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Monday, February 22, 2021

Repeal ouster clauses to check executive excesses, urges Bar

 

The Malaysian Bar is concerned about ruling by Federal Court dismissing a challenge to an ouster clause in the Prevention of Crime Act.

PETALING JAYA: The Malaysian Bar wants the government to repeal ouster clauses in all legislations that removed the supervisory jurisdiction of the courts.

Its president Salim Bashir said such clauses run contrary to the fundamental tenets of the Federal Constitution and the doctrine of separation of powers, which is a cornerstone of democracy.

“Ouster clauses should not be used to restrict the powers of the judiciary to act as a necessary check-and-balance against the excesses of the executive,” he said in a statement.

Therefore, he said, the Bar wanted a repeal of ouster clauses in all legislations.

Malaysian Bar president Salim Bashir.

He said the doctrine of separation of powers existed to ensure that the three organs of the government – executive, legislature and the judiciary – would not exceed their authorities.

“The courts must therefore be given an opportunity to review any act or decision that poses a threat to the rule of law and good governance,” he said.

The Bar’s statement came after last Friday’s ruling by the Federal Court which dismissed a challenge to an ouster clause in the Prevention of Crime Act and upheld the constitutionality of a provision that excludes the law from judicial review.

The challenge was mounted by six men held under preventive detention orders last year for alleged criminal activities. They were ordered to be detained without trial in Simpang Renggam and Bentong for two years.

The six men, J Devandren, K Rovin Joty, V Ragu, Darweesh Raja Sulaim, R Vellu and M Nivesh Nair filed habeas corpus applications for their release, which were rejected by the High Court.

The apex court also dismissed their appeals by a 4-1 majority. Judge Zabariah Mohd Yusof, who delivered the judgment, said Parliament was empowered to pass the Act as a special preventive law.

Zabariah said the majority of the bench was of the view that the provision against judicial review of detention orders 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.- FMT

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