Mohamad Ezam Mohd Noor v. [2002] 4 CLJ Ketua Polis Negara & Other Appeals 309 MOHAMAD EZAM MOHD NOOR a v. KETUA POLIS NEGARA & OTHER APPEALS FEDERAL COURT, KUALA LUMPUR b MOHAMED DZAIDDIN CJ WAN ADNAN ISMAIL PCA STEVE SHIM CJ (SABAH & SARAWAK) ABDUL MALEK AHMAD FCJ SITI NORMA YAAKOB FCJ c [BIL: 05-8-2001(W), 05-9-2001(W), 05-10-2001(W), 05-11-2001(W) & 05-12-2001(W)] 6 SEPTEMBER 2002 EVIDENCE: Fresh or further evidence - Additional evidence - Criminal appeals, power of Federal Court to take additional evidence - Courts of d Judicature Act 1964, s. 93(1) - “if it thinks additional evidence to be necessary” - Whether means additional evidence ‘necessary or expedient in the interests of justice’ - Requirements of ‘non-availability’, ‘relevance’ and ‘reliability’ - Ladd v. Marshall e CRIMINAL PROCEDURE: Judge - Recusal - Bias - Test to be applied - Real danger of bias test - Reasonable apprehension of bias test - Whether judge was right in refusing to recuse himself PREVENTIVE DETENTION: Internal Security Act - Application and scope of - Whether enacted specifically and solely to deal with threat of f communism in Malaysia - Whether to deal with all forms of subversion - Federal Constitution, art. 149 - Internal Security Act 1960, long title and preamble PREVENTIVE DETENTION: Internal Security Act - Detention - Internal Security Act 1960, s. 73(1) - Exercise of discretion by police officer - g Whether justiciable - Whether amenable to judicial review - Preconditions in s. 73(1), whether objective or subjective - ‘Reason to believe’ - Whether objectively justiciable - Whether court can examine sufficiency and reasonableness of police officer’s ‘reason to believe’ - Whether burden on police to show compliance with preconditions in s. 73(1)(a) & (b) - Habeas h corpus i CLJ 310 Current Law Journal [2002] 4 CLJ a CONSTITUTIONAL LAW: Fundamental liberties - Right to counsel - Detention under s. 73 Internal Security Act 1960 - Total denial of access to legal representation for entire 60-day period of detention under s. 73 - Whether a breach of art. 5(3) Federal Constitution - Whether validated by art. 149 Federal Constitution - Whether Internal Security Act 1960 b contains any provision proscribing access to legal representation during detention under s. 73 PREVENTIVE DETENTION: Internal Security Act - Detention - Right to counsel - Total denial of access to legal representation for entire 60-day period of detention under s. 73 Internal Security Act 1960 - Whether a c breach of art. 5(3) Federal Constitution - Whether validated by art. 149 Federal Constitution - Whether Internal Security Act 1960 contains any provision proscribing access to legal representation during detention under s. 73 d PREVENTIVE DETENTION: Internal Security Act - Detention - Internal Security Act 1960, s. 73 - Whether detention was for collateral or ulterior purpose - Intelligence gathering - Whether there was mala fide on part of police - Detention purportedly on grounds of militancy and threat to national security - Detainees not interrogated on alleged militant activities but on their political activities and beliefs e PREVENTIVE DETENTION: Internal Security Act - Application and scope of - Whether ss. 73 and 8 Internal Security Act 1960 ‘inextricably connected’ - Whether can operate independently of each other - Whether right of non-disclosure under s. 16 applies to s. 73 - Whether right of non- f disclosure under art. 151(3) Federal Constitution refers to allegations of fact or to grounds of detention - Whether art. 151(3) bars information concerning matters of national security from being disclosed to detainee or to court WORDS & PHRASES: “additional evidence to be necessary” - Courts of g Judicature Act 1964, s. 93(1) - Whether means additional evidence ‘necessary or expedient in the interests of justice’ WORDS & PHRASES: “subversion” - Federal Constitution, art. 149 - Meaning of - Whether refers specifically and solely to subversion by h communists WORDS & PHRASES: “has reason to believe” - Internal Security Act 1960, s. 73(1) - Whether objective or subjective standard - Whether court can examine sufficiency and reasonableness of police officer’s grounds of belief under s. 73(1)(a) & (b) i CLJ Mohamad Ezam Mohd Noor v. [2002] 4 CLJ Ketua Polis Negara & Other Appeals 311 The five appellants herein were political activists/reformists aligned to the a former Malaysian Deputy Prime Minister, Anwar Ibrahim. (See PP v. Dato’ Seri Anwar Ibrahim (No 3) [1999] 2 CLJ 215). On 11 and 12 April 2001, they were arrested and detained by the police under s. 73(1) of the Internal Security Act 1960 (‘ISA’). The appellants’ instant appeals to the Federal Court were from the decision of the High Court dismissing their b applications for the writ of habeas corpus