DALAM MAHKAMAH TINGGI MALAYA DI SHAH ALAM

DALAM NEGERI SELANGOR DARUL EHSAN

PERMOHONAN JENAYAH NO. 44-63-2007 BERSAMA
44/64/2007

DI ANTARA

1. LOGESWARAN A/L RETHINAM

2. PUSPARAJAN A/L RAMAYAH

LAWAN

1. TIMBALAN MENTERI KESELAMATAN DALAM

NEGERI, MALAYSIA
2. PENGUASA, PUSAT PEMULIHAN AKHLAK,
SIMPANG RENGGAM, JOHOR DARUL TAKZIM
3. KETUA POLIS NEGARA, MALAYSIA

Dated: 20th August 2008

Abang Iskandar bin Abang Hashim JC:

These have been applications by the 2 above-named

Applicants for a writ of habeas corpus be issued in favour of each
of them so that they be released from their detention pursuant to
the respective detention orders [‘the said DOs’] issued by the
Timbalan Menteri Keselamatan Dalam Negeri, Malaysia [‘ the said
TMKDNM’]. These applications had been heard together before
me as their learned Counsel En.T. Suresh [‘the learned Counsel’]

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told this Court that they involved the same grounds alleging that
the said DOs were bad in law and must therefore be set aside. The
learned Senior Federal Counsel En. Najib bin Zakaria [‘the learned
SFC’] though agreeing that the 2 applications be heard together,
had nevertheless at the same time, begged to differ on the issue of
the alleged invalidity of the said DOs.

The said DOs in these cases have been issued by the

TMKDNM against Logeswaran[ the said ‘Loges’] on the 18th
Januari 2007 and against Pusparajan[ the said ‘Puspa’] also on the
18th January 2007. Both the said DOs were issued under section
4(1) of the Emergency(Public Order and Prevention of Crime)
Ordinance 1969 [‘the said EOrd1969’] as the TMKDNM was
satisfied that their detention was necessary within the context of
the said section as they were together involved in an armed
robbery (using a parang) against a woman. Pursuant to the said
DOs, both these Applicants were detained at the Pusat Pemulihan
Akhlak Simpang Renggam, in the State of Johore, [the ‘PPASR’]
for a period of 2 years respectively.

As the issues raised and heard before this Court were

identical in both applications, the parties had agreed before me
that the rulings or decisions of this Court on the three (3) issues
raised by learned Counsel would bind all parties in both these two
applications, namely cases nos:44-63-2007 and 44-64-2007.

The issues that were raised by learned Counsel have been:

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(1) That there was a contradiction as to when these
Applicants had ceased to be in the custody of the
police;

(2) That the Respondents had failed to show that the

Chairman of the Advisory Board hearing the
representations of both these Applicants was properly
qualified and/or appointed to such post; and; and,

(3) That there had beeen a non-compliance by the

Advisory Board of Rule 10 of the (Procedures) Rules
1972 [‘the said Rule 10’] issued by His Majesty the
King under the said EOrd1969.

I shall now deal with these issues accordingly, in turn.

(1) That there was a contradiction as to when these

Applicants had ceased to be in the custody of the police.
This issue arose because there existed 2 affidavits
coming from two(2) police officers who had stated therein
facts which apparently showed a contradiction with
respect to whether the Applicants were still in the custody
of the police after the DOs were issued by the Deputy
Minister on the 18th January 2007. First, there has been
the affidavit by SAC II Lau Hong Soon [Enclosure 11] who
had averred therein, that on the 18th January 2007, these
Applicants had ceased to be in the custody of the police,
as by then the police had completed its investigations and
that it had no further reason to detain them as by then the

