Court’s discretion ‘reduced’ by 2 extradition law provisions, says judge

In January, the High Court granted a challenge by two businessmen to declare Sections 4 and 20 of the Extradition Act 1992 as unconstitutional on grounds that they violated their fundamental liberties and the judicial powers vested in the courts by the Federal Constitution. (Reuters pic)

KUALA LUMPUR:

The High Court has ruled that the court’s powers to decide on extradition cases have been “reduced” by provisions in the Extradition Act 1992.

Justice Wan Ahmad Farid Wan Salleh said Sections 4 and 20 of the Act prevent the courts from exercising their discretion in dealing with suspects wanted by foreign authorities.

Section 4 gives the minister the power to invoke Section 20, which states that the minister can direct the sessions court to detain a suspect pending an executive order for extradition.

“The sessions court, for all intents and purposes, is practically prevented from applying its mind and exercising independent discretion to determine whether the fugitive criminal can be committed to prison to await the order by the minister,” Wan Farid said in his written judgment for a case to challenge the constitutionality of Sections 4 and 20.

Earlier this year, the court granted the bid by two Ipoh businessmen, Ling Yang Ching and Wong Ong Hua, to declare Sections 4 and 20 as unconstitutional, on grounds that they violated their fundamental liberties and the judicial powers vested in the courts by the Federal Constitution.

Wan Farid also said the phrase “direction” under Section 20 gave the impression that the home minister, who is not a member of the judiciary, could direct the court to place a suspect in detention while awaiting an extradition order.

“This violates Article 121 of the Federal Constitution on the doctrine of separation of powers,” he said.

The judge said the case involving Ling and Wong does not hamper other extradition cases pending in court.

“The government can still proceed with the extradition process under Section 19 if there is a binding extradition treaty with a requesting country,” he said.

Under Section 19, a suspect must present evidence to show why they should not be extradited to face charges in another country.

A suspect can be freed if the court finds their bid to stop their extradition is justified.

The government has since filed an appeal against Wan Farid’s ruling and obtained a stay against the judgment.

The Court of Appeal has fixed May 10 for the appeal’s case management.

The US Department of Justice (DoJ) is seeking the extradition of Ling and Wong to face charges for allegedly running a global hacking operation to steal identities and video game technology, planting ransomware and spying on Hong Kong activists.

The duo were arrested by Bukit Aman on Sept 14, 2020.

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Court’s discretion ‘reduced’ by 2 extradition law provisions, says judge

Justice Wan Ahmad Farid Wan Salleh says Sections 4 and 20 of the Extradition Act imply that the home minister can 'direct' courts to detain a suspect wanted overseas.