Habeas corpus – Writ – Detention under section 6(1) Dangerous Drugs (Special Preventive Measures) Act 1985 – Representation before Advisory Board – Whether a matter of detainee’s substantive right – Notice thereof – Notice not served on detainee and detainee denied right to make representation – Whether a material non-compliance – Whether detention nullified

Jayaganesan Ramakrishnan v Timbalan Menteri Dalam Negeri, Malaysia & Ors
[2019] 9 CLJ 725, Federal Court

see the grounds of judgment here

Facts The appellant was arrested on the allegation that he was involved in activity relating to the trafficking of dangerous drugs and was detained under the provisions of the Dangerous Drugs (Special Preventive Measures) Act 1985 (the Act). The first respondent issued a detention order (detention order) with immediate effect for a period of two years and the appellant was accordingly detained at Pusat Pemulihan Akhlak Machang, Kelantan. The appeal before the Federal Court was against the decision of the High Court declining to issue a writ of habeas corpus[1] applied for by the appellant for the reason that the appellant’s detention pursuant to a detention order issued by the first respondent Minister pursuant to section 6(1)[2] of the Dangerous Drugs (Special Preventive Measures) Act 1985 (‘the Act’) was substantively and procedurally lawful. At the High Court, the appellant argued that the Judge’s decision was flawed and ought to be disturbed, as the detaining authority had denied him the right to make his representation before the Advisory Board (‘the Board’) and was hence guilty of material non-compliance. The warden’s affidavit as adduced by the respondents indicated that whilst the hearing before the Board was scheduled for 7 June 2017, the notice thereof was explained to the appellant or served on him only on 27 September 2017 and 10 October 2017 respectively. The facts further showed that no corrective affidavit was filed by the respondents as detaining authority to address the perceived irregularity.

Issues The main issue is whether the appellant’s detention was lawful?

Held In allowing the appeal, the Federal Court held that the detaining authority was unable to meet its burden to satisfy the strict requirements under section 9(1)
[3] of the Act that mandatorily entitles any detainee the right to make representations before the Board and had failed to serve the said notice on the appellant, rendered the detention illegal. The court issued a writ of habeas corpus and the appellant was ordered to be released accordingly.

[1] A writ requiring a person under arrest to be brought before a judge or into court, especially to secure the person's release unless lawful grounds are shown for their detention
[2] Power to order detention and restriction of persons
[3] Representations against detention order