MOHAMAD AMIROL SYAHMI BIN MOHD ROSLAN v 1. ) TIMBALAN MENTERI DALAM NEGERI MALAYSIA 2. ) PENGARAH PUSAT PEMULIHAN AKHLAK KLUANG, JOHOR

Case Significance

Illustrates the rigour with which the courts police the procedural preconditions to preventive detention under the Dangerous Drugs (Special Preventive Measures) Act 1985, and the readiness of habeas corpus to secure release where the statutory inquiry and reporting requirements preceding a detention order have not been observed.

This High Court decision at Kota Bharu concerns an application for a writ of habeas corpus challenging a preventive-detention order. The applicant had been detained under an order made by the Deputy Minister of Home Affairs under section 6(1) of the Akta Dadah Berbahaya (Langkah-Langkah Pencegahan Khas) 1985 (the Dangerous Drugs (Special Preventive Measures) Act 1985), and he applied for habeas corpus contending that the detention was vitiated by a series of procedural breaches in the statutory process leading to the order. The complaints went to the machinery of preventive detention. They included an alleged irregularity or breach of section 4 concerning the statement or recorded speech taken from the applicant; that the investigation report prepared by the police inspector under section 3(3) was incomplete; that there was a breach of section 5 because the Inquiry Officer had failed to call the applicant's sibling in preparing the report to the Minister; and that there was a breach of section 6(1) in the making of the detention order itself. Because preventive detention under the Act is an exceptional derogation from the personal liberty protected by Article 5 of the Federal Constitution, strict compliance with the procedural safeguards is a condition of the order's validity, and a material failure at any step going to the decision-maker's satisfaction can render the detention unlawful. The court found the applicant's challenge well founded, allowed the application and ordered that he be released, the decision being pronounced in open court. Delivered by Judicial Commissioner Mohd Rosli bin Yusoff, the judgment is a useful illustration of the rigour with which the courts police the procedural preconditions to preventive detention, and of the readiness of habeas corpus to secure release where the statutory inquiry and reporting requirements that precede a detention order have not been observed. It reflects the constitutional principle that the executive's power to detain without trial is confined by the very procedures Parliament has prescribed, so that a defect in the inquiry, the investigation report or the making of the order is not a technicality but goes to the lawfulness of the detention itself.