Steve LK Shim CJSS:

The Issues

[1] On 8 November 2002, the Shah Alam High Court issued a writ of habeas corpus against the respondent ordering his release from a s 8 ministerial detention order. Dissatisfied, the appellants have appealed against that order. The notice of appeal filed on 9 November 2002 is signed by the attorney-general. The petition of appeal is dated 23 December 2002. Although the appellants, in their petition, have propagated 9 grounds, they have decided, not without some relief on our part, to proceed only on one ground. Still, it covers a wide berth and it states:

That the learned judge had erred in law when he had misdirected himself in deciding that the Minister's order of detention under s 8(1) as unlawful after having concluded that the detention by the police under s 73(1) was unlawful.

[2] Possibly because of its generality counsel for the appellants has advanced a number of what he calls reasons in support which are in reality more in the nature of propositions and they can, I think, be effectively compressed into two. They are:

(1) that the learned judge had no jurisdiction to hear the complaint against the detention order issued by the Minister under s 8 of the Internal Security Act 1960 (hereinafter referred to as "the ISA"):

(a) given the nature of the motion before him; and

(b) in view of the ouster clause in s 8B of the ISA.

(2) that the learned judge was wrong in holding that the legality or otherwise of a s 8 detention hinges on the detention under s 73 of the ISA.

The Factual Background

[3] The factual background relevant to these considerations can be briefly stated herein. The respondent, a fishmonger from Hulu Langat, Selangor, was arrested by the police in the wee hours of the morning on 17 April 2002, pursuant to s 73(1) of the ISA. On 15 May 2002, the respondent, through his lawyers, filed a notice of motion seeking, inter alia, an order that access to his lawyers be given pursuant to art. 5(3) of the Federal Constitution (hereinafter referred to as "the Constitution") and further or in the alternative, that he be released. On 11 June 2002, the High Court heard the application in respect of access to lawyers and granted an order in terms thereof. The High Court ordered that the lawyers be allowed to meet with the respondent at 2.30pm on 12 June 2002. That part of the application relating to habeas corpus was postponed to a later date. On 12 June 2002, the Minister issued a detention order under s 8 against the respondent. On 8 November 2002, the habeas corpus application was heard. The High Court allowed it and ordered the release of the respondent. As I said before, it is against that order that the appellants have now appealed.

Nature Of The Motion Before The Court

[4] It is, I think, essential to determine the thrust of the motion filed by the respondent. It is clear that at the material time when the motion was filed, the respondent was detained by the police under s 73 and the motion was directed at the police on the basis of that detention. It was only subsequently that the respondent was detained by the Minister under s 8 of the ISA. Not surprisingly, counsel for the appellants took umbrage; contending that it was quite improper to have cited the Minister in the said motion. Counsel took the view that the respondent ought to have filed a separate motion against his detention by the Minister. The point was raised by him in his preliminary objection before the learned judge but it was summarily rejected. The learned judge apparently held that the motion was sufficiently wide enough to cover a s 8 detention order and as such, he had jurisdiction to deal with it. Indeed, counsel for the respondent has gone further by stating that the parties had proceeded on the basis that the s 73 motion had been converted to one under s 8. This is reflected on p 4 in para 5.4 of his outline submission which reads:

On 14 June 2002, Encik Kamaluddin Mohd Said, who appeared for the Appellants, informed c