THE Federal Court today ruled that an ouster clause in the Prevention of Crime Act (POCA), which restricts judges from inquiring into grounds for detention as void.
In a two-to-one majority decision, Free Malaysia Today reported Federal Court judge Datuk Nallini Pathmanathan said Section 15B of POCA not only curtails any form of effective judicial review but also mentions that no court “shall have” or shall “exercise any jurisdiction” in respect of a decision by the POCA board.
“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.
Judge Datuk Harmindar Singh Dhaliwal agreed with Nallini’s views but Datuk Rhozariah Bujang abstained from the issue as she deemed it “would be better 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.
On Sept 15, the bench heard an appeal by detainee T Dhinesh, who was held for allegedly being involved 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.
Elaborating on the ouster clause, Nallini said that it was, in essence, in breach of Articles 4 and 5(2) of the Federal Constitution.
She added that the clause was an attempt to remove the court’s ability to scrutinise the legality of findings by the POCA board, which is an “inferior tribunal”.
“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.
“And the POCA board chairman’s refusal to call Dhinesh’s witness during a hearing at the centre is tantamount to a breach of natural justice and procedural non-compliance,” the judge noted. – April 14, 2022
