KUALA LUMPUR – The Shah Alam High Court today approved a habeas corpus application by a Sabahan who was arrested last year for allegedly distributing drugs, citing, among others, that the name of the minister used to sign the detention order – Tan Sri Muhyiddin Mohd Yassin – was invalid.
This is because the prime minister, who was then acting home minister prior to the formation of his cabinet, did not use his official name as per his MyKad, Mahiaddin Md Yasin, in issuing the order.
Muhammad Kamil Abdul Munim, who was among those who represented Awang Sari Lasikan in the habeas corpus application, said judicial commissioner Norsharidah Awang ruled that ministers must use their government gazetted names in carrying out official duties.
This decision poses a serious question over the legality of other formal documents that may have been signed by Muhyiddin – who held various other government positions throughout his career – using his “glamour” name, and if they can now be similarly challenged in a court of law.
Other than the positions of prime minister (March 2020-present) and home minister (2018-2020), Muhyiddin also held several other key posts, including deputy prime minister (2009-2015), international trade and industry minister (2008-2009) and Johor menteri besar (1986-1995).
It is uncertain how many other detention orders and official documents have been signed by the prime minister using his moniker in the past – including when he was sworn in as the head of the government on March 1 last year.
We want this information to be in the public domain, that Muhyiddin cannot use his glamour name in carrying functions as minister.
Among recent high-profile detentions made when Muhyiddin was home minister was the arrest of a dozen individuals suspected of involvement with terror group Liberation Tigers of Tamil Eelam (LTTE) in late 2019.
Interestingly, Muhyiddin had used his official name “Mahiaddin” when signing the proclamation of nationwide emergency on January 12, as well as three other emergency orders in Gerik (Perak), Batu Sapi and Bugaya (Sabah) last year.
“We want this information to be in the public domain, that Muhyiddin cannot use his glamour name in carrying functions as minister,” Kamil said.
In a document published by the high court, deputy registrar Ainul Bashirah Dona Don Biyajid confirmed the habeas corpus application has been granted and that the applicant shall be released with immediate effect.
According to Kamil, the court also granted the release taking into consideration that the submission of the full police report on the case to the minister was not done with urgency, while Awang Sari’s representation hearing before the advisory board failed to take place within the required three months following his arrest.
Applicant claims detention did not comply law
Awang Sari, who was arrested on January 11, last year, was sent to the Simpang Renggam rehabilitation centre before being ordered to remain in detention for two years beginning March 9 that year, under the Dangerous Drugs (Special Preventive Measures) Act 1985.
He then filed a habeas corpus application on September 10, claiming there to be non-compliance of the law in the detention process.
In his argument to the court via his advocate, Zafri and Partners, Awang Sari had claimed that the March 9 detention order by Muhyiddin was issued by an “unidentified and invalid” name, and not the one gazetted under the Ministerial Functions Act 1969.
The prime minister had also used his unofficial name in signing two subsequent affidavits in the case dated November 13, 2020 and January 1, 2021, one of which acknowledged that Muhyiddin was only his glamour name.
“Any detention order must be issued and signed based on the power and name that was given under the government gazette, and any order issued under a different name will be deemed ex facie,” said the argument.
“Similarly, the two affidavits by Muhyiddin are invalid and incomplete, and cannot be accepted by the court.”
Additionally, Zafri and Partners said the detention violated Section 3(3) of the Dangerous Drugs (Special Preventive Measures) Act 1985 as there was a delay in completing and submitting the full police report to the home minister and the ministry.
The provision states that the full report shall be handed over within a period prescribed by the minister.
In the event no time is given, Section 54(2) of the Interpretation Acts 1948 and 1967 states that (it) “shall be done with all convenient speed and as often as the prescribed occasion arises”.
“The investigation officer took 36 days to prepare and submit the full report. It is an unreasonable time, not immediate and impractical, and therefore is in violation of the law,” Awang Sari’s argument read.
The document also noted that the detainment went against Article 151(1)(b) of the federal constitution that no citizen shall continue to be detained unless an advisory board has considered any representations and made recommendation to the Yang di-Pertuan Agong within three months of receiving the representations.
“Based on the affidavit of the respondent, the applicant’s representation was not done within the required three months, while the advisory board also failed to provide recommendation within the same period.” – The Vibes, April 2, 2021
