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Rovin joty kodeeswaran v lembaga pencegahan jenayah ors

and other appeals 2021 4 clj 1
Constitutional law (International Islamic University Malaysia)

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 1

A ROVIN JOTY KODEESWARAN v. LEMBAGA PENCEGAHAN

JENAYAH & ORS AND OTHER APPEALS
FEDERAL COURT, PUTRAJAYA
ABANG ISKANDAR CJ (SABAH & SARAWAK)
NALLINI PATHMANATHAN FCJ
B
VERNON ONG LAM KIAT FCJ
ZABARIAH MOHD YUSOF FCJ
HASNAH MOHAMMED HASHIM FCJ
[CRIMINAL APPEALS NO: 05(HC)-304-12-2019(B),
05(HC)-308-12-2019(B), 05(HC)-303-12-2019(B), 05(HC)-305-12-2019(B),
C 05(HC)-307-12-2019(B) & 05(HC)-7-01-2020(W)]
26 FEBRUARY 2021

CONSTITUTIONAL LAW: Judicial power – Exercise of judicial power – Ouster

clause stipulating courts precluded from judicially reviewing and scrutinising
D decision of Prevention of Crime Board in detaining appellants under s. 19A(1) of
Prevention of Crime Act 1959 – Whether s. 15B of Prevention of Crime Act 1959
(‘POCA’) purports to limit exercise of judicial power – Whether s. 15B enacted under
art. 149 of Federal Constitution (‘FC’) ousted jurisdiction of courts to perform
judicial review unconstitutional by virtue of art. 4(1) of FC – Whether attempt by
E Parliament to suppress constitutional powers given to courts as provided under
art. 121(1) of FC – Whether there was encroachment on judicial powers – Whether
there was breach of doctrine of separation of powers of Executive, Legislative and
Judiciary – Whether there was contravention of basic structure of FC – Whether
Parliament may restrict fundamental rights on grounds of public order and national
security premised on art. 149 of FC – Whether s. 15B of POCA ultra vires art. 121(1)
F
of FC
CONSTITUTIONAL LAW: Legislation – Constitutionality – Ouster clauses in
legislation dealing specifically with preventive detention enacted pursuant to art. 149
of Federal Constitution (‘FC’) – Ouster clause stipulating courts precluded from
G judicially reviewing and scrutinising decision of Prevention of Crime Board in
detaining appellants under s. 19A(1) of Prevention of Crime Act 1959 – Whether
s. 15B of Prevention of Crime Act 1959 (‘POCA’) purports to limit exercise of judicial
power – Whether s. 15B enacted under art. 149 of Federal Constitution (‘FC’) ousted
jurisdiction of courts to perform judicial review unconstitutional by virtue of art. 4(1)
of FC – Whether attempt by Parliament to suppress constitutional powers given to
H
courts as provided under art. 121(1) of FC – Whether there was encroachment on
judicial powers – Whether there was breach of doctrine of separation of powers of
Executive, Legislative and Judiciary – Whether there was contravention of basic
structure of FC – Whether Parliament may restrict fundamental rights on grounds
of public order and national security premised on art. 149 of FC – Whether s. 15B
I of POCA ultra vires art. 121(1) of FC

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2 Current Law Journal [2021] 4 CLJ

CONSTITUTIONAL LAW: Courts – Judicial power – Ouster clause stipulating A

courts precluded from judicially reviewing and scrutinising decision of Prevention of
Crime Board in detaining appellants under s. 19A(1) of Prevention of Crime Act
1959 – Whether s. 15B of Prevention of Crime Act 1959 (‘POCA’) purports to limit
exercise of judicial power – Whether s. 15B enacted under art. 149 of Federal
Constitution (‘FC’) ousted jurisdiction of courts to perform judicial review B
unconstitutional by virtue of art. 4(1) of FC – Whether attempt by Parliament to
suppress constitutional powers given to courts as provided under art. 121(1) of FC
– Whether there was encroachment on judicial powers– Whether there was breach
of doctrine of separation of powers of Executive, Legislative and Judiciary – Whether
there was contravention of basic structure of FC – Whether Parliament may restrict C
fundamental rights on grounds of public order and national security premised on
art. 149 of FC – Whether s. 15B of POCA ultra vires art. 121(1) of FC
ADMINISTRATIVE LAW: Judicial review – Validity of legislation – Ouster
clause stipulating courts precluded from judicially reviewing and scrutinising
decision of Prevention of Crime Board in detaining appellants under s. 19A(1) of D
Prevention of Crime Act 1959 – Whether s. 15B of Prevention of Crime Act 1959
(‘POCA’) purports to limit exercise of judicial power – Whether s. 15B enacted under
art. 149 of Federal Constitution (‘FC’) ousted jurisdiction of courts to perform
judicial review unconstitutional by virtue of art. 4(1) of FC – Whether attempt by
Parliament to suppress constitutional powers given to courts as provided under E
art. 121(1) of FC – Whether there was encroachment on judicial powers – Whether
there was breach of doctrine of separation of powers of Executive, Legislative and
Judiciary – Whether there was contravention of basic structure of FC – Whether
Parliament may restrict fundamental rights on grounds of public order and national
security premised on art. 149 of FC – Whether s. 15B of POCA ultra vires art. 121(1)
F
of FC
PREVENTIVE DETENTION: Habeas corpus – Dismissal of – Appeal against –
Accused persons ordered to be detained under s. 19A(1) of Prevention of Crime Act
1959 (‘POCA’) – Ouster clause stipulating courts precluded from judicially reviewing
and scrutinising decision of Prevention of Crime Board in detaining appellants – G
Whether s. 15B of Prevention of Crime Act 1959 (‘POCA’) purports to limit exercise
of judicial power – Whether s. 15B enacted under art. 149 of Federal Constitution
(‘FC’) ousted jurisdiction of courts to perform judicial review unconstitutional by
virtue of art. 4 (1) of FC – Whether attempt by Parliament to suppress constitutional
powers given to courts as provided under art. 121(1) of FC – Whether there was
H
encroachment on judicial powers – Whether there was breach of doctrine of
separation of powers of Executive, Legislative and Judiciary – Whether there was
contravention of basic structure of FC – Whether Parliament may restrict
fundamental rights on grounds of public order and national security premised on
art. 149 of FC – Whether s. 15B of POCA ultra vires art. 121(1) of FC
I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 3

