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2010 MarsdenLR 2815
ZAKI TUN AZMI, GOPAL SRI RAM, MOHD GHAZALI YUSOFF
MURUGAN SUPPARAMANIAM – Appellant
Versus
TIMBALAN MENTERI DALAM NEGERI MALAYSIA – Respondent
Detention under the Emergency Ordinance is unlawful if the detaining authority fails to prove adherence to procedural safeguards, particularly the consideration of Advisory Board recommendations.
Headnote:(A) Emergency (Public Order and Prevention of Crime) Ordinance 1969 - Section 4(1) and Section 6(2) - Constitutional safeguard for detenu’s rights - Order of detention was deemed unlawful due to non-compliance with procedural safeguards outlined in Section 6(2) - The burden lies on the detaining authority to prove lawful detention. (Paras 2, 4, 5)
(B) Judicial Review - The exercise of discretion by the Yang di-Pertuan Agong regarding recommendations of the Advisory Board is final and not subject to judicial review, imposing imperative duties on authorities to ensure adherence to procedural requirements for detentions. (Paras 3, 4)
Facts of the case:
The appellant was detained under the Emergency Ordinance, and claimed violation of procedural safeguards as the recommendations from the Advisory Board were not duly considered, thus rendering the detention unlawful.
Findings of Court:
The detaining authority failed to prove compliance with the Ordinance requirements, leading to the order for the appellant's immediate release.
Issues: The key issues were the compliance of the detaining authority with the procedural safeguards and the burden of proof for lawful detention.
Ratio Decidendi: The court held that the first limb of Section 6(2) provides essential safeguards, and it is the detaining authority’s duty to prove adherence to the law regarding detention.
Result: The appellant's immediate release was ordered.
Gopal Sri Ram FCJ:
[1] We heard and allowed this appeal on 21 January 2010, directing the issue forthwith of habeas corpus. The reasons for our decision are now produced.
[2] The appellant detenu was detained pursuant to an order of the Deputy Minister of Home Affairs made under s. 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969 ("the Ordinance"). The order is dated 30 April 2009. The appellant then made representations which were considered and dealt with by the Advisory Board pursuant to art. 151 of the Constitution read with s. 6(1) of the Ordinance. The complaint here is that s. 6(2) of the Ordinance was not complied with thereby rendering the appellant's detention unlawful. To properly appreciate the nature of the complaint is best that we reproduce s. 6 in full. This is what it says:-
(1) Whenever any person has made any representations under section 5(1) to an Advisory Board, the Advisory Board, shall within three months from the date on which such representations were received by the Advisory Board, or such longer period as the Yang di-Pertuan Agong may allow, consider such representations and make recommendations thereon to the Yang di-Pertuan Agong.
(2) Upon considering the recommendations of the Advisory Board under this section the Yang di-Pertuan Agong may give the Minister such directions, if any, as he shall think fit regarding the order made by the Minister; and every decision of the Yang di-Pertuan Agong thereon shall, subject to the provisions of section 7, be final, and shall not be called into question in any Court.
[3]Section 6(2) is constructed in a bifurcated fashion. The first limb which states "Upon considering the recommendations of the Advisory Board" is imperative in terms. It imposes a duty on His Majesty, as a Constitutional Monarch, to address his mind to the recommendations of the Advisory Board. The second limb is permissive. It confers a discretion on His Majesty to give the Minister such directions as His Majesty shall think fit. And the exercise by His Majesty of the discretion vested in him by the second limb is put beyond judicial review. In our judgment the subsection in its imperative first limb provides an important procedural safeguard to detenus. For it provides for a procedural mechanism to further protect a detenu's rights.
[4] The burden of proving that the recommendations of the Advisory Board were in fact considered by His Majesty lies on the respondents. This flows from the settled principle that the burden of satisfying the court that a detention is in accordance with law lies on the detaining authority. Hence, in a preventive detention case where written law demands something to be done, the burden of proving that it was done lies on the detaining authority. Now, whether the recommendations were indeed considered by the Yang di-Pertuan Agong is an issue of fact that must be proved like any other fact by the person within whose sole and exclusive knowledge that fact resides.
[5] In the present instance the respondents in purported proof of the compliance of the first limb of s. 6(2) offered two diametrically conflicting explanations. The first respondent in para 14 of his affidavit dated 9 June 2009 says that His Majesty did in fact consider the Board's recommendations. However, this is contradicted by the Board's secretary who says that as at the date of her affidavit (dated 12 August 2009) there has been no response from His Majesty, the irresistible inference being that His Majesty is yet to consider the Board's recommendations. The principles governing the evaluation of affidavit evidence in a case of this sort have been set out by this court in SK Tangakaliswaran Krishnan v. Menteri Dalam Negeri, Malaysia & Ors and we do not wish to repeat what was there said. Suffice to say that in the face of this obvious conflict the respondents and in particular the first respondent must be held not to have discharged the onus upon him. We were ther
