This follows a unanimous ruling by a five-member bench of the apex court today to allow a review application by M Nivesh Nair to quash a majority verdict.
Nivesh, in his March 10 application, wanted a new Federal Court bench to use Rule 137 of the Rules of the Federal Court 1995 to set aside the majority verdict and have the matter reheard.
Chief Justice Tengku Maimun Tuan Mat, who delivered the verdict after a virtual hearing, said there was a breach of natural justice in the appeal hearing on Feb 19.
“The earlier majority decision is set aside,” said Tengku Maimun, who sat with Mohd Zawawi Salleh, Zaleha Yusof, Harmindar Singh Dhaliwal and Rhodzariah Bujang.
Lawyers Gopal Sri Ram, S Preakas, J Ravin and Yasmeen Soh represented Nivesh while senior federal counsel Shamsul Bolhassan, Muhammad Sinthi and Liew Horng Bin appeared for the government.
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.
Nivesh, along with J Devandren, K Rovin Joty, V Ragu, Darweesh Raja Sulaim and R Vellu, had been held under the Prevention of Crime Act (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 was rejected by the High Court. They appealed to the Federal Court on constitutional grounds.
However, the court dismissed their appeals by a 4-1 majority.
Judge Zabariah Mohd Yusof, who delivered the judgment, said Parliament was empowered to pass Poca as a special preventive law, with an ouster clause that excludes the law from judicial review.
The court rejected the challenge to the ouster clause in Poca and upheld the constitutionality of the provision that excludes the law from judicial review.
Zabariah said the majority of the bench was of the view that the provision against judicial review 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, held that the ouster clause was unconstitutional.
Nivesh said the majority relied on a Jan 8 ruling in the case of Maria Chin Abdullah v Ketua Pengarah Imigresen.
He said the Feb 19 Federal Court ruling had also conflicted with three previous apex court verdicts, delivered between 2017 and 2019.