Suffian LP :

These three appeals are against two judgements reported at [1977] 1 MLJ 39 and 82 and turn on the construction of Article 151(1)(b) of the Federal Constitution.

I have had the advantage of reading in draft the judgment of the Chief Justice, Borneo, and that of Ong FJ and with respect I agree that these appeals be allowed and wish to add only a few words.

At the material time Article 151(1)(b) read:

Where any law or ordinance made or promulgated in pursuance of this Part provides for preventive detention ... no citizen shall be detained under that law or ordinance for a period exceeding three months unless an advisory board ... has considered any representation made by him ... and made recommendations there on to the Yang di-Pertuan Agong.

The appellants were all subject to orders of detention made under s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance, 1969 ("Ordinance 5"), they made representations against the orders to the Advisory Board, but in none of them did the Board make recommendations thereon within three months of the detention orders, and yet thereafter His Majesty, acting on advice confirmed the detention orders.

In my view, it is clear that Article 151(1)(b) envisages two kinds of detention-

(i) detention for a period not exceeding three months; and

(ii) detention for a period exceeding three months.

In my view, it is also equally clear that while a citizen may be detained for a period not exceeding three months without any intervention on the part of the Board, he may not be detained for a period exceeding three months unless within that period the Board has considered his representations and made recommendations thereon to His Majesty. The article does not expressly say that the Board must so act within that period, but I think that the use of the words "has considered" necessarily implies that the intervention of the Board is a prerequisite.

It is true that in Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 1 MLJ 129 with reference to Article 5(1) which reads:

No person shall be deprived of his ... personal liberty save in accordance with law.

I drew a distinction between law and procedure and said in effect that the courts will take a serious view of failure to comply with substantive law but not of failure to comply with procedural law. But here the provision breached is not just procedural, but in my opinion substantive. In Karam Singh after the order of detention had been made against him, the Minister was required to do certain things, which Mr. Karam Singh complained the Minister had not done. Here, on the other hand, the condition for the detention of the appellants after the period of three months is fundamental; that condition had to be satisfied before the order could be made; it was a condition precedent. Before the appellants could be further detained beyond three months the Board must have made recommendations on their representations. That condition precedent has not been satisfied and in my judgment their continued detention after that period was therefore unlawful, since it was not, in the words of Article 5(1), "in accordance with law".During the course of arguments, we debated the case of a detainee submitting his representations late and within a few days of the Board meeting to consider them a member suddenly fell ill and the meeting had to be postponed, and therefore the Board was unable to make recommendations within the period of three months. It was submitted by Mr. Fong that in that event it could have been quite lawful to continue the detention beyond that period and that similarly the orders of detention here are also lawful. But here there is no evidence of anything like that happening and the case debated was only hypothetical, and I think that we should not pass an opinion on it, leaving the question open, and simply decide these appeals on the facts as they are.

As the continued detention after three months