A STATUTORY INTERPRETATION: Construction of statutes – Powers under Act

– Prevention of Crime Act 1959, s. 15B – Whether valid ouster clause – Whether
s. 15B enacted under art. 149 of Federal Constitution (‘FC’) ousted jurisdiction of
courts to perform judicial review unconstitutional by virtue of art. 4(1) of FC –
Federal Constitution, art. 151(3) – Prevention of Crime Act 1959, s. 21A
B
The six appellants appealed against the decision of the Judicial
Commissioner which dismissed their application for a writ of habeas corpus.
The six appellants were ordered to be detained under s. 19A(1) of Prevention
of Crime Act 1959 (‘POCA’) by the Chairman/Deputy Chairman of the
Prevention of Crime Board (‘Board’) for a period of two years. Pursuant to
C the order, the respective appellants were to be detained at the respective
Pusat Pemulihan Khas (‘PPK’). These appeals raised a fundamental albeit
controversial question of law in relation to the constitutionality of ouster
clauses in legislation dealing specifically with preventive detention enacted
pursuant to art. 149 of the Federal Constitution (‘FC’). The appellants, who
D were detainees under the POCA, challenged the constitutionality of s. 15B
of the POCA ie, the ouster clause which stipulates that the courts are
precluded from judicially reviewing and scrutinising the decision of the
Board. The first to fifth appellants raised only one issue before this court,
namely, whether s. 15B of the POCA which purports to limit the exercise
E
of judicial power was ultra vires art. 121(1) of the FC. The sixth appellant
raised an additional issue namely whether s. 7B of the POCA had been
complied with by the Board. Corollary to the issues raised above, the
following four points were raised by the appellants in the course of
arguments, namely (i) s. 15B of the POCA which was enacted under art. 149
which ousted the jurisdiction of the courts to perform judicial review was
F
unconstitutional by virtue of art. 4(1) of the FC; (ii) the ouster clause in
s. 15B of the POCA was an attempt by Parliament to suppress constitutional
powers given to the courts as provided under art. 121(1) of the FC;
(iii) s. 15B of the POCA encroached on judicial powers thus breaching the
doctrine of the separation of powers between the three branches, namely the
G Executive, Legislative and the Judiciary; and (iv) s. 15B of the POCA which
sought to oust the courts from exercising their rights under art. 4(1) of the
FC contravened that very article and to that extent contravened the ‘basic
structure’ of the FC. Both counsels acting as amicus curiae supported the stand
by the appellants as to the issue of constitutionality of s. 15B of the POCA.
H The respondents, however, asserted that s. 15B of the POCA was
constitutional and that the appeals by the appellants were without merits and
ought to be dismissed. The respondents submitted that the POCA was
enacted and amended pursuant to art. 149 of the FC. It validates laws passed
notwithstanding that it is inconsistent with arts. 5, 9, 10, or 13 of the FC.
I It is recognised that legislations promulgated under art. 149 may provide for
the curtailment of fundamental rights on grounds of public order and national
security, of which s. 15B under the POCA is one of it. According to the
respondents, preventive laws like POCA is a piece of adjectival law and does

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4 Current Law Journal [2021] 4 CLJ

not create any substantive offence. Although the right to life under art. 5 does A
encompass both adjectival and substantive law, however, the fundamental
liberties provisions in the FC are not without limits but expressed to be ‘save
in accordance with law’. It was the respondents’ submission that the
intention of Parliament in introducing the POCA Bill must also be gathered
from the wordings of the ouster clause provision. In the language of s. 15B B
of the POCA, it was clear and explicit in excluding judicial review by the
court of any decision of the Chairman or Deputy Chairman under the Act
save and except on grounds of procedural non-compliance, hence there was
indeed no ambiguity as to the intention of Parliament that the said provision
was conclusive on the exclusion of judicial review. Therefore, s. 15B of the C
POCA was constitutional. As for the sixth appellant, the respondents
submitted that he failed to raise any contravention of any procedural
requirements.
Held (dismissing appeals)
Per Zabariah Mohd Yusof FCJ (for the majority): D

(1) The POCA is a post-Merdeka legislation, hence the challenge as to the

validity of its provision is governed by art. 4 of the FC. Article 4(1)
provides that legislation passed after Merdeka which is inconsistent
with the FC shall be void. The word ‘law’ in art. 4 means only
ordinary laws enacted by Parliament and excludes law to amend the E
Constitution enacted under art. 159. Only the former must accord with
the FC. The latter need not, as to interpret otherwise, would create an
absurdity where no change whatsoever can be made to the FC.
Therefore, Parliament may amend the Constitution in any way they
think fit, provided they comply with all the conditions precedent and F
subsequent, regarding the manner and form prescribed by the FC.
Thus, amending legislation is valid even if they are inconsistent with
the FC provided there is compliance with the procedures set out in art.
159. The appellants argued that s. 15B of the POCA which was
enacted pursuant to art. 149, which ousted the jurisdiction of the G
courts to perform judicial review, was unconstitutional by virtue of
art. 4(1) of the FC. That could not be so, because art. 4(1) of the FC
would operate in the event s. 15B(1) of the POCA is inconsistent with
any constitutional provision that confer it with the legitimacy and
force of law. Given that art. 149 is the provision which breathes the
H
force of law and legitimacy into s. 15B, it could not be said that the
said section was unconstitutional. Article 4(1) could not be invoked to
strike down any law that was inconsistent with itself because the
Article does not operate by itself and on its own. It must be read in
conjunction with any other relevant article of the FC. (paras 62 & 64-
67) I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 5

A (2) The purpose and policy of POCA is to address the worrying rise in the
crime index, particularly in organised crimes or crimes by a
substantial body of persons which posed an adverse effect on the
economy of the country. Those were the surrounding circumstances
brought to the notice of the court in which the legislation was based
B and those were the facts which could be conceived existing at the time
of legislation. These were reasonable grounds and the appellant had
not shown how POCA or the exercise of the power under it, was
arbitrary and unsupportable. In addition, when deciding on
constitutional issues, the context in which such issues arise may make
C
it appropriate for the courts to give particular weight to the views and
policies adopted by the Legislature. There may be conflicting
decisions to be made by the Executive and the Legislature between the
rights of the individual and the demands of society. There may be
areas of judgment where the courts will defer on democratic basis, to
the considered views of the elected body or persons whose decision is
D
said to be compatible with the needs of society. Thus, a balance must
be struck between the needs of the individual and society. The
rationale for the presumption of constitutionality is because
Parliament is in a better situation to decide on social policy matters
rather than the courts. Parliament represents the will of a
E democratically elected majority, hence their decision ought to be
accepted as legitimate. The courts, which are not elected from the will
of the population, are in no position to determine on policy matters,
are tasked with the resolving of disputes independent from the
influence of the media, popular public opinion or pressure groups in
F the analysis and application of legal rules and principles and
interpretation of legal texts. (paras 75-77)
(3) The FC empowers Parliament to legislate in respect of ‘preventive
detention’. As the term connotes, ‘preventive detention’ is the
detention of a person with a view to preventing the person from acting
G in any manner prejudicial to public order, it is necessary that that
person should be detained, or that it is necessary for the suppression
of violence or the prevention of crime involving violence that that
person should be detained. Unlike the law on detention upon
conviction of a crime or detention during investigation of a crime, the
H laws on preventive detention are in a separate classification altogether
from the ordinary criminal laws. As the word ‘prevention’ assigned to
it indicates that the detention is to avoid and prevent the breach of law.
This is as opposed to the ordinary detention which is ‘reactive’,
namely after the Commission of an offence, or is known as punitive
I laws. The distinctive feature of the law in preventive detention
permits it to be treated separately from the ordinary criminal
detention. (paras 78 & 80)

