DISCREATIONARY POWERS AND THEIR
CONTROL
4
DISCREATIONARY POWERS AND THEIR CONTROL (KULIAH 3) Definition:
Secretary of State for Education and Science V Tameside Metropolitan Borough Council
The very concept of discretion involves a right to choose between more than one possible course of action upon which there is room for reasonable people to hold differing opinions as to which is to be preferred.
- Dicreationary power is different with minnistrial pwer.
- Dp adalah kuasa budi bicara
Importance of judicial control on the exercise of discretionary powers
Per, RAJA AZLAN SHAH IN PENGARAH TANAH & GALIAN WP V SRI LEMPAH ENTREPRISE.
“unfettered discretion is a contradiction in terms. Every legal power must have legal limits. In other words, discretion cannot be free from legal restraints, where it is wrongly exercised, it becomes the duty of the court to intervene. The courts only the defence of the liberty subject against departmental aggression (pihak pentadbir). In these days when government departments and p. authorities have such great powers and influenced are exercised accordance with law. I would once again emphasize what has often been said before that “public bodies must have compelled to observe the law and it is essential that bureaucracy should kept in its place”
-Pihak pentadbira tak seharusnya diberikan DP yang luas tanpa kawalan. Kuasa yg diberikan harus ikut UU.
Jika pentadbiran salah guna kuasa maka, mahkamah harus melindungi hak individu seseorang.
Validity of absolute discretion
MINISTER OF HOME AFFAIRS V PERSATUAN ALIRAN KESEDARAN NEGARA
S12 (2) : of the PPPA (PRINTING PRESSES AND PUNBLICATION ACT) gives the minister absolute discretion to refuse an application for a licenses and permit. So unless it can be clearly established that the minister had in any way exercised his discretion wrongfully, unfairly, dishonestly or in bad faith. The HC cannot question the discretion of the minister.
Case: untuk menerbitkan sebuah majalan atau akhbar perlukan lessen atau permit. S12(2) meyatakan bahawa menteri ada kuasa budi bicara mutlakdlam pertimbanga. Permohonan aliran ditolak. Apabila ditolak, mereke tlh e mahkamah utk mencabar keputusn itu. Antara isu yg dibangkitkan, kuasa mutlak adalah mutlak. Jika meneri decide in bad faith even ada absolute discretion the HC still can in terfere, because the discretion is not protected. Jika menteri membuat keputsan dengan cara yg sakah, maka mahkamah boleh campur tangan.
Application of doctrine ULTRA VIRES The 4 grounds of review are:
- When the administrative authority infringes implied substantive restrictions imposed by the court on discretionary powers.
- When the administrative authority infringes substantive restrictions (ALREADY IMPOSED ON STATUTE) which are expressly provided by law
- When the administrative authority does not comply with the rules of natural justice in executing its powers
- When the administrative authority does not comply with procedures which are expressly stated by law
*Implied substantive limitations/restrictions or extended ultra vires
- Limitations impliedly imposed by the court on DP though the statute that confers the powers is silent on it.
- Used in sophiscated and extended manner by the court through judicial creativity - Implied substantive limitation or extended ultra vires can be divided into two categories.
1. Abuse of discretion 2. Non exercise od discretion
a) ABUSE OF DISCRETION
Abuse of discretion may occur when the authority abuses its discretionary powers and It can happen in the following situations:
1. mala fides
2. setting aside relevant considerations/ taking into account irrelevant considerations 3. improper purpose
4. unreasonableness
5. unfairness-disproportionally 6. delay
7. inconsistency with the policy of an act 8. misdirection of fact or law
b) NON EXERCISE OF DISCRETION
Non exercise of discretion may occur when the authority fails to exercise its discretion and it can happen in the following situations:
1. Non-application of mind (penyalahgunaan otak) 2. Acting under dictation
3. Acting mechanically 4. Fettering discretion
ABUSE OF DISCRETION 1. MALA FIDES
- Niat jahat yg wujud semasa pihak pentadbiran buat keputusan yang boleh membuatkan keputusan itu dibatalan di mahkamah
- Mala fides (berlaku dalam otak, sukar dibuktikan)
- Dishonest intention or corrupt motive or personal animosity ( a feeling of strong dislike, ill will) PRATAP SINGH V STATE OF PUNJAB
Held: the administration cannot use its power with a malicious motive. The purpose of vesting disciplinary powers in the government over its servants is to ensure prohibit and purity in civil services not to wreak private vengeance on them. Ada mala fides, keputusan dibatalkan di HC. Setiap kuasa yg diberian pada pentadbir.