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Deputy Minister had made the necessary orders as
appropriate, as per paragraph 10 therein. Secondly, there
has been the affidavit of Inspector Abdul Aziz bin Setafa
[Enclosure 6] who had averred that he was given custody
of these Applicants on the night of the 18th of January
2008 for onward transportation to the rehabilitation facility
at Simpang Renggam, Muar, Johore from the Police
Station in Hilir Perak District, Perak. Indeed, these
Applicants were handed over to the said PPASR
authorities at the said facility on the 19th of January 2008,
as was supported by the affidavit of it’s Superintendant,
as per paragraph 11 of his affidavit. So, it was quite
apparent that there seemed to be a contradiction between
the two contents of the affidavits, as was observed by the
learned Counsel. However, this Court agreed with the
submissions made by the learned SFC which would put
the apparent contradiction in its proper perspective.
According to the learned SFC, these Applicants were still
with Inspector Abdul Aziz and were thus under his
custody, hence under police custody instead of in the
custody of the authority at PPASR on the 19th of January
2007 because of the fact that these 2 Applicants had to be
transported from Hilir Perak Police Station. The DOs had
also clearly named the police as well as the authority of
PPASR as addressees in the said DOs. As such the
apparent contradition could be and should be appreciated
in the light of what had transpired with respect to the
custody of these 2 Applicants after the 18th of January
2007. This is not a question of who between SAC II Lau

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Hong Soon and Inspector Abdul Aziz was to be believed
on this matter. Rather, the respective affidavits affirmed
by each of them related to different events. I find as a fact
that when SAC II Lau said that by the 18th January 2008,
these 2 Applicants were no longer under police custody, it
was made with the realisation that police had finished with
its investigations into the cases involving them that
therefore the police had no further need to have custody
of the Applicants. Indeed, it has to be viewed in the light of
what he had said in paragraph 4 of his affidavit [Enclosure
11] where he had affirmed thus: “Saya adalah Pegawai
yang di tetapkan oleh Ketua Polis Negara mengikut
peruntukan di bawah Seksyen 3(3)(c) Ordinan Darurat
(Ketenteraman Awam dan Mencegah Jenayah) 1969
(selepas ini dirujuk sebagai Ordinan tersebut) untuk
menerima laporan hal keadaan penengkapan dan
penahanan orang yang ditangkap di bawah Seksyen 3(1)
Ordinan tersebut dan melaporkan perkara yang sama
kepada Menteri Keselamatan Dalam Negeri Malaysia.”

From the above it is clear that SAC II Lau’s role was

limited only upto that point in time when he had referred
the cases involving these 2 Applicants to the Minister of
Internal Security, Malaysia. For that matter therefore, his
averment as contained in paragraph 10 in his affidavit
must need be appreciated in the context of his role in
these cases. As such, when he said therein that these 2
Applicants were no longer in the custody of the police he
was stating a fact which to his knowledge ought to have

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 been the case as these Applicants had by then been
placed under the DOs, thus should in all probability be
under the custody of the authority at PPASR, Johore. But
as it had turned out, these 2 Applicants were still under
the custody of Inspector Abdul Aziz for the purpose of
sending them to the PPASR Muar, Johore. When SAC II
Lau affirmed his affidavit [Enclosure 11], it is clear that he
was not in the know that Inspector Abdul Aziz was
actually still having custody of these 2 Applicants until the
19th of January 2007. In the event therefore, to my mind,
the resulting apparent contradiction that had arisen
therefrom had been explained away satisfactorily by the
Respondents. On that score, I find that this ground of
complaint has no merit.

(2)That the Respondents had failed to show that the

Chairman of the Advisory Board hearing the
representations of both these Applicants was
properly qualified and/or appointed to such post.
The issue on the qualification and appointment of the
Chairman of the Advisory Board had been premised on
the argument forwarded by learned Counsel that the onus
must lie with the Respondents to prove that everything
done in relation to the DOs, must have been done legally
and properly. This issue was couched in paragraph 34 of
Enclosure 3 of both these Applicants, like so: “Saya juga
sesungguhnya percaya bahawa Lembaga Penasihat yang
mendengar representatasi saya bukanlah satu Lembaga
yang sah dan Pengerusi Lembaga bukan seorang yang

