Previously, the High Courts hearing a habeas corpus application could only hear and decide on matters related to the failure to follow procedures by the detaining authorities.
Federal Court judge Nallini Pathmanathan said Section 15B of Poca not only curtails any form of effective judicial review but stipulates that no court “shall have” or shall “exercise any jurisdiction” in respect of a decision by the Poca board.
She said this restriction had relegated the function of the judiciary to monitor the manner and mode in which the process of preventive detention was carried out, for example in counting the number of days for each stage of the procedure or whether a particular form had been signed by the detainee or not.
“Judicial scrutiny has, via such an ouster clause, been relegated to nothing less than a clerical function,” said Nallini, whose 120-page judgment was made available early this week.
Judge Harmindar Singh Dhaliwal concurred with Nallini’s views but Rhozariah Bujang abstained from the issue as it “would be better and more expeditiously dealt with” at the rehearing of another Poca-related case on April 25.
However, Rhodzariah appeared to be in agreement with the judgment on the doctrine of basic structure, separation of powers and constitutional supremacy.
Nallini also said the ouster clause “purports to remove the court’s ability to scrutinise the legality of findings by the board which is an inferior tribunal”.
In short, she said, “it purports to strip the courts of their constitutionally entrenched supervisory judicial function in both Articles 4 and 5(2) of the Federal Constitution”.
She questioned whether such a provision (Section 15B) operated to
“preclude the courts from ascertaining the constitutional validity of the very clause which seeks to immunise all decisions made under Poca”.
“From the extensive analysis of both the law and case-law, past and present, the answer is a resounding no. It is in substance inconsistent with the provisions of Article 4(1)
itself. Accordingly, it (Dection 15B) is void,” she added.
On Sept 15, the bench chaired by Nallini heard an appeal by detainee T Dhinesh, who was held for alleged involvement in organised crime activities.
The bench allowed the 27-year-old’s appeal on Oct 1 and ordered him to be freed from a two-year preventive detention at the Bentong correctional centre.
Nallini said there was a breach of Section 4(2)(a)(ii) of Poca because the magistrate’s order failed to indicate that a statement from the public prosecutor was produced when she ordered the 38-day remand after the lapse of the first 21-day remand.
She said the Poca board chairman’s refusal to call Dhinesh’s witness during a hearing at the centre amounted to a breach of natural justice and procedural non-compliance.
Lawyers Jay Moy Wei Jiun and Jayarubbiny Jayaraj represented Dhinesh.
Senior federal counsel Shamsul Bolhassan, Muhammad Sinti and Farah Ezlin Yusop Khan appeared for the government.