Mereka tidak boleh guna dengan niat jahat yang buru (malicious motif) ABDUL GHANI HAROON V KETUA PLIS NEGARA (NO. 3)
AGH tlh ditahan dibawah s73 (keselamatan dalam negara) penahan itu telah dilanjutkan selama 2 hari. Mereka tidak dibenarkan berjumpa peguam dan keluarga. Mereka mohon kepada mahkaamah remedies habeas corpus, offences than detained people lebih dri masa yg diberikan. Held: dato hishamuddin said, ada niat jahat (mala fides) kerana KP dan pengarahsepcial branch telah membuat keputusan yang melampaui tempoh masa yg dittapkan. Granted habeas corpus. Arahan judge, jangan disentuh mereka selama 24 jam selepas ini. If the authority exceeds DP, their decision can be challenge in HC.
2. SETTING ASIDE RELEVANT CONSIDERATIONS/ TAKING INTO ACCOUNT IRRELEVANT CONSIDERATIONS
Relevant considerations must be considered, and irrelevant consideration must be set aside in the process of making decision (xleh take into account irrelevant considerations)
- Consider whether genuine and proper consideration has been given vs.
applying policy without regard to the merits of the case
- Pertimbangan ini terangterang ada dalam statut atau statut silent on him but court will have implied the consideration.
RE HAJI SAZALI
Telah dinyatakan dalam statut
Used to quash the decision which was made by inferior tribunals in excess of jurisdiction or abuse of jurisdiction or contrary to rules of natural justice or there is error of law on the face of record Power to issue the order is within the court’s discretion
PADFIELD V MINISTER OF AGRICULTURE
Padfield and other milk producers in the South East Region argued they should get more milk subsidies to reflect growing transport costs, and applied to court to compel the Minister to appoint an investigation. All milk producers had to sell their milk to the Milk Marketing Board. Differentials were fixed a few years before and transport costs had changed. The SE region argued the difference between it and the Far Western Region should be altered: this would incidentally affect other regions. Board members were elected by individual regions, so it was impossible for SE producers to get a majority for their proposals. They asked the Minister of Agriculture, Fisheries and Food (Fred Peart) to appoint a committee of investigation. He refused. They requested mandamus. Menteri cakap, if we do, this will have embarrassed me as a minister. They went to HC to challenge, court held, this is wrong. This decision is irrelevant consider embarrassing is irrelevant.
BREEN V AMALGAMATED ENGINEERING UNION
in 1958 Mr Breen was involved in, but absolved from, a dispute on misappropriating union funds. He was voted in as shop steward at his oil refinery in Fawley in 1965, but the district secretary in Southampton who had been party to the 1958 dispute rejected his election. Mr Breen said this was contrary to natural justice. Cusack J held that rules of natural justice did not apply, and the committee had unfettered discretion under the rules. Only bad faith would suffice, and in any case the old dispute played no part.
The authority must be guided by relevant consideration and not by irrelevant consideration. If its decision is influenced by extraneous consideration (against judicial norms) which it ought not to have taken into consideration, the decision cannot stand.