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berkelayakan selaras dengan Perkara 151(2)
Perlembagaan Persekutuan” The Secretary as well as
the Chairman of the said Advisory Board had responded
to this averment to the effect that the Chairman and the
Advisory Board were properly appointed and constituted
as required by the law and that the respective appointing
instruments were previleged documents which could not
be divulged. The further affidavits by the 2 Applicants
[Enclosure 17] had averred that the failure to append
those documents was fatal and thereby indicating that the
Respondents had failed to prove that the Advisory Board
and the Chairman were properly appointed and
constituted. Looking at the said paragraph 34 in Enclosure
3, one must be hard-pressed to ask the following
question: “What has been the basis for such belief on the
part of the 2 Applicants to cast aspersion on the propriety
of the appointment of the Chairman and the constitution of
the said Advisory Board? What evidence is there in their
affidavits-in-support and further affidavits on the matter for
them to harbour such belief? Having considered the
contents of the relevant affidavits on this matter, I am of
the considered view the said paragraph 34 of Enclosure 3
had been an encapsulation of what has amounted to a
mere fishing expedition embarked upon by these 2
Applicants. Indeed, paragraph 13 has stood as it was,
without containing in it particulars upon which the so-
called belief [“saya juga sesungguhnya percaya”] had
been premised. Even if there might have been a hunch of
the alleged impropriety regarding the said impugned

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 appointment of the Chairman and/or the constitution of the
Advisory Board, what was the hunch? Nothing of that sort
was ever articulated or pleaded in this parargraph or
anywhere else in the said affidavits of these 2 Applicants
apart from the allegations as to the said impugned
appointment. As such, it is my finding that such averments
as contained in paragraph 34 have been mere bare
assertions and there have been nothing to substantiate
the same. In a proceeding of this kind, the legal maxim,
“one who alleges must prove” is very much relevant and
very much in play. For the Respondents to even seriously
respond to this kind of averments as contained in
paragraph 34, there must be in the same averments by
the said Applicants, facts tending to support the said
averments. In these cases, there had been none
forthcoming from both the Applicants. As such, the replies
by the Chairman and the Secretary of the Advisory Board
have more than amply addressed the ‘concerns’ raised by
these 2 Applicants. As such, the question of producing the
appointing instruments does not arise at all. Such being
the case, this ground must also fail.

(3) That there had beeen a non-compliance by the Advisory

Board of Rule 10 of the (Procedures) Rules 1972
[‘the said Rule 10’] issued by His Majesty the King
under the said EOrd1969.

The issue of there being a non-compliance of Rule 10(2)

of the (Procedures) Rules 1972 was in relation to the

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refusal by the Advisory Board to allow these Applicants to
call the Investigating Officer in their respective cases to be
examined by them at the hearing of their respective
representations before the Advisoy Board. In their
respective affidavit marked as Enclosure 3, each of the
Applicants had said: “...Saya telah kemudian meminta
agar pegawai polis yang menyiasat kes saya dapat hadir
supaya saya dapat menyoal beliau berhubung dengan
keterangan terhadap saya tetapi ini telah ditolak..”. The
Applicants had cried foul over this refusal and complained
that they had been denied a fair hearing. The affidavit
[Enclosure 12] of the Secretary of the Advisory Board had
stated that the Board had exercised its discretion on the
matter when refusing to accede to the said request of
these Applicants. To this, learned Counsel had submitted
that such exercise of discretion under the said Rule 10(2)
ought to have been couched upon consideration(s) of
national security interest and that in these cases it had not
been specifically stated what was the basis for invoking
the discretion in Rule 10(2) to deny these Applicants of
their right to call the Investgating Officer to be examined
by them. The learned Counsel had also submitted that
even if the national interest consideration was relevant in
these cases, the Respondents had not sufficiently shown
how those elements could have come into play in these
cases involving both these Applicants. The case of
Sugumaran a/l Kannan v TMKDNM (Kes Permohonan ,
Mahkamah Tinggi Johor Bahru No:44-25-2006) was also
cited in support by the learned Counsel, where mere

