PUTRAJAYA: The Federal Court today allowed a habeas corpus appeal by a man, currently a restricted resident in Johor for alleged involvement in organised criminal activities.
A five-member bench, chaired by Chief Justice Tengku Maimun Tuan Mat, said Sections 4 and 15B of the Prevention of Crime Act (Poca) intrude into the judicial domain and therefore violated the doctrine of separation of powers.
“We unanimously find that Sections 4 and 15B are unconstitutional, struck down under Articles 121 and 4 of the Federal Constitution,” the top judge said in a ruling delivered after an online proceeding.
Section 4 lays down the procedures for magistrates for the granting of remand orders to the police.
Meanwhile, Section 15B, which is an ouster clause, restricts judges from inquiring into the grounds for detention.
The bench, consisting of Zawawi Salleh, Harmindar Singh Dhaliwal, Rhodzariah Bujang and Zabidin Mohd Diah, also ordered Nivesh Nair’s restriction order to be revoked immediately.
His one-year order will expire on May 5. Earlier, he was placed at the Simpang Renggam detention centre for two years.
Tengku Maimun said this bench also adopted the minority judgments in Maria Chin Abdullah v Ketua Pengarah Imigresen and Zaidi Kanapiah v Home Ministry delivered last year, and the unanimous verdict in T Dhinesh v Home Minister pronounced early this year.
Judge Nallini Pathmanathan, who delivered the judgment in Dhinesh’s appeal, declared that the ouster clause has relegated judicial scrutiny to nothing less than a clerical function.
Today’s ruling restates that the constitution is supreme and any law passed by Parliament must conform to the constitution.
It also affirms that judicial power cannot be encroached by the legislature and the executive arms of the government.
By upholding three previous judgments, today’s ruling also affirms that the basic structure doctrine is part of the constitution.
This means Parliament cannot amend the constitution to remove, for example, the Conference of Rulers or to have a general election once in 10 years.
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 at the Simpang Renggam and Bentong prisons for two years.
They filed habeas corpus applications for their release, but these were rejected by the High Court.
Only Nivesh, represented by Gopal Sri Ram, S Preakas and Yasmeen Soh, filed an appeal to the apex court.
Senior federal counsel Shamsul Bolhassan, Liew Horng Bin and Farah Ezlin Yusop Khan appeared for the government.