Ahmad Fairuz CJM:

[1] I am grateful to my learned brother, Abdul Malek Ahmad FCJ, for a sight of his judgment in draft before I wrote this judgment. I agree with my learned brother that two issues were raised by the counsel for the appellants. The first pertains to his contention that the arrest and detention of the appellants violated the first limb of art 5(3) of the Federal Constitution and consequently the arrest and detention were improper. As such the detention order under s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 (hereinafter referred to as "the Ordinance") should be set aside as the continued detention of the appellants is bad in law. The second is confined to only the first appeal and the issue concerns the signing by the Deputy Minister of Home Affairs of the detention order on 1 September 1999 but to take effect on 5 September 1999.

The First Issue: Article 5(3) FC Violated?

[2] The learned counsel for the appellants pointed out that the requirement to inform the grounds of arrest is not in the Ordinance. As such, the provision of art 5(3) FC must be read into the Ordinance. In support of his argument he referred us to, amongst others, the cases of Assa Singh v. Menteri Besar, Johore, [1969] 2 MLJ 30 and Aminah v. Superintendent of Prison, Pengkalan Chepa, Kelantan; [1968] 1 MLJ 92.

[3] Both the cases of Assa Singh and Aminah dealt with arrests and detention under the Restricted Residence Enactment (RRE). In his judgment the learned Azmi LP cited art 162(1) FC which is as follows:-

Subject to the following provisions of this art and art 163, the existing laws shall, until repealed by the authority having power to do so under this Constitution, continue in force on and after Merdeka Day, with such modifications as may be made therein under this art and subject to any amendments made by Federal or State law.

[4] The learned judge then referred to the case of B Surinder Singh Kanda v. The Government of the Federation of Malaya, [1962] 28 MLJ 169 wherein, the Privy Council, when considering the provisions of the Police Ordinance, inter alia, said:-

In a conflict of this kind between the existing law and the Constitution, the Constitution must prevail. The court must apply the existing law with such modifications as may be necessary to bring it into accord with the Constitution.

[5] Azmi LP then continued:-

As I said, the problem before us may be solved by reading into the Enactment the relevant provisions of the Constitution. This has been done in the case of Aminah v. Superintendent of Prison Pengkalan Chepa, Kelantan, where Wan Suleiman J expresses the following view, with respect, I would say, correctly:-

However, it would be absurd to suggest that the absence of any provision similar to art 5(3) would make the whole Enactment void. The proper approach is for the court to apply art 162(6) which reads:-

Any court, or tribunal applying the provision of any existing law which has not been modified on or after Merdeka Day under this art or otherwise may apply it with such modifications as may be necessary to bring it into accord with the provisions of this Constitution.

[6] On this issue, the learned Ong Hock Thye CJ (Malaya) said:-

... the validity or otherwise of the pre-Merdeka Restricted Residence Enactment will have to be considered solely by reference to art 162.

[7] On the same issue Suffian FJ said:-

Article 162 on the other hand provides that any pre-Merdeka law such as the Enactment shall continue in force on and after Merdeka Day. That is so even if it is inconsistent with the Constitution. It may, however, be repealed by the appropriate legislature. Until so repealed it may be modified without going to Parliament, simply by order of His Majesty within a period of two years beginning with Merdeka Day for the purpose of bringing its provisions into accord with the Constitution. If it has not been modified by His Majesty under art 162 or if it has not been modified otherwise, then