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6 Current Law Journal [2021] 4 CLJ

(4) The POCA, which relates to preventive detention, and was enacted A
pursuant to art. 149 of the FC, is to be treated separately from the
general criminal law of detention promulgated under art. 74 of the FC.
The POCA is a Federal law, which provides that any provision in any
Act of Parliament whose recital satisfies the same is valid
notwithstanding that the provision may be inconsistent with arts. 5, 9, B
10 or 13 of the FC. In these present appeals, in the context of the
POCA, Parliament may restrict fundamental rights on grounds of
public order and national security premised on art. 149 (1)(a) and (f)
of the FC. As the preamble of the POCA states that it was enacted
pursuant to art. 149 of the Constitution, it validates laws passed C
notwithstanding that it is inconsistent with any of the provisions of
arts. 5, 9, 10, and 13 of the FC. Of concern are the fundamental
liberties provisions of arts. 5 and 9. However, fundamental liberties
although enshrined under the FC, are not absolute and can be taken
away by the passing of laws by the Legislature pursuant to art. 149.
D
That validly enacted law in our present context is s. 15B(1) of the
POCA which prohibits judicial review of the Board’s decision save
and except on procedural non-compliance. There is a similarity in the
preamble of the POCA and the desired objective as expressed in
art. 149(1), in particular item (a) thereof, namely, ‘action has been
taken or threatened by a substantial body of persons both inside and E
outside Malaysia to cause a substantial number of citizens to fear,
organised violence against persons or property’. This was the
additional condition which the FC expressly provides for, that must
be met before a piece of legislation which limits the rights of a person,
may be enacted. Thus, the POCA satisfied this condition and it is a F
special law, of an entirely different Legislative regime relating to
preventive detention enacted pursuant to art. 149 of the FC. The
Legislative scheme of s. 15B of the POCA is to limit the judicial
review power of the High Courts to procedural non-compliance by the
decision maker. (paras 81, 82 & 84-86) G
(5) There is no single provision in the FC that can claim superiority over
the other provisions. Article 4(1) provides for a declaratory provision
of the FC being the supreme law of the Federation and any legislation
passed after Merdeka which is inconsistent with the FC is void. It
provides for the challenge on Legislative competency and validity and H
the manner of challenging it. To qualify or suspend the application of
art. 4 in art. 149 would run contrary to the very objective and purpose
of art. 4, namely, the declaration of constitutional supremacy of the
FC. Article 4 could not be suspended by any other article in the FC.
Article 4 is unlike the provisions in arts. 5, 9, 10 or 13 which relate I
to fundamental rights, which can be, and are, suspended by art. 149.
Article 149 therefore stands on equal footing with other provisions in
the FC. Article 149 is the power given to Parliament to enact

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 7

A laws which satisfies the requirement as stated in paras. (1)(a)-(f).

Article 4(1) is not to operate the way the appellant suggested it to be.
(para 88)
(6) From the scheme of the POCA, it is a special law where its underlying
purpose or object bear significance in the interpretation of preventive
B
laws promulgated pursuant to art. 149. Article 149 affirms the validity
of legislation enacted against subversion, action prejudicial to public
order and the like. From the provisions of the FC and the POCA, the
decision-makers in the substantive or factual matter of preventive
detention, are the Executive. Sections 15B and 21A of the POCA were
C crafted with art. 151(3) of the FC in mind. Both ss. 15B and 21A of
POCA were enacted to give effect to the purpose and objective of the
POCA, arts. 149 and 151(3) of the FC. Therefore, as ss. 15B and 21A
of the POCA emanated from art. 149 of the FC and buttressed by art.
151(3) of the same, how could s. 15B of the POCA not be
D constitutional? Section 15B of the POCA was enacted to amplify the
emphasis on national interest under art. 151(3) of the FC. From the
scheme of art. 151(3) of the FC, and s. 21A of the POCA, the authority
is bound not to disclose facts which would be against national interest.
The authority to decide what is public interest would be the Executive
E
who has the expertise. Therefore, in approaching the present appeals,
the court must be guided by the clear words of the FC and POCA, in
this case art. 149, art. 151(3), s. 15B and s. 21A of the POCA. It was
within the province of the Legislature in accordance to the powers
given to it under art. 149 of the FC to enact the impugned provision
to address the mischief of national security. It was also within the
F
realm of the Legislature’s power to enact the impugned provisions
which provides for limited judicial review. Hence, one could see the
stature that was being given to legislations promulgated under art. 149
in that, laws enacted under the said article was constitutional despite
it being inconsistent with certain articles of the FC. (paras 91 & 93-96)
G
(7) The impugned law was constitutional as art. 149 (to be read with
art. 151(3)), authorised it. The task of the courts, as provided in
art. 121(1), is to give full effect to what is provided by Federal law,
in this case, s. 15B of the POCA which allowed for limited judicial
review. Hence, premised on the aforesaid, it could not be said that by
H
limiting the courts’ power in s. 15B of POCA, the Legislature/
Parliament had encroached on the jurisdiction of the courts. It is the
Legislature/Parliament that confer the court that jurisdiction and
power. As such, there was no usurpation of judicial powers by the
Legislature. The courts exercise its powers as provided by the POCA,
I a Federal law, which is precisely what art. 121(1) of the FC provides.
Section 15B which limits judicial review by the courts only on
procedural non-compliance was thus not unconstitutional by virtue of
art. 4(1) of the FC (paras 97, 98 & 101)

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8 Current Law Journal [2021] 4 CLJ

