Ibrahim J:

In the Court below Dato' David Marshall with KL Devaser and Ranjit Singh appeared for the applicant; and Dato' Mohamed Salleh bin Abas (Solicitor- General) and Ajaib Singh (Senior Federal Counsel) appeared for the respondent. Ibrahim J delivered the following judgment on 23 November 1968:

JUDGMENT

Ibrahim J:

This is an application made under Ch XXXVI of the Criminal Procedure Code (Cap. 6) and Art. 5 (2) of the Constitution for an order that a writ of habeas corpus be issued to direct the respondent to produce the applicant before this Court and to show cause as to why the applicant should not be set at liberty forthwith on the grounds shown in the affidavit filed in support thereof.

The applicant was detained pursuant to an order made under s. 8 (1) (a) of the Internal Security Act No. 18 of 1960 and as required by s. 11 (1) of the said Act a copy of the order was served on the applicant on 18 May 1967. The order is in the following terms:

INTERNAL SECURITY ACT 1960

ORDER OF DETENTION

s. 8(1) (a)

To:

PEGAWAI YANG MENJAGA,

TEMPAT TAHANAN PERLINDONGAN KHAS,

BATU GAJAR

and to:

The Inspector General of Police, Royal Malaysian Police, all other police officers and all others whom it may concern.

Whereas the Yang di-Pertuan Agong is satisfied with respect to the undermentioned person that, with a view to preventing that person from acting in any manner prejudicial to the security of MALAYSIA/ the maintenance of public order therein/the maintenance of essential services therein, it is necessary to make the following order:

Now therefore, in exercise of the power conferred upon me by s. 8(1) (a) of the Internal Security Act, 1960, I do hereby by this order direct that the undermentioned person forthwith be detained for a period of

Two YEARS IN BATU GAJAH SPECIAL DETENTION CAMP or in such other place as I may from time to time direct.

Name of Detainee NRIC No SEL/7341 KARAM SINGH s/o KEHAR SINGH 4174445 K KARAM SINGH VERIAH SEAL

Sgd. TUN HAJI ABDUL RAZAK B HUSSEIN, MENTERI HAL EHWAL DALAM NEGERI MALAYSIA.

Dated this 17 May 1967 MHAY29/93/"

s. 8(1)(a) of the said Act reads as follows:

8.(1)If the Yang di-Pertuan Agong is satisfied with respect to any person that, with a view to preventing that person from acting in any manner prejudicial to the security of Malaysia or any part thereof or to the maintenance of public order or essential services therein, it is necessary to do so, the Minister shall make an order .

(a) directing that such person be detained for any period not exceeding two years.

By virtue of Art. 40(1) of the Constitution the Yang di-Pertuan Agong in the said s. 8(1) (a) meant the Cabinet.

The applicant raises a number of grounds challenging his detention. In Basu's Commentary on the Constitution of India, 5 Edn., Vol. 2, under the heading "Onus where imprisonment or detention is challenged" the following passage appears at p. 90.

"Where a person who has been deprived of his liberty challenges the detention by a petition for habeas corpus, it is for the authority who has detained him to show that the person has been detained in exercise of a valid legal power. Once that is shown, it is for the detenu to show that the power has been exercised mala fide or improperly."

I am satisfied that the detention of the applicant has been made in the exercise of a valid legal power. It has never been suggested that the Internal Security Act is ultra vires the Constitution or that the order on the face of it is not within the ambit of s. 8(1) (a) of the said Act. The onus therefore lies on the applicant to show that such power had been exercised mala fide or improperly.

Under the heading "When is an order mala fide" Basu at p. 153 of the same volume and edition of his Commentary says:

"An order of detention is mala fide if it is made tor a 'collateral' or 'ulterior' purpose, i.e. a purpose other than what the Legislature had in view in passing the law of preventive detention (i.e., preve