MINISTER OF LABOUR, MALAYSIA V NATIONAL UNIONS OF JOURNALIST
Y seorg wartawan, pergi luar negara buat conference. Kat luar degara dia buat perkara tidak senonoh dgn wartawan kat sna. Utusan melayu tlh pecat dia bila tiba di Malaysia. Dia bgtau ic pengarah, klau takleh selesai, menteri akan ambil alih. Menteri ada kuasa budi bicara. Y dismissed under UM, fall under industrial relation act. Y refer to minister; minister decide not to refer sebab malukan negara. HC: malukan negara tak relevan.
BROMBLEY LBC V GLC
Masa pilihan raya, Labour party nuat manifesto akan kurangkan tabang tren and bus 25%. Pastu diorg pun menang. Harga tabang diturunkan seperti dijanjikan. Tapi, untuk tanggung rugi, mereka imposed taxes kepada owner property. Property owner challenge the decision. Hc held, did utk cover losses. Decision denied.
MAK SIK KWONG V MINISTER OF HOME AFFAIRS, MALAYSIA NO 2
The decision made by relevant and irrelevant consideration is still valid if the court satisfied. Then the authority will still make the decision even if he may not consider the irrelevant consideration.
Fikir a and b, tp buatkeputsan c and mahkamah puas hati sebab c tu eputusan yg mmg selalu buat. Maka, sah.
CARA BUAT CONCLUSION: [applicant] is [likely/unlikely] to have the decision set aside on the basis there was a [failure to take into account a relevant consideration/ irrelevant factor considered.]
3. IMPROPER PURPOSE.
Purpose not permitted by law which confers the said power.
walaupun pihak berkuasa buat keputusan berdasarkan improper purpose, tp harus dibuktikan di mahkamah.berbeza dgn mala fides, taleh prove dekat court (more narrow).
Improper purpose, no need to prove malice, corruption semua Cuma tengok dekat statut.
If takde within statut hen its improper.
SYDNEY MUNICIPAL COUNCIL V CHAMBELL
The council was authorised to purchase land for development purposes. The council wished to purchase Campbell’s land for the purposes of financial gain. CH: Improper use of power, Campbell got the profits from the increased value instead. THE DECISION NULL AND VOID.
PENGARAH TANAH & GALIAN V SRI LEMPAH ENTERPRISE
Kerajaan negeri telah meluluskan permohonan utk mengubah status tanah. Status tanah yg mempunayai staus pajakan kekal. Application by registered owner to Collector of Land Revenue to subdivide freehold land. But the Condition for subdivision is Status of land changed from freehold to leasehold upon agreement by registered owner. Application by registered owner 45 years after subdivision to declare change of original land status ultra vires and unlawful. Whether Land Administrator had power to make applicant give up freehold title and receive leasehold title in exchange. Change from residential to commercial. S124 nlc, stated that quashed all the decisions as improper purpose. Cannot take back the freehold titles.
4. UNREASONABLESS
“So unreasonable that no reasonable authority could ever have come to it”
It must be shown the decision was so unreasonable that no reasonable authority could ever have come to it
EXAPMLE: Red teacher dismissed for having red hair PRESSCOTT V BRMIGHAM CORPORATION
Diberikan kuasa utk imposed fees transportation. Diorg impose warga tua, perempuan umur 60 percuma.
Manakala, lelaki umur 70 baru percuma. Mereka telah salah guna kuasa.. HC: buat keputusan, this is unreasonable. Why differentiate? Null and void.
PENGARAH TANAH & GALIAN V SRI LEMPAH ENTERPRISE
Kerajaan negeri telah meluluskan permohonan utk mengubah status tanah. Status tanah yg mempunayai staus pajakan kekal. Application by registered owner to Collector of Land Revenue to subdivide freehold land. But the Condition for subdivision is Status of land changed from freehold to leasehold upon agreement by registered owner. Application by registered owner 45 years after subdivision to declare change of original land status ultra vires and unlawful. Whether Land Administrator had power to make applicant give up freehold title and receive leasehold title in exchange. Change from residential to commercial. S124 nlc, stated that quashed all the decisions as improper purpose. Cannot take back the freehold titles.