(8) The court’s function as a court of law is to decide cases that come A
before it in accordance with Federal law, which is enforced at the
material time. In this respect, art. 121(1) of the FC is clear, in that it
provides that courts are established by law (including the FC) and
court’s jurisdiction and the source of powers are derived from Federal
law. ‘Federal law’ is defined by art. 160(2) to mean any Act of B
Parliament. Courts vis-à-vis judges do not derive their power in a
vacuum and neither could they create jurisdiction for themselves. This
was for Parliament to decide via the passing of Federal law when
art. 121(1) states that ‘... and the High Courts and inferior courts shall
have jurisdiction and powers as may be conferred by or under Federal C
law’. Parliament has the Legislative power to enact Federal law in
relation to preventive detention under art. 149. Section 15B of the
POCA is Federal law, and that is where the courts derived its power
in judicial review under the POCA. This was premised on art. 121(1).
The courts’ duty is to interpret what is provided in s. 15B of the
D
POCA. Hence, it was incorrect to state that s. 15B was an attempt by
Parliament to suppress constitutional powers given to the courts as
provided under art. 121(1). The exercise of judicial power does not
begin until and unless the court is called upon to do so. Therefore, the
substratum of laws must first exist before judicial authority comes into
being. Such power exists because Parliament enact it to be so. E
(paras 121 & 122)
(9) Separation of powers is within the system and very much alive. If each
branch is conscious and understand their respective role in discharging
their role responsibly, there should not be any fear of power of abuse
F
or infringement of the rights of the citizen. In as much as it is the
function of the Judiciary to interpret laws, it is also as much a function
of the Legislature to pass laws, so long as it adheres to the manner as
stipulated under art. 159 of the FC. Hence, the test of constitutionality
to be devised by the courts in deciding whether an impugned provision
is constitutional or not and in determining ‘to what extent the doctrine G
(of separation of powers) applies depends on the provision of the
Constitution ... [No] provision of the law may be struck out as
unconstitutional if it is not inconsistent with the FC, even though it
may be inconsistent with the doctrine’. By limiting judicial review to
procedural non-compliance by virtue of s. 15B of the POCA, H
Parliament did not encroach onto the judicial powers of the court as
it was within their power to do so. The court in exercising such
powers act according to what is prescribed and limited by the POCA,
a Federal law. Section 15B was thus not inconsistent with art. 121(1)
of the FC. Therefore, the ouster clause as in s. 15B of POCA does not I
suppress constitutional powers given to the courts as provided under
art. 121(1) of the FC. Neither did it encroach on judicial powers thus
breaching the doctrine of the separation of powers between the three

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 9

A branches, namely the Executive, Legislative and the Judiciary. In any

event, it could not be said that s. 15B of the POCA was
unconstitutional because it breached the doctrine of separation of
powers. (paras 133, 134 & 136)
(10) Judicial review on the decision of the tribunals exercising similar
B
functions to the Board should not be questioned except on procedural
non-compliance. Such discretion in determining the substantive/
policy matter by the Board was outside the reach of the courts.
Allegations of fact in which the order for detention had been based on
alleged activities of the detenu and the satisfaction of the Executive
C being subjective was not open for the court to examine as to the
sufficiency of the allegations. Allegations of facts deal with matters
within the province of national policy in relation to the security of the
nation whereby the subjective satisfaction of the Executive on those
allegations could not be substituted by an objective test in a court of
D law. (paras 140 & 141)
(11) Parliament has engaged clear words in s. 15B(1) of the POCA and the
provision had been drafted with precise clarity, that there shall be no
judicial review by the court of any act or decision by the Board in
exercise of its discretionary power in accordance with the Act, except
E for non-compliance of any procedural requirement. Judicial review
under the section is defined to include proceedings instituted by way
of a writ of habeas corpus. Due to the clarity in the wordings in the said
section, there was no doubt as to the intention of the Legislature that
the section was conclusive on the exclusion of judicial review in habeas
F corpus cases under the Act. Such effect of the ouster clause in s. 15B(1)
of POCA had excluded judicial review of the act of the Board save and
except for procedural non-compliance. It was not permissible for the
court to intervene and disturb a statutorily unreviewable decision,
after Parliament having excluded judicial review. The intention of
G
Parliament or of the Executive was revealed in the Act of Parliament
by the language used and the courts should carry out these intentions.
It was not the function of the judge to read something into the
provision which is not there. If he does so, he is indeed encroaching
on the function of the Legislature. The words in s. 15B of the POCA
are plain and unambiguous. Given that s. 15B was enacted under
H
art. 149 and that it had been drafted with prescience and perfect
clarity, it was not the function of the court to give a different meaning
than was intended by the Legislature. (paras 164, 165 & 170)
(12) As the concept of basic structure was vague and indefinite, it would
I
be left open to each judge to come up with what each of them would
term as ‘basic structure’ of the FC, which leads to ‘uncertainty’ in the
interpretation of the FC and the laws. There is no definite guidance as
to what is and how to define the basic structure or what is the

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10 Current Law Journal [2021] 4 CLJ

applicable test of guidance. Central to the concept of basic structure A

is that, the provisions of the constitution which are implicitly regarded
as constituting the basic structure, are not subjected to any
amendments, in perpetuity. In matters of interpretation, between the
implicit concept and the express textual provision, the express textual
provision shall take precedence in the principles of interpretation. To B
hold to the view that what constitutes basic structure in the FC could
not be amended, would go against the clear and express provision of
art. 159 of the FC, which allow for amendments according to the
required mandatory pre-conditions. Putting an implied limitation on
the powers of Parliament as postulated by the basic structure concept, C
clearly contravened the very provision of the FC as art. 4(1), which
states that the FC is supreme and that only Parliament have the power
to make constitutional amendments even if they are inconsistent with
the FC. Parliament may amend the FC as it deems fit, so long as they
comply with the necessary requirements precedent and subsequent
D
regarding the manner and form prescribed by the FC, as stated in
art. 159. (paras 189-192)
(13) The determination of the constitutionality of the impugned provision
has to be based on what is provided in the FC. It could not be
premised on some foreign basic structure concept which is amorphous E
where uncertainty will ensue in the application of our law. Hence, the
basic structure doctrine is not applicable in construing the
constitutionality of s. 15B(1) of the POCA in view of art. 159. There
was nothing stated in the FC as to which provision in the FC formed
the basic structure. To challenge the constitutionality of s. 15B of the
F
POCA, it has to be tested against any of the provisions of the FC, not
against the concept of basic structure. Section 15B of the POCA
derived its force of law and validity from art. 149 of the FC. It could
not be said that s. 15B ousted the courts from exercising its powers
under arts. 4(1) or 121(1) of the FC. The courts could exercise its
supervisory judicial powers in cases where there was non-compliance G
of procedural requirement. It is not the basic structure that an
aggrieved person is entitled to the fullest form of remedy in
challenging a public authority’s decision. Neither could it be said to
contravene art. 4(1) and to that extent contravened the ‘basic structure’
of the FC. (paras 193 & 196) H

