Apex court rules Poca clause restricting judicial scrutiny as 'void'

 

The Federal Court has ruled that a clause under the Prevention of Crime Act 1959 (Poca) preventing judicial scrutiny on detention orders as void.

Clause Section 15B stipulated that there shall be no judicial review of any decision made by the Prevention of Crime Board.

This board has the authority to issue detention orders - without trial - for a period not exceeding two years and may renew such detention orders.

In a landmark judgment, Federal Court judge Nallini Pathmanathan (above) ruled that Section 15B was inconsistent with Article 4(1) of the Federal Court and, therefore, "void and of no effect".

Article 4(1) states that the Federal Constitution was the supreme law of Malaysia, and any law inconsistent with the constitution shall be void.

"As a consequence of Section 15B Poca being void, it follows that the court's powers of judicial review are no longer restricted to reviewing merely irregularities of procedure within Poca itself.

"The court is entitled to scrutinise more substantive matters, including, for instance, whether the basis for the detention is in accordance with the relevant preventive detention legislation as well as Articles 149 and 151 of the Federal Constitution.

"Put another way, the court may review the legality of the decision (by the board)," said Nallini.

Section 15B, she said, meant that judicial scrutiny of an executive decision to detain under Poca was limited to procedural matters.

This includes limiting the role of the judiciary to monitoring the manner and mode in which the preventive detention was carried out, such as counting the number of days for each stage of the procedure or whether the paperwork was done properly.

"Judicial scrutiny has, via such an ouster clause, been relegated to nothing less than a clerical function," she said.

Court was not provided with statement of facts

Nallini's judgement was supported by justice Harmindar Singh Dhaliwal but not by justice Rhodzariah Bujang in its entirety.

Rhodzariah opined that the constitutionality of the clause would be better dealt with in the appeal in Nivesh Nair Mohan v Abdul Razak Musa, Pengerusi Lembaga Pencegahan Jenayah & Ors [2021] that was being fixed for hearing on April 25.

Nallini made the ruling following an appeal by T Dhinesh, who is suing the Prevention of Crime Board, the Bentong Special Correctional Centre and the inspector-general of police.

Dhinesh had applied for habeas corpus - a procedure to determine if one's detention was lawful.

Nallini's ruling added that a writ of habeas corpus was to be issued to Dhinesh, allowing him a day in court.

Dhinesh, now 28, was detained on Sept 4, 2019. His two-year detention order was signed on Oct 31, 2019.

Nallini noted that the Federal Court was not provided with a statement of facts in Dhinesh's detention nor the reasons for his detention.

In February 2021, in her dissenting judgement in Rovin Joty A/L Kodesswaran vs Lembaga Pencegahan Jenayah & 4 Ors & 5 others, Nallini also opined that Section 15B was unconstitutional.

At the time, Nallini said to allow Section 15B to remain would thwart access to justice. - Mkini