CHAI CHOON HON V KETUA POLIS NEGARA
Chai Choon Hon v Ketua Polis Daerah, Kampar and Government of Malaysia, where a condition that is attached to a police permit to hold a dinner for the DAP, that there should be only 7 speakers was struck down by the courts because the said permit has already imposed a time limit, which rendered the aforementioned condition unnecessary. This decision is said OT REASONABLE sebab tetapkan berapa org speakers.
CARA BUAT CONCLUSION: Conclusion: [Even] given the high threshold for unreasonableness, it is [unlikely/likely]
[applicant] will be able to establish this ground.
5. UNFAIRNESS-(KETIDAKADILAN) DISPORPOTIONALLY / ketidaksetimpalan R V BARNSLEY
The applicant applied to have quashed the decision of the local council to exclude him from trading in the market and to revoke his right to have a stall.
Held: He succeeded on the grounds that the decision had been taken in breach of the rules of natural justice.
the right of a stallholder to have access to the market was conferred by common law, and could only be taken away for just cause and then only in accordance with the principles of natural justice. ‘I do not mind whether the market-holder is exercising a judicial or administrative function’. Lord Scraman emphasised the common law right in the public to go to market to buy and sell, subject to the statutory regulation of the exercise of that right by the local authority: ‘Although, therefore, there is a contractual element in this case, there is also an element of public law: the enjoyment of rights conferred on the subject by the common law. I think, therefore, on analysis, it is clear that the corporation in its conduct of this market is a body having legal authority to determine questions affecting the rights of subjects
TAN TEK SENG V SPP
Guru penlong kanan simpan duit pekebun. Dan telah dipecat. Held: kesalahan itu tidak setimpal dengan hukuman. .
6. DELAY/ KELEWATAN
KAM GIN PAIK V PEMUNGUT HASIL TANAHY
The Federal court ruled that the collector is not required to give reasons for the award of compensation made by him for the land acquired (7YEARS DELAY)
PRIVY COUCIL: Delay contrary to the express or implied statutory requirements is in itself a ground invalidating proceedings which follow such delay. The delay of seven years made the award illegal and therefore no possession of land can be taken by the authority.
B) NON EXERCISE OF DISCRETION
1. NON APPLICATION OF MIND LIEW FOOK CHUAN V SUMBER MANUSIA
Pemohon telah mula bekerja dengan kumpulan Hong Leong di Malaysia (‘syarikat tersebut’) dalam tahun 1977. Selepas itu, dia telah bekerja dengan beberapa syarikat subsidiari dalam kumpulan tersebut dengan pencapaian yang cermelang, dengan menukarkan syarikat subsidiari yang mengalami kerugian kepada perniagaan yang menguntungkan. Sebagai pengakuan kebolehan pengurusannya yang cermelang itu, dia telah dianugerahkan dengan Award Pengerusi Hong Leong untuk pengurusan cemerlang sebanyak dua kali. Walau bagaimanapun, dalam Februari 1990, tanpa mengira penghormatan yang telah diberikan oleh pemohon kepada majikannya, dia telah dipertuduhkan dengan: (i) mengadakan rundingan untuk menjual beli hartanah tanpa memberitahu syarikat tersebut bahawa adik lelakinya mempunyai kepentingan dalam urusniaga tersebut sebagai broker; dan (ii) menceburkan diri dalam perniagaan Asia-Pacific Advisory Sdn Bhd dan Finnova Corp Sdn Bhd tanpa mendapatkan kebenaran bertulis terlebih dahulu daripada badan pengurus, lalu telah memungkiri terma dan syarat penggajiannya. Pemohon dipecat selepas suatu siasatan diadakan oleh syarikat tersebut. Pemohon kemudiannya telah memfailkan suatu permohonan pegembalian semula di bawah s 20 Akta Perhubungan Perusahaan 1967. In this case the defendant had dismissed the plaintiff from his employment and the court has declared that the dismissal is null and void and since the law is that employment is a fundamental right within the expression of art. 5(1) of the Federal Constitution, it is imperative that the function of the court is to ensure that the plaintiff gets back his job and together with his arrears of salaries and all other emoluments
SUKUMARAN SUNDARAM V TIMBALAN MENTERI HAL EHWAL DALAM NEGERI