(14) Section 15B of the POCA, which was not a complete ouster clause but
only limited the exercise of judicial review to procedural
non-compliance, was therefore not ultra vires art. 121(1) of the FC.
Hence, s. 15B of the POCA was not unconstitutional and was valid.
As the appeals by the five appellants hinged on their appeal on this I
single issue of constitutionality of s. 15B(1) of POCA, their case
therefore failed. As for the sixth appellant, whose appeal was

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A dependent on the constitutionality issue and the procedural non-

compliance issue, he failed to raise any procedural non-compliance in
the decision making by the Board. (paras 253-255)
Per Nallini Pathmanathan FCJ (dissenting):
B (1) It is imperative to bear in mind that we practice constitutional
supremacy where the Federal Constitution (‘FC’) is the supreme law
of the land. Therefore legislation, albeit preventive detention,
legislation must conform to, or fall within the ambit of the FC. If there
is a contravention of any of the provisions of the FC, the legislation
or statutory provision within such legislation is void, as set out in
C
art. 4(1) of the FC. Any such legislation or statutory provision that is
challenged on the grounds of constitutionality as provided for under
art. 4(1) of the FC must be tested against the provisions of the rest of
the FC to answer the issue of constitutional validity. The answer as to
whether there has been an infringement of any provision of the FC will
D
turn on a construction of the statute as against the FC. (paras 319
& 320)
(2) Article 4(1) of the FC enshrines the ability of the Judiciary to entertain
a challenge in respect of any legislation or statutory provision enacted
by Parliament. Whether the challenge is successful or otherwise is a
E
different matter. It must be the Judiciary that is armed to ascertain
constitutionality as such a function does not fall within the purview of
the other two arms of Government. It follows from this that any or
all legislation (and therefore statutory provisions in legislation)
enacted by Parliament can be made the subject matter of challenge
F
under art. 4(1) of the FC. This was clear from the second part of
art. 4(1) of the FC which provides that law that is inconsistent with
the FC is void. It is not possible to ascertain whether a law is
consistent or inconsistent with the FC, until and unless a challenge is
made as to its constitutionality on the basis of art. 4(1) of the FC. So
G to enact a law which precludes the application of art. 4(1) of the FC,
would defeat the very objective and purpose of that article. Article
4(1) of the FC would be rendered otiose. In other words, there must
be a means of challenging the ‘law’ in question, failing which the
purpose and effect of art. 4(1) of the FC would be nugatory. (paras
H 323-325)
(3) The Judiciary’s role in ensuring that there is a check and balance on
both Legislative and Executive action (namely the rule of law) is
enshrined in art. 4(1) of the FC. To that extent, art. 4(1) of the FC
enshrines the twin fundamental pillars of a constitutional democracy,
I namely the rule of law and the doctrine of the separation of powers.
It is the root or source for the conferment of judicial power as
exemplified in art. 121 of the FC. It reflects the scope and ambit of

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12 Current Law Journal [2021] 4 CLJ

judicial power, as it expressly recognises that it is the Judiciary that A

exercises the power to provide a check and balance for the acts and
omissions of the other two arms of Government, namely the
Legislature and the Executive. The right to challenge legislation is an
integral part of the FC. Any statutory provision which seeks to
preclude the courts from exercising their rights under art. 4(1) of the B
FC contravened that very article and to that extent contravened the
substance of the FC and was void. Section 15B of the POCA is an
ouster clause that seeks to do precisely that, namely preclude or oust
the jurisdiction of the courts to examine decisions made in relation to
preventive detention by an Inquiry Board. It stipulates that no court C
can exercise its powers of judicial review to do so. That, in itself, was
a contravention of art. 4(1) of the FC which enables all statutory
provisions to be examined for constitutional validity. In order to
examine its constitutional validity, it followed that s. 15B of the
POCA, being a component part of legislation enacted by Parliament,
D
is subject to challenge under art. 4(1) of the FC. (paras 326-329)
(4) The fact that this legislation was promulgated pursuant to art. 149 of
the FC does not make either the legislation itself, or statutory
provisions within it, immune from such challenge or examination
under art. 4(1) of the FC. There is nothing in art. 149 of the FC that E
protects legislation enacted under it from constitutional challenge
under art. 4(1) of the FC. If it were not so, it would be possible for
Parliament to enact extreme legislation without any recourse to
examine or review such legislation to ascertain whether it complied
with the FC, the supreme law of the land, where constitutional
F
supremacy reigned. It is implicit in art. 149 of the FC itself, that there
could be no ouster of judicial power as art. 4(1) of the FC is not
excluded. Instead, it provides that infringements of arts. 5, 9, 10 and
13 of the FC do not render legislation made pursuant to it,
unconstitutional. Reverting to the power of the courts to ascertain the
constitutional validity of a statutory provision or legislation, it G
remains essential that law enacted by Parliament remain open to
judicial scrutiny for that purpose. (paras 331-333)
(5) The existence of art. 4(1) of the FC in no way confers a system of
judicial supremacy either. The fact that the courts are tasked with
H
ascertaining the constitutionality of legislation passed by the
Legislature and executed by the Executive, conforms to the most basic
precepts of the separation of powers and thereby the rule of law.
Therefore, any attempts to suggest that the Judiciary is usurping the
powers of the Legislature and thereby the franchise of the people is
misplaced, because the Judiciary functions only to point out and I
prevent acts that are inconsistent with the FC. It is therefore the FC
that is supreme, and the Judiciary merely the means of ensuring that
the provisions of the FC are protected. At all times the Judiciary is,

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A or ought to be aware, of its role as performing such a check and

