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2021 MarsdenLR 2725
HIGH COURT MALAYA MUAR
MOHAMED FITRY MUSA – Appellant
Versus
DEPUTY MINISTER OF HOME AFFAIRS MALAYSIA & ORS – Respondent
[Judicial Application Review No: JB-25-6-12/2020]
Judicial Review applications require strict adherence to procedural rules, which if not followed, render the application academic.
Headnote:(A) Dangerous Drugs (Special Preventive Measures) Act 1985 – Section 11A(1)(a)(aa) – Judicial Review – Applicant sought leave for judicial review against a Detention Order which was suspended – The applicant argued procedural non-compliance with overlapping detention orders and insufficient grounds in the Statement of Facts – The Court held that the requirements for leave were not met, and the matter was consequently academic. (Paras 41, 49-52)
Facts of the case: The applicant was detained under a previous Detention Order for a period of two years. An extension of this order was issued which the applicant challenged.
Findings of Court: The Court concluded that the application for leave for judicial review must comply with O 53 r 3, and since the Detention Order had been suspended, the application had no basis.
Issues: Whether the applicant complied with procedural requirements set for judicial reviews.
Ratio Decidendi: The court emphasized the necessity for strict compliance with procedural rules in applications for judicial review, deeming the application academic due to the suspension of the Detention Order.
Result: Leave for judicial review declined.
JUDGMENT
Introduction
[1] This is an application for leave for Judicial Review of the Extended Detention Order of the Applicant pursuant to s 11A(1)(a)(aa) Dangerous Drugs (Special Preventive Measures) Act 1985 which was suspended on 15 October 2020.
[2] The Attorney-General's Chambers is pursuant to O 53 r 4 Rules of 2012 is raising Preliminary Objection against the application for leave of Judicial Review.
[3] The Cause Papers are as follows:
i. Application for Judicial Review (Enclosure 1).
ii. Affidavit-in-support (Enclosure 2).
iii. Statement pursuant to O 53 r 3(2) (Enclosure 3).
iv. Supplementary Affidavit (Enclosure 7).
Background Facts
[4] The Applicant was detained under s 6(1) Dangerous Drugs (Special Preventive Measures) Act 1985 pursuant to a Detention Order ("1st Detention Order") signed by the Deputy Minister for Home Affairs (1st Respondent) with effect from 12 October 2018, for a period of 2 years. On 9 October 2020, an extension of the Detention Order was issued for a period of another 2 years ("2nd Detention Order"). This was done pursuant to s 11A(1)(a)(aa) .
[5] On the 15 October 2020, the Extended Detention Order was suspended with effect from 15 October 2020.
[6] The Applicant is now seeking leave to challenge the 2nd Detention Order on the grounds that there is procedural non-compliance because on the following grounds:
i. The over lapping of the 2nd Detention Order which took effect on 9 October 2020 with the 1st Detention Order which ended on 12 October 2020.
ii. The 2nd Detention Order is based on the same Statement of Facts which is found in encl 2 Exhibit A.
iii. The Statement of Facts failed to mention "substantial group of persons" and hence it violated art 149 Federal Constitution and this is the subject matter of the application for the Judicial Review of the Suspended 2nd Detention Order.
[7] The learned Senior Federal Counsel (on behalf of the putative Respondent) is raising an Objection against the Application on the following grounds:
i. The issue was not raised in the Application for Habeas Corpus when the 1st Detention Order was still in force.
ii. The overlapping of the 1st and 2nd Detention Orders resulted in 3 days less for detention and it operates in favour of the Applicant.
iii. The 2nd Detention Order has since been suspended and hence this application is premised on a suspended Order. Since Judicial Review is for the check and balance of the Detention Order, then the suspension of the Detention Order and the Applicant is placed under Restricted Residence Order, hence challenging the procedural compliance of the 2nd Detention Order is academic.
The Law In Respect Of Judicial Review
[8] Judicial Review is provided for under O 53 Rules of 2012.
[9] Historically, the basis for judicial review of acts and decisions of public authorities has been the doctrine of ultra vires of excess of jurisdiction. The role of the Court is to keep bodies within their allocated authority of jurisdiction. In judicial review, the Court is concerned with the decision-making process and not with the merits of the decision. Over the years, the scope of Judicial Review has expended to include "Patent error of law", "natural justice", and the rules of locus have liberalized (paraphrased from M.P Jain, Administrative Law of Malaysia and Singapore 3rd Edition pp 625-626).
Application For Leave
[10] Application for leave is make ex parte to a Judge in Chambers, supported by a statement setting out the name and description of the Applicant, the relief sought and the grounds on which it is sought', and by affidavits verifying the facts relied on. [Order 53 r 3(2)].
[11] Notice of the application for leave must be given to the Attorney General's Chambers not later than three days before the hearing date together with copies of the statement and affidavits. [Order 53 r 3(3)].
[12] In granting leave, the Judge may impose terms as to costs and to the giving of security [Order 53 r 3(4)].
[13] No grant of leave s
