PUTRAJAYA: The legal fraternity is waiting anxiously to know the direction the Federal Court will take to determine if the basic structure doctrine regarding the separation of powers is part of Malaysian law, a lawyer said.
Syed Iskandar Syed Jaafar Al Mahdzar said the apex court had to decide on the matter as individual judges had taken opposing views since early this year.
“The judges have to decide whether under this doctrine, there is a separation of powers between the three branches of the government and whether the judiciary is subordinate to Parliament,” he told FMT.
Under the basic structure doctrine, the written constitution of a sovereign state has certain characteristics – such as the independence of the judiciary – that cannot be erased by its legislature.
Syed Iskandar said this in response to a five-member Federal Court bench allowing a review application last week by a man held under a preventive detention order for alleged criminal activities.
The court set aside a Feb 19 majority (4 to 1) ruling and will proceed to rehear the appeal of M Nivesh Nair on a date to be fixed soon.
Chief Justice Tengku Maimun Tuan Mat, in allowing the review under Rule 137 of the Rules of the Federal Court, said there was a breach of natural justice in Nivesh’s habeas corpus appeal hearing.
In his application, Nivesh said his counsel and government lawyers agreed that the basic structure doctrine was part of the Federal Constitution but the majority of four judges had ruled otherwise.
“We were not afforded the right to be heard. The matter was decided by the Federal Court based on an issue that was not raised or addressed by parties,” Nivesh said in his application.
He said the majority also relied on a Jan 8 ruling in the case of Maria Chin Abdullah v Ketua Pengarah Imigresen.
Gopal Sri Ram, who represented Nivesh, said the Feb 19 Federal Court ruling went against four previous apex court verdicts, delivered between 2017 and 2019.
“This conduct by the majority is contrary to judicial courtesy and established precedent,” he had submitted.
The majority rejected a challenge to an ouster clause in the Prevention of Crime Act (Poca) and upheld the constitutionality of a provision that excludes the law from judicial review.
Judge Zabariah Mohd Yusof, who delivered the judgment, said Parliament was empowered to pass the Act as a special preventive law.
Zabariah had said the majority was of the view that the provision against judicial review of detention orders did not offend the Constitution as Parliament had been conferred powers to set up an “institutionalised mechanism like the court”.
The dissenting judge, Nallini Pathmanathan, had, however, held that the ouster clause was unconstitutional.
Meanwhile, lawyer A Srimurugan said the judiciary must be independent of the executive and legislative arms of the government.
“Judges are the guardians of the Federal Constitution and it is the judicial branch that must give effect and interpret the laws passed by Parliament,” he said.
He said last week’s verdict had now rendered the majority verdict in the cases involving Maria Chin and Nivesh as no longer a good law.
Nivesh, along with J Devandren, K Rovin Joty, V Ragu, Darweesh Raja Sulaim and R Vellu, had been held under Poca and ordered to be detained without trial in the Simpang Renggam and Bentong prisons for two years.
They filed habeas corpus applications for their release but were rejected by the High Court. They then appealed to the Federal Court on constitutional grounds.