balance and encroach no further. The courts do not and should not
encroach on matters of security, policy et cetera, which are not within
the ambit of its scope of function. The Judiciary is very much alive
to this boundary, as that comprises an essential component of the
B doctrine of the separation of powers. An ouster clause such as s. 15B
of the POCA does encroach upon judicial power expressly and
directly, as it proscribes judicial scrutiny for inconsistency with the
FC. As such, it does injury to the doctrine of the separation of powers
and thereby the rule of law. (paras 334, 335 & 339)
C (6) Indeed if the position were taken that ouster clauses rendered
legislation such as s. 15B of the POCA immune from examination
under art. 4(1) of the FC, that would afford the Legislature and the
Executive immense and arbitrary powers with no redress or respite to
persons affected and/or aggrieved by the implementation of such
D legislation or the exercise of discretion within such legislation,
illegally or without valid basis. That would run counter to the rule of
law that comprises a basic and fundamental tenet of our Westminster
model of democracy and comprised the lifeblood of the FC. Applying
the doctrine of stare decisis, this court was bound to abide by the
E
principle establishing that art. 4(1) of the FC (as expounded in both
Semenyih Jaya and Indira Gandhi) is sacrosanct and places an express
duty on the courts to subject any statute or Executive action or
omission arising therefrom to scrutiny, when challenged, to ensure
that it complied with the FC. To do any less would amount to an
omission to adhere to a judge’s oath to protect the FC. (paras 341 &
F
342)
(7) It was important that the distinction between the concept of
constitutional review is not confused with the remedies available for
judicial review. The principle or doctrine of judicial review is an
G
essential element in the milieu of the FC. It is an inextricable
component of art. 4(1) because the Judiciary could not fulfil its
function under that article unless judicial review was employed. So,
equating the doctrine with the remedy, was misconceived. The FC as
it stands today must be read in accordance with its provisions as
objectively construed in the context of the nation as a constitutional
H
monarchy premised on parliamentary democracy. As the FC now
stands, it does not envisage a law that is unjust, arbitrary,
unreasonable, oppressive or disproportionate. Accordingly, the courts
and judicial power subsist to ensure that in accordance with the
guarantee of the FC, both the substantive and procedural content of
I our laws should ensure that there is no transgression of the limits of
the FC. Article 149, while authorising the suspension of fundamental
rights in arts. 5, 9, 10 and 13, must still comply with arts. 4, 8, 121
and 151 of the FC. (para 359)

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14 Current Law Journal [2021] 4 CLJ

(8) Article 121(1) of the FC must be construed harmoniously with A

art. 4(1) of the FC. The two provisions could not be construed so as
to give rise to a significant and fundamental difference relating to the
jurisdiction and ambit of judicial power. The seeming anomaly that
arises if a literal reading of the express words of these two articles is
considered is this. Article 4(1) of the FC allows the Judiciary to strike B
down legislation ie, Federal law that is inconsistent with the FC.
However, art. 121(1) of the FC, on a literal reading, suggests that
judicial power is circumscribed by and/or under Federal law. The
latter proposition means in effect that the powers of the Judiciary are
established and delineated by Federal law as enacted by Parliament. C
That has the effect of: (i) abrogating inherent judicial powers including
the power to scrutinise legislation for constitutional validity;
(ii) ignoring completely the effect of art. 4(1) of the FC; (iii) effectively
imposing a constitutional system of parliamentary supremacy as
opposed to constitutional supremacy. Such a construction was wholly
D
untenable. A harmonious construction of judicial power as contained
in these two articles would entail ensuring the doctrines of a separation
of powers and the rule of law remain as foundational features of
judicial power. Therefore, in construing art. 121 of the FC in relation
to the phrase ‘... shall have such jurisdiction and powers as may be
conferred by or under Federal law’ the only harmonious meaning that E
could be accorded to those words is that the specification, description
and arrangement of the powers of the courts is to be enacted by
Parliament. However, any such description or listing or setting out of
the powers of the various courts in the hierarchy of the judicial arm
of Government by Parliament, could not in any manner derogate the F
powers of the courts to act as a check and balance vis-a-vis the
Executive and the Legislature, as enshrined in art. 4(1) of the FC.
(paras 368-372)
(9) And ‘law’ or ‘Federal law’ as enunciated in art. 121 of the FC must
have the same meaning as ‘law’ in art. 4(1) of the FC. If not so, and G
the word ‘law’ in both articles carried different meanings, there would
be confusion and the FC would be anomalous, unpredictable and
unreliable. Such a jarring construction was unsound. And ‘law’ in
art. 4(1) of the FC must refer to ‘law’ that is valid under the FC. It
followed that ‘law’ under art. 121 of the FC must also be law that is H
valid under the FC. That in turn means that any ‘Federal law’ as stated
in art. 121 of the FC can be constitutionally challenged to ensure that
it is constitutionally valid under art. 4(1) of the FC. And only the
courts could ascertain this issue. So, the courts would only enforce,
recognise and give effect to law that was constitutionally valid. I
Parliament could not enact any law and expect the courts to exercise
their judicial power in accordance with such law, no matter its content
and no matter whether it conformed to the FC or not. So, the courts

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A only act in accordance with constitutionally valid Federal law, where

the role of ascertaining constitutional validity falls on them. Again,
therefore art. 121 of the FC could not be construed to mean that the
Judiciary is bound to act in accordance with any Federal law enacted.
Objectively viewed, given art. 4(1) of the FC, judicial powers
B remained intact. (paras 376-379)
(10) In light of the foregoing construction that judicial power under the FC
remains intact and has always remained intact, s. 15B of the POCA
could not possibly have the effect of divesting the courts of their power
to scrutinise legislation and Acts following from such legislation to
C ensure that they are constitutional. However, the scope and ambit of
art. 4(1) in relation to s. 15B of the POCA is limited. The effect of
s. 15B of the POCA being declared unconstitutional, is that it allows
the courts to judicially scrutinise the decision in issue, applying the
full powers of judicial review available to a court of law exercising its
D supervisory function. It does not automatically follow that the act or
decision of the Board is invalid or void. But with ouster clauses, we
are not dealing with the constitutionality or otherwise of legislation on
its substantive merits. We are dealing with the right to challenge the
constitutionality of legislation. If ouster clauses were allowed to
E
prevail then that right of challenge in art. 4(1) of the FC would be
eroded. To that extent, art. 4(1) of the FC is the fountainhead of the
FC and reflects the essence of democracy in that it comprises the
fundamental right of the people of this nation to guard against
arbitrary, invalid or wrongful Legislative and Executive acts or
omissions. (paras 381, 382, 384 & 385)
F
(11) The fact that art. 4(1) of the FC does not descend into the particulars
of how such challenge is brought in the courts, in no way detracts from
a citizen’s substantive legal right to do so. The mode of challenging the
constitutionality of legislation (or statutory provisions in such
G
legislation) is set out in the Courts of Judicature Act 1964 (‘CJA’)
which affords the adjectival remedy to give effect to art. 4(1) FC.
Section 25 of the CJA provides for the additional powers of the High
Court which include the right to issue prerogative writs such as
certiorari or judicial review, mandamus, habeas corpus and such other
proceedings as may be necessary to give effect to the right to challenge
H
the validity of legislation. These common law remedies are given
effect by inclusion in the CJA. Habeas corpus is another means of
judicial review. Additionally, the Criminal Procedure Code (CPC) in
s. 363 also affords the adjectival basis for the bringing of habeas corpus
applications. Therefore, the prerogative writs such as judicial review
I or habeas corpus comprise the mode or vehicle through which art. 4(1)
of the FC is given life or effect. If these procedural or adjectival modes
of challenging the constitutionality of legislation are not allowed, then
art. 4(1) of the FC would be rendered nugatory or ineffectual. These