the High Court quashed a detention order made under section 4(1) of the Emergency (Public Order and Prevention of Crime) Ordinance 1969. The order in question was signed by the Timbalan Menteri without applying his mind. According to the wording of the order, it was the Minister, and not the Timbalan Menteri, who was satisfied that the concerned person be detained but he did not sign the order. The Timbalan Menteri who signs was not personally satisfied. These rules deter the person or body which has discretionary power to act mechanically, merely as a “rubber stamp” or a “postman”, and will compel him to apply his minds on each and every facts of the case that is put before him, and consider its merits
2. ACTING UNDER DICTATION
This may happen where an inferior authority having a discretion in a matter allow some unauthorized superior authority to dictate to it by declining to act without the superior authority’s consent or by submitting to the wishes or instructions of that superior authority in its decision-making. Where a discretionary power is vested in a decision-maker personally, the decision-maker must turn his or her mind to the exercise, and cannot act at the discretion or behest of another person. A repository of a personal discretionary power will act invalidly if he or she makes a decision without exercising his or her own independent discretion but instead merely carries out instruction given by his or her superiors.
CHONG CHONG WAH V SIVASUBRAMANIAM
In this case the defendant, a police officer, seized a book from the plaintiff was charged by the plaintiff for the return of the book as well as damages for its detention of the book. The defendant pleaded s. 18 of the Control of Imported Publication Act which provides that no legal proceedings whatsoever shall lie, instituted or maintained in any court for account of any publication seized, detained, confiscated or destroyed. Syed Othman J (as he then was) considered that this provision only allows the defendant to claim immunity if the seizure of the book was carried out under the provision of the Control of Publication Act and does not apply when the subject matter was seized under Internal Security Act. (TELAH BERTINDAK MENGKUT ARAHAN)
P PATTO V CPO, PERAK
Under section 27(2) of the Police Act 1967, the licensing authority to issue permits for holding meetings in public places is the OCPD (Officer in Charge of Police District) of the district where the meetings are to be held. The CPO (Chief Police Officer) has no jurisdiction in this matter save that he is the appellate authority after the OCPD has decided the matter at first instance. Through a departmental arrangement, the OCPD did not apply his mind at all to applications for such permits.
He acted as a mere conduit pipe to transmit such applications to his superior authority, the CPO, for decision. The Supreme Court in no uncertain terms ruled that the OCPD, as the licensing authority under the act, had abdicated his functions by
transmitting the applications for consideration and determination by the CPO. He has acted under dictation and in consequence fettering the discretion legislatively vested in him which must be exercised by him, and him alone and the court so declared accordingly.
3. ACTING MENCHANILLY
acting mechanically is recognized as another ground of control of administrative discretion.
Jaganath v State of Orissa
in the order of detention sex grounds were verbatim reproduced from the relevant section and it was proved in the Court that the Minister was “personally satisfied” only of two out of the six grounds mentioned in the statute. The Supreme Court ruled that the Minister had acted mechanically and quashed the order of detention.
Where legislation gives a public authority discretion to make decisions, e.g, to award a licence or to grant permission to carry out a development, the public authority must allow itself to consider each decision on its own merits; the public authority must not ‘fetter’ its discretion by applying a rigid or one-size-fits-all policy to all applications without considering the specific facts of each case. A decision that is made by a public authority that has fettered its discretion in this way may be challenged on the grounds that the decision is unlawful. It may also be challenged on the grounds that the procedure by which it was made was unfair, or on the grounds that it is unreasonable.
EMPEROR V SIBNATH BANERJEE
if authority vested with power To make decision adopted a routine to listen to recommendation or objection of others w/o applying and satisfying himself it will be held acting mechanically and order will be quashed.
