KUALA LUMPUR: The High Court here has declared two provisions in the Extradition Act 1992 unconstitutional following a legal challenge by two Perak businessmen wanted by the US Department of Justice as part of its investigation into a major hacking syndicate.
Justice Wan Ahmad Farid Wan Salleh said Sections 4 and 20 of the Act violated the judicial power provision set out in Article 121(1) of the Federal Constitution.
In an oral ruling delivered during an online proceeding today, Wan Ahmad said the provisions in the Act gave the executive, in the person of the home minister, power to direct the judiciary, that is, the sessions court, in matters pertaining to the issuance of extradition orders.
“Sections 4 and 20 of the Extradition Act 1992 are unconstitutional, null, void and of no effect as they are in contravention of Article 121(1),” he said.
The ruling may result in Putrajaya encountering difficulties when attempting to hand over persons wanted by foreign countries which have mutual agreements with Malaysia.
The judge also declared that the two sections contravened the personal liberties of affected individuals.
These include the rights to due process of the law as provided for in Article 5, equality and equal protection of the law under Article 8, and the prohibition of banishment under Article 9 of the constitution.
Last year, Ling Yang Ching and Wong Ong Hua filed an originating summons asking the High Court to determine several constitutional questions on the validity of the extradition laws.
Both had been arrested by Bukit Aman on Sept 14, 2020, after the US government applied for their extradition.
They were produced before a sessions court for the government to secure extradition orders.
In their application to the High Court, Ling and Wong alleged that both provisions of the Extradition Act ran afoul of articles in the constitution that touch on fundamental liberties and judicial power.
The US government wants them to face charges in the District of Columbia for allegedly running a global hacking operation to steal identities, video game technology and plant ransomware, as well as to spy on Hong Kong activists.
Section 4 deals with the power of the home minister to issue a direction to extradite a suspect to a requesting country to face charges, while Section 20 says the court must commit the suspect to detention, pending the minister’s order to surrender him.
The duo were represented by Malik Imtiaz Sarwar, Tey Jun Ren and Khoo Suk Chyi, while senior federal counsel Shamsul Bolhassan appeared for the prosecution, the home minister, and the Malaysian and US governments. - FMT
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