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16 Current Law Journal [2021] 4 CLJ

prerogative writs such as judicial review comprise the lifeblood/ A

pacemaker of art. 4(1) of the FC. Given the actuality of art. 4(1) of the
FC and the adjectival provisions which allow for its enforcement,
legislation or statutory provisions, such as s. 15B of the POCA which
purports to preclude or oust judicial review or the jurisdiction of the
courts, was null and void. (paras 387-390) B

(12) It is open to the courts in this jurisdiction to not only examine the
exercise of the Executive discretion but to also examine and declare
void, if necessary, legislation or statutory provisions that purport to
restrict such a right in a manner inconsistent with the FC. Ultimately,
the purpose of art. 4(1) of the FC is to ensure that both procedurally C
and substantively, the underlying legislation and the relevant statutory
provisions are constitutionally enacted, and secondly whether the
exercise of Ministerial discretion is constitutionally exercised, or
exercised in accordance with administrative law principles. In doing
so, the courts are bound to balance the fundamental liberties accorded D
in Part II FC against the national security needs of the country. It may
well be that legislation is ultimately found to be constitutional, as
many of the fundamental liberties are effectively suspended in relation
to such legislation. However, the examination process involves a
consideration of both constitutionality as well as the ‘vires’ of the E
Ministerial discretion. Both access to justice and adherence to the rule
of law are ensured in this jurisdiction under the FC. (paras 409-411)
(13) In interpreting legislation, our courts are bound to give effect to
constitutional provisions. This is particularly so when a statute is
capable of more than one construction. This, in turn, means adopting F
an interpretation that seriously considers and gives weight to the need
to protect human rights and adhere to the rule of law. The provisions
seeking to derogate from fundamental liberties should be restrictively
construed, such that any derogation must be stated in clear and
unequivocal terms. The fact that art. 149 of the FC allows for the G
abrogation of certain constitutional rights including art. 5(1) of the FC
does not mean that the court could not adopt an interpretation which
seeks to intrude minimally on such fundamental liberties. Article 149
of the FC is not a licence to forfeit fundamental liberties altogether.
Legislation enacted pursuant to art. 149 of the FC should defer to the
H
general tenor of the FC, which enshrines the rule of law, and to that
extent recognises that there are express limits on Legislative and
Executive power. Adopting a literal approach to preventive detention
legislation would allow for arbitrary and unfettered discretion could
not be right. (paras 413-415)
I
(14) Under our FC, the Judiciary has been accorded specific powers under
art. 4 of the FC to undertake the exercise of judicial review, when a
challenge is made to the constitutionality of a law. Far greater powers

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A have been accorded to the courts in this jurisdiction. And this is

ultimately to ensure compliance with the rule of law. However, it is
equally important to note that any such judicial review that is
undertaken ought to be no more or no less than is proportionate and
necessary to maintain the rule of law in the context of the statute or
B statutory provision in issue. In the present context of s. 15B of the
POCA is that the courts must circumscribe their powers of judicial
review to ensure that the courts do not usurp or seek to substitute their
decisions in place of that of the Board. To that extent, it is the legality
of the decision in issue that is subject to judicial scrutiny. Further, it
C
is also open to judicial scrutiny on the available bases for judicial
review in this jurisdiction, namely illegality, irrationality and
procedural impropriety (which already formed a basis). A decision
would also be subject to judicial review where it is premised on an
illegal basis. The extent of judicial scrutiny will depend on the facts
of each particular case, but the courts should restrain themselves from
D
intervening on the basis of the factual merits of the Board’s decision.
(paras 436-438)
(15) In our jurisdiction, the foremost consideration is the constitutionality
of the statutory provision or statute given the existence of art. 4 of the
E
FC. If the statutory provision in question is constitutionally valid,
then the decision comes under judicial scrutiny by way of judicial
review. It is at this juncture that the principles of administrative law
come into play and it is apparent that the overriding principle that
must be adhered to is the rule of law. In the context of the particular
statute in question in this jurisdiction, such as s. 15B of the POCA, as
F
the ouster clause is unconstitutional, it followed that the attempt to
preclude judicial scrutiny was invalid. Accordingly, the Board’s
decision was subject to judicial scrutiny to ascertain whether his
decision was consonant with the rule of law, applying the principles
of administrative law. In the context of s. 15B of the POCA, the
G proportionate and necessary judicial scrutiny to be undertaken was
whether the Board’s decision to detain the detainee under POCA was
tainted with illegality or mala fides and whether it was consonant with
the objectives of the legislation and art. 149 of the FC. It is subject to
the normal principles of judicial review where the court undertakes to
H ascertain whether the decision is tainted by illegality, irrationality and
procedural impropriety. (paras 441-443)
(16) As s. 15B of the POCA was null and void and therefore ineffective,
it was open to the court to review: (i) the legality of the exercise of
the Board’s discretion, so as to ascertain whether the decision was in
I accordance with the intent and object of POCA and meets the
requirements of legitimacy proportionality and procedural propriety.

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In this context it is important to emphasise that the exercise of the A