4. FETTERING DISCRETION
Where legislation gives a public authority discretion to make decisions.
e.g, to award a licence or to grant permission to carry out a development, the public authority must allow itself to consider each decision on its own merits; the public authority must not ‘fetter’ its discretion by applying a rigid or one-size-fits-all policy to all applications without considering the specific facts of each case.
A decision that is made by a public authority that has fettered its discretion in this way may be challenged on the grounds that the decision is unlawful. It may also be challenged on the grounds that the procedure by which it was made was unfair, or on the grounds that it is unreasonable.
H LAVENDER V MINISTER OF HOUSING
Lavender applied for a permit to extract gravel from some agricultural land. The application was rejected.
ISSUE: Could the Housing Minister lawfully consult the Minister of Agriculture when such an application concerned agricultural land. Not delegated decision, just asked for advice, which is fine.
While it is not for the courts to interfere with the formulation or administration of the Minister’s planning policies, the Minister is not able to dictate the exercise of discretion on the basis of a policy mandate.
MUI FINANCE V MENTERI KEWANGAN MALAYSIA
Minister act of making policy to reject all app made by financial inst. As fettering his own DP, thus the court quashed the order on ground of failure to exercise DP.
PADFIELD V MINISTER OF AGRICULTURE
Padfield and other milk producers in the South East Region argued they should get more milk subsidies to reflect growing transport costs, and applied to court to compel the Minister to appoint an investigation. All milk producers had to sell their milk to the Milk Marketing Board. Differentials were fixed a few years before and transport costs had changed. The SE region argued the difference between it and the Far Western Region should be altered: this would incidentally affect other regions. Board members were elected by individual
regions, so it was impossible for SE producers to get a majority for their proposals. They asked the Minister of Agriculture, Fisheries and Food (Fred Peart) to appoint a committee of investigation. He refused. They requested mandamus. Menteri cakap, if we do, this will have embarrassed me as a minister. They went to HC to challenge, court held, this is wrong. This decision is irrelevant consider embarrassing is irrelevant.
HOL:
ROHANA ARIFFIN V USM
In the case of the applicant Hashim, he had been found guilty by the disciplinary authority of four of the six offences charged. lecturers had been dismissed due to disciplinary prob. They had requested the university to serve them a doct of details on their dismissal. University had never served such doct to them. H : Dec. of dismissal was held as not valid. cited by counsel was a case where the applicant in applying for an order for certiorari was a case where the applicant was denied fair representation. In addition the sentence imposed was enhanced when in effect the disciplinary authority acted in excess of authority.
LIEW FOOK CHUAN V SUMBER MANUSIA
Pemohon telah mula bekerja dengan kumpulan Hong Leong di Malaysia (‘syarikat tersebut’) dalam tahun 1977. Selepas itu, dia telah bekerja dengan beberapa syarikat subsidiari dalam kumpulan tersebut dengan pencapaian yang cermelang, dengan menukarkan syarikat subsidiari yang mengalami kerugian kepada perniagaan yang menguntungkan. Sebagai pengakuan kebolehan pengurusannya yang cermelang itu, dia telah dianugerahkan dengan Award Pengerusi Hong Leong untuk pengurusan cemerlang sebanyak dua kali. Walau bagaimanapun, dalam Februari 1990, tanpa mengira penghormatan yang telah diberikan oleh pemohon kepada majikannya, dia telah dipertuduhkan dengan: (i) mengadakan rundingan untuk menjual beli hartanah tanpa memberitahu syarikat tersebut bahawa adik lelakinya mempunyai kepentingan dalam urusniaga tersebut sebagai broker; dan
(ii) menceburkan diri dalam perniagaan Asia-Pacific Advisory Sdn Bhd dan Finnova Corp Sdn Bhd tanpa mendapatkan kebenaran bertulis terlebih dahulu daripada badan pengurus, lalu telah memungkiri terma dan syarat penggajiannya.
