Abdul Hamid Mohamad FCJ:

[1] The appellant was detained at Pusat Pemulihan Akhlak, Simpang Renggam, Johor from 24 September 2003 under a detention order of the same date issued by the Deputy Minister of Home Affairs Malaysia ("the Deputy Minister"), the first respondent, pursuant to s 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ("the Ordinance").

[2] He applied for the issuance of a writ of habeas corpus, contending that the order was invalid on two grounds:

i) the Deputy Minister did not consider whether criminal prosecution ought to be taken against him;

ii) the ground of detention was stale and remote in point of law to support detention under the Ordinance.

[3] The learned judge dismissed the application. The appellant appealed to this court. We heard the appeal and reserved our judgment. This is our judgment.

[4] Before dealing with each of the grounds specifically, we think there is something more fundamental that covers both grounds that has to be dealt with first. This concerns the provisions of the Ordinance itself (and also other similar laws like the Internal Security Act 1960 ("ISA 1960") and the Dangerous Drugs (Special Preventive Measures) Act 1985 ("DD (SPM) Act 1985") at the relevant times when the cases referred to us were decided. Quite often, cases were cited and even decided without reference to the statutory provisions at the relevant time as if the statutory provisions had remained the same throughout and in so doing effect was not given to material amendments to the relevant statutes.

[5] Power to order detention is provided by s 4(1) of the Ordinance:

4. Power to order detention.

(1) If the Minister is satisfied that with a view to preventing any person from acting in any manner prejudicial to public order it is necessary that that person should be detained, or that it is necessary for the suppression of violence or the prevention of crimes involving violence that that person should be detained, the Minister shall make an order (hereinafter referred to as a "detention order") directing that that person be detained for any period not exceeding two years.

4

7C. Judicial review of act or decision of Yang di-Pertuan Agong and Minister

(1) There shall be no judicial review in any court of, and no court shall have or exercise any jurisdiction in respect of, any act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power in accordance with this Ordinance, save in regard to any question on compliance with any procedural requirement in this Ordinance governing such act or decision.

...

7D. Interpretation of "judicial review".

In this Ordinance, "judicial review" includes proceedings instituted by way of:

(a)...

(b)...

(c) a writ of habeas corpus; and

[8] Even though the words of ss 7C and 7D are clear, perhaps we should briefly look at the circumstances that had led to the amendments.

[9] One of the earliest if not the first case in which a detention order made under the Ordinance was challenged is the case of Che Su Shafie v. Superintendent of Prisons, Pulau Jerejak, Penang, [1974] 2 MLJ 19. The order was challenged on the grounds that, first, there was a failure to observe the full provisions of s 5(2)(b) of the Ordinance that requires the detainee to be furnished by