicial
review. However, as stated earlier, the
need to explain a delay in the date of commencement of a detention order is a
constituent part of section 4(1) of the Ordinance. It is a condition precedent to the making of
a detention order in such a situation. There
must therefore be in existence an explanation in such cases before the making
of the detention order. It must be
observed that the sufficiency of the explanation cannot be the subject of
judicial inquiry as it is a matter within the discretion of the Minister. That, however, cannot be said of the
availability of the explanation itself at the time of the making of the
detention order. As the explanation is
not the decision itself but only a part of the decision making process it is a
matter of procedure, and, a very significant one. Since it is a condition precedent to the
making of the decision by the Minister to have a delayed date of commencement
of the detention order it is a procedural requirement governing such decision. The question of whether this requirement has
been complied with is thus subject to judicial review. As explained earlier no explanation has been
offered in this case for the delay in the commencement of the detention
order. This amounts to non-compliance
with a procedural requirement governing the making of the detention order. The order is therefore invalid.
Accordingly, we allow the appeal.
Date:
Sgd
( DATO' AUGUSTINE PAUL )
Judge
Federal Court
Counsel:
For the Appellant: Gobind
Singh Deo
Solicitors: Messrs
Karpal Singh & Co
Advocates
& Solicitors
GM
03, Menara TJB
No
9, Jalan Syed Mohd Mufti
80000
Johor Bahru
For the Respondents: Najib
Zakaria
Pejabat
Penasihat Undang-Undang
Kementerian
Keselamatan Dalam Negeri
Pusat
Pentadbiran Kerajaan Persekutuan
62546
Putrajaya