Oct 28 rehearing for Poca detainee’s habeas corpus appeal

 

The Federal Court is to rehear the application for habeas corpus by a man who is currently held under the Prevention of Crime Act (Poca). (AP pic)

PUTRAJAYA: The Federal Court has fixed Oct 28 to rehear a habeas corpus appeal of a man currently held under preventive detention for alleged criminal activities.

M Nivesh Nair’s counsel S Preakas said the date was given after a case management before deputy registrar Azniza Mohd Ali.

“Parties have been instructed to file written submissions before Oct 13,” Preakas said.

The outcome of this appeal is awaited by the legal fraternity as the apex court is expected to determine if ouster clauses in laws passed by Parliament stopped the courts from inquiring into complaints.

Since early this year, several panels have been divided over the issue of whether the judiciary which serves as check and balance is subordinate to Parliament in deriving its judicial power.

Last month, a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat allowed Nivesh’s review application to set aside a Feb 19 majority ruling and rehear the matter as there was a breach of natural justice.

Others on the panel were Mohd Zawawi Salleh, Zaleha Yusof, Harmindar Singh Dhaliwal and Rhodzariah Bujang.

Nivesh, in his application, 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,” he said.

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 at the Simpang Renggam and Bentong prisons for two years.

They filed habeas corpus applications for their release but were 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 majority 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 dissenting judge, Nallini Pathmanathan, held that the ouster clause was unconstitutional. - FMT