25 Malaya L. Rev. 324 (1983)
Habeas Corpus and Preventive Detention in Singapore and Malaysia

handle is hein.journals/sjls25 and id is 330 raw text is: (1983)

IN 1982 an International Mission of Lawyers visited Malaysia to
investigate the operation of certain aspects of internal security legis-
lation.' In consequence of that investigation the Mission recommended
that a number of changes be made, both in legislation and in adminis-
trative practices. One recommended change was that: the I(ntemal)
S(ecurity) A(ct) be amended to provide for adequate judicial review
of all administrative acts taken, including the initial determination that
(preventive) detention of an individual is necessary.2
In this paper I will argue that no such legislative amendment is
necessary, at least in respect of initial decisions to detain.3 I accept
without reservation the implication that in this fundamental area of
personal liberty the judiciary should have an important reviewing role
over administrative acts, but I contend that this may be done quite
adequately in proceedings on applications for writs of habeas corpus.
This contention is, however, dependent upon the satisfaction of an
essential condition-that in performing their functions in habeas
corpus applications, the courts exhibit a willingness to utilise the powers
available to them to the full. As I will hope to demonstrate, the courts
in both Singapore and Malaysia have adopted an unduly restrictive
approach to their reviewing role when applications for habeas corpus
in respect of preventive detention have been made. This restrictive
approach is unjustified, for the authorities which are said to support
it can no longer do so, even if they ever could (which in some cases
is very doubtful). It is still open to the courts to adopt a more
generous attitude-it is only if they refuse to do so that further
consideration would need to be given to the Mission's recommendation.
To advance my argument I shall concentrate on preventive deten-
tions under the Internal Security Acts of Singapore and Malaysia,
although I shall make occasional reference to cases of preventive
detention under other legislation. In focussing on the Internal Security
Acts I will not be concerned to discuss whether such legislation is
1 The Mission's Report is published in Insaf, The Journal of the Malaysian
Bar, Vol. XV1 No. 1 (January 1983) at pp. 3-45.
2 Ibid., at p. 42.
3 Administrative decisions taken subsequent to the initial decision to detain-
for example, decisions to put the detainee in solitary detention, or to subject
him to a more rigorous regime-are not considered here. There is some Com-
monwealth authority that habeas corpus may be used to challenge the legality
of detention consequent upon such decisions (see Re Cardinal and Oswald
(1982) 137 D.L.R. (3d.) 145; Re Miller (1983) 141 D.L.R. (3d.) 330; and R.
v. Police Commissioner ex p. Nahar. The Times 28th June 1983), but local
cases take a more restrictive view- see Chok Kok Thong v. Minister for Home
Affairs, Singapore (1963) 29 M.L.J. 232 and Lau Lek Eng v. Minister for Home
Affairs, Singapore [1972] 2 M.L.J. 4.

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