to secure their release from police detention. At the hearing of the appeals, two preliminary issues were raised by the respondent, viz that: (i) the 2nd appellant’s appeal was merely academic because he had since been released from police detention; and (ii) the c remaining applications for habeas corpus ought not to have been directed against the respondent (the Inspector General of Police) but against the Minister of Home Affairs (‘the Minister’) because the appellants were no longer being detained by the respondent under s. 73 ISA but at the behest of the Minister under s. 8(1) ISA. Furthermore, the respondent also objected d to the appellants’ motions to adduce additional evidence in the instant appeals under s. 93(1) of the Courts of Judicature Act 1964 (‘CJA’). The substantial issues that arose for determination were: (i) whether the High Court judge was right in refusing to recuse himself from hearing the e appellants’ applications for habeas corpus; (ii) whether the ISA was enacted (pursuant to art. 149 of the Federal Constitution) specifically and solely for the purpose of dealing with the threat of communism in Malaysia and, therefore, could not be used against the appellants; (iii) whether the preconditions in s. 73(1) ISA are objective – such that the court is obliged to examine the validity and reasonableness of the respondent’s belief that f 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; (iv) whether the total denial of access to legal representation for the appellants throughout the entire period of their detention under s. 73 ISA was a breach of art. 5(3) of the Federal g Constitution; (v) whether there was mala fide on the part of the respondent in arresting and detaining the appellants; and (vi) the justiciability of the exercise of discretion by the police under s. 73(1)(a) and (b) ISA. Held: h Per Abdul Malek Ahmad FCJ [1] Since the basis for the detention orders signed by the Minister under s. 8 ISA was the outcome of the police investigations conducted on the appellants whilst they were being detained under s. 73 ISA, the i CLJ 312 Current Law Journal [2002] 4 CLJ a correctness of the decision of the High Court (that the appellants’ detention by the police under s. 73 ISA was lawful) remained a live issue. (pp 346 g-h & 347 a) [2] The additional evidence (comprising affidavits deposed by the appellants themselves) sought to be admitted by the appellants came b within the ambit of s. 93(1) CJA in that they were ‘necessary or expedient in the interests of justice’. (Juma’at Samad v. PP [1993] 3 SLR 338 and Irtelli v. Squatriti & Ors [1993] QB 83 followed). Furthermore, the evidence had satisfied the conditions of ‘non- availability’, ‘relevance’ and ‘reliability’ as enunciated in Ladd v. c Marshall [1954] 3 All ER 745. (pp 348 h & 349 a-d) [3] Applying the ‘real danger of bias’ test respecting the refusal of the High Court judge to recuse himself from hearing the appellants’ habeas corpus applications, it did not appear, in the circumstances of the case, d that there would be a real likelihood, in the sense of a real possibility, of bias on the part of the judge. Even if the less stringent ‘reasonable apprehension of bias’ test were applied, the same conclusion would have been reached. (See Mohamad Ezam Mohd Nor & Ors v. Ketua Polis Negara [2001] 4 CLJ 701 which followed R v. Gough [1993] AC 646). (pp 349 h & 350 a-b) e [4] There is nothing in art. 149 of the Federal Constitution or in the ISA to indicate that the ISA is limited in its application to the communist threat only. Although the ISA was directed mainly against the communist activities that were prevailing at the time when it was f enacted, the legislative purpose and intent of the ISA is to deal with all forms of subversion. Notwithstanding that the parliamentary materials and contemporaneous speeches at that time focused on the communist insurgency, the long title and the preamble to the ISA signify that it is not confined to the communist threat alone. (Theresa g Lim Chin Chin & Ors v. Inspector General of Police [1988] 1 LNS 132 followed). (pp 359 f-h & 360 h) [5] The elements of s. 73(1) ISA are objective. (Chng Suan Tze v. The Minister of Home Affairs & Ors [1988] 1 LNS 162 followed). Consequently, the court is entitled to review the sufficiency and h 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. From the evidence, particularly the affidavits deposed by the appellants and the respondent’s affidavits i CLJ Mohamad Ezam Mohd Noor v. [2002] 4 CLJ Ketua Polis Negara & Other Appeals 313 in reply thereto, it became clear that: (i) the appellants were not told a of the grounds of their arrest; (ii) the police officers who arrested and detained the appellants did not really explain the reasons for their ‘belief’ under s.