Pemohon dipecat selepas suatu siasatan diadakan oleh syarikat tersebut. Pemohon kemudiannya telah memfailkan suatu permohonan pegembalian semula di bawah s 20 Akta Perhubungan Perusahaan 1967. In this case the defendant had dismissed the plaintiff from his employment and the court has declared that the dismissal is null and void and since the law is that employment is a fundamental right within the expression of art. 5(1) of the Federal Constitution, it is imperative that the function of the court is to ensure that the plaintiff gets back his job and together with his arrears of salaries and all other emoluments
UNREVIEWABLE DISCRETION 1. PREROGTIVE OF MERCY
the right and power of a sovereign, state president, or other supreme authority to commute a death sentence, to change the mode of execution, or to pardon an offender.
Under Malaysian law, the royal prerogative of mercy in contained in Article 42 of the Federal Constitution. Clause (1) of that Article states that “The Yang di-Pertuan Agong has the power to grant pardons, reprieves and respites…” in respect of “all offences” committed in the Federal Territories of Kuala Lumpur, Labuan and Putrajaya.
SIM KIE CHON V SUPERINTENDANT OF PUDU PRISON
2. EXERCISE OF POWER OF ATTORNEY GENERAL JOHNSON TAN HAN SENG V PP
he accused was charged under s.57 ISA 1960. Accused appealed, arguing for equality before the law under Art. 8 of the federal Constitution and that he should be charged under Firearms Act 1960 or FIPA 1971. Held: Art 145(3) FC prevails over Art.8 FC. PP has discretion to prefer charge under: a. Firearms Act 1960 b. FIRA 1971 c. ISA 1960.
In Johnson Tan Han Seng v PP, there are 4 appeals to be heard. The appellants were charged under the Internal Security Act 1960 and some were sentenced to death and life imprisonment. Harun J, in the first instance court decided that the 1969 proclamation has lapse since a period of 7 years has passed. However, on appeal, the Federal Court disagree with the decision and referred to Article 150(3) and decided the Proclamation of Emergency stops to have effect only if it is revoked or Parliament by resolution annuls it.
3. DOCTRINE OF PLEASURE
The term DOCTRINE OF PLEASURE can be traced from a Latin Maxim Durante bene placito which means “during good pleasure”.
The doctrine of pleasure has its origins in English Common law .
In England, the moral rule is that a civil servant of the Crown holds office during the pleasure of the Crown, which means his services can be terminated at any time by the Crown, without assigning any reason
LOOT TING YEE
4. PREVENTIVE DETENTION
Preventive Detention by administrative power, as opposed to judicial detention, is defined as detention without judicial intervention or sanction. This form of detention, inter alia, may be due to detention by the police (executive) for purposes of investigation and also for the purposes of preventing some supposed ‘crime’ which has not yet occurred (preventive detention). Preventive detention is what we know as Detention Without Trial (‘DWT’)
The Internal Security Act (ISA), 1960 was the first preventive detention law which was passed under this constitutional provision.
An individual ‘punished’ without the benefit of a fair and open trial. Many a time, these ‘punishments’ (hereinafter referred to as Detention Without Trial or ‘DWT’) are imposed and/or withdrawn at the discretion of one person, being the Minister (that is the Home Minister).
As long as the Minister is satisfied …
KARAM SINGH V MENTERI HAL EHWAL DALAM NEGERI (MINISTER OF HOME AFFAIRS), MALAYSIA
‘whether there was reasonable cause to detain a person under Section 8(1) of the Internal Security Act 1960 [ISA] was a matter of opinion and policy, a decision on which could only be taken by the executive, and which therefore the courts could not go into ...
‘... while the grounds of detention stated in the order of detention were open to judicial review, the allegations of fact upon which the subjective satisfaction of detaining authority was based were immune from judicial scrutiny ...’. However in the case of Karpal Singh, he was successful in his application for a writ of habeas corpus, and was released by the court only to be subsequently re-arrested again under the ISA. This indicates that a successful judicial review may not be sufficient, as these laws that allow for DWT can be used again to arrest and detain again.