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incantations of national security had been ruled to be
insufficient to convince and to move the Court to draw an
inference that national security was under threat. In the
cases before me, it was submitted by the learned Counsel
that there was no reason given by the Board, apart from
citing that Rule 10(2) applied. The learned SFC had
argued that the subjective decision of His Majesty the
King and the Minister under this legislation would of
necessity extend to the Advisory Board as the Board was
a delegate of His Majesty the King. He said that the case
of Sugumaran [supra] could be distinguished on the facts.
He then cited the case of Gunasegaran a/l
Ramachandran lwn TMKDNM & 2 lagi
[MahkamahTinggi Shah Alam, Permohonan Jenayah No:
44-217-2007] where the Court in that case had ruled that
the refusal by the Advisory Board to supply a copy of the
notes of proceedings on application by the detainee there
on the stated ground of national security was a decision
which was not justiciable on the ground that it was caught
by the embargo under Article 151(3) of the Federal
Constiution and section 11 of the EOrd1969. In other
words, once the discretion under Rule 10(2) was invoked
by the Advisory Board, it was not open to the Court to
review its properness or appropriateness. Put simply, that
discetion was absolute. Indeed, in Gunasegaran’s
case[supra], the learned Justice Zaharah Ibrahim was
very well aware of how tenuous such argument was, but
at the same time, she was equally well aware that the
moment that discretion was invoked under Rule 10(2) by

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the Advisory Board, the dual embargo under the said
Article 151(3) of the Federal Constitution and section 11
of the EOrd1969 were simultaneously triggered off and
whatever semblence of a window that may appear to exist
for the Court to review the same was effectively shut out
as a matter of course. The perplexity that was apparent in
the learned Justice Zaharah Ibrahim J’s mind on the
matter could be seen quite clearly when she had
observed in the said Gunasegaran’s case [supra], thus:
“ 20. Saya perhatikan bahawa terdapat kecenderungan
untuk terlalu bergantung pada Perkara 151(3)
Perlembagaan Persekutuan dan seksyen 11 Ordinan
walaupun sebenarnya fakta yang diminta didedahkan
tidak mungkin dapat dikatakan sesuatu yang
bertentangan dengan kepentingan negara.” and “ 21.
Bagaimanakah catatan tentang sama ada seseorang
tahanan ada ditanya atau tidak sama ada dia diwakili oleh
peguam, atau sama ada dia mahu prosiding ditangguhkan
atau tidak bagi maksud perlantikan peguam,dapat
dikatakan sebagai bertentangan dengan kepentingan
negara?”
However, after looking at the said Article 151(3) of the
Federal Constitution, the ultimate answer to the question
as posed by her and indeed as had been answered by
her, had become inevitable.

Now, looking at the submissions by both parties on this

issue before me, I am of the view that if, by calling the
Investigating Officer facts would be disclosed that would,

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in the mind of the Advisory Board, impact adversely on
national security, that would be the end of the matter. In
the case before me, the Advisory Board had decided that
by calling the Investigating Officer for examination by
these 2 Applicants would pose as a threat to national
security. That being the case, the matter must end there
as well. When faced with the issue of appreciating the
rationale behind the doctrine of national security, Justice
Abdul Hamid Omar Acting LP(as he then was), in the
case of PP v Karpal Singh and Anor (1988)1 CLJ (Rep)
249 had occasion to quote Lord Parker in the case of The
Zamora [1916] 2 AC 77 where the learned Lawlord had
said: “Those who are responsible for the national security
must be the sole judges of what the national security
requires. It would be obviously undesirable that such
matters should be made the subject of evidence in a
Court of law or otherwise discussed in public.” [Italics as
emphasis added by me] Perplexed as the Court may feel
in a situation such as this, nevertheless, the law is clear
on the embargo, whereby the exercise of discretion by the
Board under Rule 10(2) of the (Pocedures) Rules 1972 is
immune from any form of judicial review. I therefore would
agree with the submissions of the learned SFC on this
issue and I respectfully would beg to differ from the
learned Counsel on the same issue.

Based on the considerations as outlined above by me, I

am of the view that the applications[case no:44-63/64-
2007] for a writ of habeas corpus by each of the

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 Applicants cannot succeed and ought therefore be
dismissed. Order accordingly in both cases.

(ABANG ISKANDAR BIN ABANG HASHIM)

JUDICIAL COMMISSIONER,
HIGH COURT,
SHAH ALAM, SELANGOR.

Dated: 20th August 2008.

Parties appearing:
En. Najib bin Zakaria, Senior Federal Counsel, acting for all
Respondents;
En. T. Suresh, Counsel, acting for both Applicants.

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