A Critical Look at the Latest Court of Appeal Decision on Detention Without Trial
Art Harun
The Court of Appeal (“CoA”) has last week allowed the appeal in the case of Abdul Malek Hussin v Borhan Hj Daud. In doing so the CoA reversed the High Court decision which, among others, found that the detention of Abdul Malek under the Internal Security Act (“ISA”) unlawful.
The CoA’s decision was, almost as usual, unanimous. Although three Judges heard the appeal, only one judgment was written and read out.
Briefly, Abdul Malek was arrested and detained by the police under the ISA on 25th September 1998. The 1st Defendant (Encik Borhan) testified that he told Abdul Malek at the time of arrest as follows:
“Saya memberitahu plaintif bahawa dia ditangkap di bawah Akta Keselamatan Negara 1960 kerana terlibat dengan kegiatan mengancam dan memudaratkan keselamatan Negara.”
“I told the plaintiff that he was arrested under the ISA 1960 because he was involved in activities which threatened and were detrimental to national security” (translation is mine).
Then a written form was issued. It reads:
“Saya Borhan bin Hj Daud (G/7624) pada 25 September 1998 jam 2310 hrs telah memberitahu kamu Abdul Malik bin Hussin No: K/P: 560814-06-5467 sebab-sebab kamu ditangkap di bawah seksyen 73(1) Akta Keselamatan Dalam Negeri, 1960 iaitu:
(a) Saya mempercayai ada alasan-alasan untuk menahan kamu di bawah seksyen 8 Akta Keselamatan Dalam Negeri, 1960; dan
(b) Saya mempercayai kamu telah bertindak dengan cara yang memudaratkan keselamatan Malaysia.
“I, Borhan bin Hj Daud, on 25th September 1998, at 2310 hrs had told you, Abdul Malil bin Hussin the reasons why you were arrested under section 73(1) of the ISA 1960, namely:
(a) I believe there are grounds to detain you under section 8 of the ISA 1960; and,
(b) I believe you have acted in a manner which is detrimental to the security of Malaysia.” (translation is mine).
In evidence, Borhan said further:
“Plaintif terlibat secara langsung di dalam perhimpunan haram yang di mana setiap perhimpunan haram tersebut diakhiri dengan kacau bilau dan mengganggu ketenteraman awam.”
“The plaintiff was directly involved in illegal assemblies where each of the assemblies ended in chaos and disturbances of public peace.” (translation is mine).
That was it. No further or other fact was ever told to Abdul Malek on why he was being arrested and/or detained. No particulars or details were ever given.
Justice Hishamuddin Yunus, at the High Court (now a Court of Appeal Judge) held that the arrest and subsequent detention was unlawful because, among others, Abdul Malek was not told of the ground of his arrest. His Lordship said:
“It is my judgment that, in the light of what I have said above, this form cannot be taken to be due compliance with art. 5(3). In relation to compliance under s. 73(1)(a), the form completely fails to meet the requirement as it mechanically parrots the words of the provision of s. 73(1)(a) without showing that the arresting officer had directed his mind to the requirements of s. 8. I had pointed out this requirement in Abdul Ghani Haroon (No. 3). The form also fails in terms of the s. 73(1)(b) requirement, since the plaintiff was not given the slightest clue or intimation as to what he had allegedly done or was likely to do or was about to do that was prejudicial to the security of the country.”
Justice Raus in the Court of Appeal apparently disagreed. I have not read the actual judgment yet. My comment here is merely based on a MalaysiaKini report of his judgment.
Justice Raus was reported to have said:
“It is our view the respondent was informed the grounds of his arrest. The officer gave sufficient particulars and thus did not make the arrest and detention unlawful.”
With the greatest of respect to Justice Raus and the other two Judges who agreed with him, I beg to differ.
First of all, Article 5 (3) of the Federal Constitution provides that where a person is arrested he shall be informed as soon as may be of the grounds of his arrest.
Meanwhile, article 151 provides that in a preventive detention case, the person being detained shall, as soon as may be, not only be informed of the grounds for his detention but also the allegation of fact on which the detention order is based. The detained person shall also be given the opportunity of making representations against the detention order.
The allegation of fact may however be withheld if its disclosure would affect national security.
The Federal Court in the case of Mohamad Ezam Mohd Nor & Ors v. Ketua Polis Negara [2001] 4 CLJ 701 held that not only the arresting officer must tell the arrested person the ground for his arrest, the Court has, in addition to that the power the power “to review the sufficiency and reasonableness of the respondent’s reasons for believing that there were grounds to justify the appellants’ detention under s. 8 ISA and that the appellants had acted or was about or likely to act in a manner prejudicial to the security of Malaysia.”
This opinion is also shared by our Supreme Court (which was then the highest Court in Malaysia) in the case of IGP v Tan Sri Raja Khalid bin Raja Harun.
Although the decisions referred to above are in respect of a section 8 detention (as opposed to a police detention under section 73, the same principle must apply. Both these cases, being decisions of a higher court than the CoA, are binding on the CoA and thus Justice Raus.
Now, the question is this. Has Borhan given to Abdul Malek the “ground” for his arrest and detention and inform him of the “allegation of fact” on which the detention was based?
