FOO YOKE KEONG v 1. ) TIMBALAN MENTERI DALAM NEGERI 2. ) PENGUASA, PUSAT PEMULIHAN AKHLAK SIMPANG RENGGAM, JOHOR 3. ) KERAJAAN MALAYSIA

Case Significance

Instructive on the ouster of judicial review over the merits of a preventive detention decision under section 11C of the Dangerous Drugs (Special Preventive Measures) Act 1985, and on the treatment of delay where no statutory time limit is prescribed.

This High Court decision at Shah Alam concerns a writ of habeas corpus challenging a preventive detention order under the Dangerous Drugs (Special Preventive Measures) Act 1985, and turns on whether a period for which the Act prescribes no time limit can be a mandatory procedural requirement. The applicant, arrested in June 2024, was made the subject of a detention order issued by the Deputy Minister of Home Affairs in August 2024 under section 6(1) of the Act, directing his detention for two years at a rehabilitation centre in Johor, and he sought habeas corpus against the Deputy Minister, the superintendent of the centre and the Government. He raised three issues, including whether there had been non-compliance with mandatory procedure, whether the detention order conflicted with Article 149 of the Federal Constitution, whether a discrepancy in the notation of the language of translation offended mandatory procedure, and whether there had been delay by the Deputy Minister in issuing the order under section 6(1). The court, per Roszianayati Ahmad J, dismissed the application. It emphasised that under section 11C of the Act there is no judicial review of an act done or decision made by the Yang di-Pertuan Agong or the Minister in the exercise of their discretionary power, save in regard to compliance with any procedural requirement of the Act, so that the court has no jurisdiction to review the merits of a discretionary decision. On the complaint of delay, it held, applying High Court authority including N Ramakrishnan P Nagasamy v Timbalan Menteri Keselamatan Dalam Negeri, that where the legislation prescribes no time period, timing is not a mandatory procedural requirement and the court cannot create a new rule or procedure, since the Minister is not required to decide immediately on receiving the reports; indeed an immediate decision might attract criticism for failing to give adequate consideration to them. Because the detention order had been issued within sixty days of the applicant's detention, it was valid and not defective, and the applicant's first issue was rejected. The court accordingly dismissed the application. The judgment is instructive on the ouster of judicial review over the merits of a detention decision and on delay where no statutory time limit is prescribed.