April 25 rehearing for Poca detainees habeas corpus appeal

 

The legal fraternity is awaiting the outcome as several panels have been divided over the issue of whether the judiciary is subordinate to Parliament.

PUTRAJAYA: The Federal Court has fixed April 25 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 recent case management before a deputy court registrar.

“Parties have filed written submissions as instructed by the court,” Preakas said.

On July 16 last year, a five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat allowed Nivesh’s review application as there was a serious breach of natural justice.

This is because Nivesh’s lawyers were not given an opportunity to address an issue found in the majority judgment in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor, delivered on Jan 8, 2021.

Preakas said both parties during submission in Nivesh’s appeal in late 2020 agreed that the basic structure doctrine is part of the Federal Constitution, but the Federal Court in a majority decision (4-1) on Feb 19,(2021) ruled otherwise.

The majority judgment delivered by judge Zabariah Mohd Yusof also said Parliament was empowered to pass the Prevention of Crime Act (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.

The outcome of Nivesh’s appeal is now 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 2020, several panels have been divided over the issue of whether the judiciary, which serves as checks and balance, is subordinate to Parliament in deriving its judicial power.

Nivesh, along with J Devandren, K Rovin Joty, V Ragu, Darweesh Raja Sulaim and R Vellu, had been held under 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 these 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. - FMT