In April, Shah Alam’s High Court ruled in favor of a Sabahan who was arrested last year for allegedly distributing drugs on a habeas corpus prescription, citing among other things that the name the minister used to sign the detention order – Tan Sri Muhyiddin Mohd Yassin – was invalid.
From the start, the case was already difficult in the first place due to the lack of possible grounds for judicial review. Courts already tend to defer to the government in cases involving detention, deprivation of liberty and other national security matters.
Apart from reviewing the technical compliance of the detention, there is not much else that the Court can review. Bodies that make national security decisions have their own procedures and rules (some of which may even exclude judicial review altogether), making it difficult to challenge such decisions.
As such, in matters of national security and personal freedom, courts are therefore generally left only with questions of technical non-compliance to consider.
The Ministerial Duties Act or the Federal Gazette do not require that a document be signed by “Mahiaddin” instead of “Muhyiddin” (however, to avoid any future complications, the government of Malaysia recently issued a directive ordering all officials to use the legal spelling of the prime minister’s name). And as anyone in the legal field knows, the technicalities are seldom fatal; a simple correction can be made to remedy the technical error.
That being said, in an application for habeas corpus, a “technicality becomes important” as my learned friend from the Bar, Andrew Khoo puts it, when the case “involves the liberty of a person”. Also, keep in mind that the Minister’s use of the wrong name was just one of the many other reasons given by the Court to justify setting aside the detention order; for example, the lawyer also pointed out that there was a significant delay in writing and submitting the full police report to the minister and his ministry, in violation of section 3 (3) of the Law of 1985 on dangerous drugs (special preventive measures). if the faulty signature was not the deciding factor, it could not be ignored due to the nature of the case.
This has led some people to wonder if any of the decrees / directives signed by the Prime Minister in the past will now be rescinded. Keep in mind that the Prime Minister has had a long career; given his past tenures as Deputy Prime Minister, Home Secretary, Minister of Education, since his tenure as Menteri Besar of Johor, he has signed countless ordinances / directives under the name of “Muhyiddin”. More than a handful of these were made in connection with national security issues; some of which are still in effect today. Invalidating them now would unleash a wave of administrative chaos. So how can we prevent this?
Simple: a law, ordinance or ordinance cannot become void simply because it contains procedural irregularities (ie an incorrect name); it only becomes void after someone challenges it in court, and the court declares it void. It is a universally applied canon; subsidiary legislation is presumed to be valid even if it goes beyond the scope authorized by the parent law until it is declared void by the doctrine of substantial ultra vires. For example, section 3 (3) of the Sedition Act only became void after being challenged in court and declared unconstitutional; the list goes on.
A law, ordinance or ordinance cannot become void simply because it contains procedural irregularities (ie an incorrect name); it only becomes void after someone challenges it in court, and the court declares it void.
Therefore, all previous decrees and directives of the minister where he signed as “Muhyiddin Yassin” are still valid; No harm done ; except for some embarrassment the situation caused.
However, it has been reported that the Prime Minister will now use his legal name. In fact, he had used his legal name to sign four emergency proclamations; namely the national emergency, and those of Batu Sapi, Gerik and Bugaya to suspend the by-elections.
The cancellation of the detention order due to the minister’s signing of the detention order with a “glamorous name” really shows how extremely “protective” the Malaysian justice system is when it comes to individual freedoms. This will ensure that the state cannot simply interfere in such sacrosanct matters with a nonchalant attitude; instead, they are forced to strictly follow the rule and the qualifications in order to take such drastic action.
The cancellation of the detention order due to the minister’s signing of the detention order with a “glamorous name” really shows how extremely “protective” the Malaysian justice system is when it comes to individual freedoms.
CHAN QUIN ER