Board’s discretion may be judicially scrutinised in respect of matters
other than procedural non-compliance; (ii) in other words, not only
are matters disclosing procedural non-compliance available for
review, other substantive matters are equally available for review in
the course of determining habeas corpus matters. The courts are not B
restricted to examining those decisions within the narrow confines of
mistakes relating to procedure stipulated in the relevant legislation in
the course of detaining a person under such legislation. Therefore, it
was open to the courts to consider both procedural and substantive
grounds in reviewing the exercise of discretion of the Board in the C
course of a habeas corpus application. Thus, s. 15B of the POCA was
unconstitutional, and was hereby struck down for being inconsistent
with art. 4(1) FC. (paras 448, 449 & 473)
Bahasa Melayu Headnotes
D
Keenam-enam perayu merayu terhadap keputusan Pesuruhjaya Kehakiman
yang menolak permohonan mereka untuk writ habeas corpus. Enam perayu
ini diperintahkan untuk ditahan bawah s. 19A(1) Akta Pencegahan Jenayah
1959 (‘POCA’) oleh Pengerusi/Wakil Pengerusi Lembaga Pencegahan
Jenayah (‘Lembaga’) selama dua tahun. Berdasarkan perintah itu, perayu-
perayu masing-masing harus ditahan di Pusat Pemulihan Khas (‘PPK’). E
Rayuan-rayuan ini menimbulkan persoalan undang-undang hak asasi
walaupun kontroversial tentang keperlembagaan klausa penyingkiran dalam
perundangan yang berurusan secara khusus dengan penahanan pencegahan
yang dibuat berdasarkan per. 149 Perlembagaan Persekutuan (‘PP’). Perayu-
perayu, iaitu tahanan bawah POCA, mencabar keperlembagaan s. 15B POCA F
iaitu klausa penyingkiran yang menetapkan bahawa mahkamah dilarang
menyemak semula dan meneliti keputusan Lembaga. Perayu pertama hingga
kelima hanya membangkitkan satu isu di mahkamah ini, iaitu, sama ada
s. 15B POCA yang bermaksud untuk membatasi pelaksanaan kuasa
kehakiman adalah ultra vires per. 121(1) PP. Perayu keenam membangkitkan G
isu tambahan iaitu sama ada s. 7B POCA telah dipatuhi oleh Lembaga.
Bersamaan dengan isu-isu yang dibangkitkan di atas, empat perkara berikut
dikemukakan oleh perayu-perayu dalam proses hujahan, iaitu (i) s. 15B
POCA yang digubal bawah per. 149 yang menyingkirkan bidang kuasa
mahkamah untuk melakukan semakan kehakiman adalah tidak
H
berperlembagaan berdasarkan per. 4(1) PP; (ii) klausa penyingkiran dalam
s. 15B POCA adalah percubaan Parlimen untuk menindas kuasa
perlembagaan yang diberikan kepada mahkamah seperti yang diperuntukkan
bawah per. 121(1) PP; (iii) s. 15B POCA melanggar kuasa kehakiman
sehingga melanggar doktrin pemisahan kuasa antara tiga cabang, iaitu Badan
Eksekutif, Badan Perundangan dan Badan Kehakiman; dan (iv) s. 15B POCA I
yang menuntut untuk menyingkir mahkamah daripada melaksanakan hak-
haknya bawah per. 4(1) PP melanggar artikel itu dan sejauh itu melanggar
‘struktur dasar’ PP. Kedua-dua peguam yang bertindak sebagai amicus curiae

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A menyokong pendirian perayu-perayu tentang isu perlembagaan s. 15B

POCA. Walau bagaimanapun, responden menegaskan bahawa s. 15B POCA
adalah berperlembagaan dan bahawa rayuan perayu-perayu adalah tanpa
merit dan harus ditolak. Responden menyatakan bahawa POCA digubal dan
diubah mengikut per. 149 PP. Ini mengesahkan undang-undang yang
B diluluskan walaupun tidak konsisten dengan per. 5, 9, 10, atau 13 PP. Diakui
bahawa perundangan diundangkan berdasarkan per. 149 boleh
memperuntukkan pengurangan hak asasi atas dasar ketenteraman awam dan
keselamatan negara, yang mana s. 15B di bawah POCA adalah salah satu
daripadanya. Menurut responden-responden, undang-undang pencegahan
C
seperti POCA adalah undang-undang adjektif dan tidak menimbulkan
kesalahan substantif. Walaupun hak untuk hidup bawah per. 5 tidak
termasuk kedua-dua undang-undang adjektif dan substantif, namun,
ketentuan kebebasan asasi dalam PP tidak tanpa batasan tetapi dinyatakan
sebagai ‘kecuali mengikut undang-undang’. Responden-responden berhujah
bahawa niat Parlimen untuk memperkenalkan POCA juga harus berdasarkan
D
kata-kata peruntukan klausa penyingkiran. Seksyen 15(B) POCA adalah jelas
dan nyata dalam mengecualikan semakan kehakiman oleh mahkamah
mengenai keputusan Ketua atau Wakil Ketua bawah undang-undang kecuali
dan dengan alasan ketidakpatuhan prosedur, oleh itu tidak ada kekaburan
tentang niat Parlimen bahawa peruntukan tersebut adalah muktamad dalam
E pengecualian semakan kehakiman. Oleh itu, s. 15B POCA adalah
berperlembagaan. Bagi perayu keenam, responden mengemukakan bahawa
dia gagal mengemukakan pelanggaran terhadap apa-apa syarat prosedur.
Diputuskan (menolak rayuan-rayuan)
Oleh Zabariah Mohd Yusof HMP (keputusan majoriti):
F
(1) POCA adalah undang-undang pasca-Merdeka, oleh itu tentangan
terhadap kesahihan peruntukannya ditadbir oleh per. 4 PP. Perkara
4(1) menetapkan bahawa undang-undang yang diluluskan selepas
Merdeka yang tidak sesuai dengan PP akan dibatalkan. Perkataan
G
‘undang-undang’ dalam per. 4 hanya bermaksud undang-undang biasa
yang digubal oleh Parlimen dan tidak termasuk undang-undang untuk
meminda Perlembagaan yang disusun berdasarkan per. 159. Hanya
yang pertama mesti akur dengan PP. Yang terakhir ini tidak perlu, dan
untuk mentafsirkan sebaliknya, akan menimbulkan kemustahilan di
mana tidak ada perubahan yang dapat dilakukan kepada PP. Oleh itu,
H
Parlimen boleh meminda Perlembagaan dengan cara yang difikirkan
sesuai, dengan syarat mereka mematuhi semua syarat yang terdahulu
dan seterusnya, tentang cara dan bentuk yang ditentukan oleh PP.
Dengan itu, perubahan perundangan adalah sah walaupun tidak
konsisten dengan PP dengan syarat terdapat kepatuhan dengan
I prosedur yang dinyatakan dalam per. 159. Perayu berpendapat
bahawa s. 15B POCA yang digubal berdasarkan per. 149, yang
menyingkirkan bidang kuasa mahkamah untuk melakukan semakan
kehakiman, adalah tidak berperlembagaan berdasarkan per. 4(1) PP.

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20 Current Law Journal [2021] 4 CLJ

Ini tidak mungkin kerana per. 4(1) PP akan berkuat kuasa sekiranya A
s. 15B(1) POCA tidak konsisten dengan apa-apa peruntukan
perlembagaan yang memberikannya keabsahan dan kuat kuasa
undang-undang. Oleh kerana per. 149 adalah peruntukan yang
memberikan kuat kuasa undang-undang dan kesahihan kepada s. 15B,
tidak dapat dikatakan bahawa seksyen tersebut tidak berperlembagaan. B
Perkara 4(1) tidak dapat digunakan untuk membatalkan undang-
undang yang tidak sesuai dengan dirinya sendiri kerana perkara
tersebut tidak berkuat kuasa dengan sendirinya. Ini mesti dibaca
bersama dengan perkara-perkara PP lain yang berkaitan.
(2) Tujuan dan dasar POCA adalah untuk menangani peningkatan indeks C
jenayah yang membimbangkan, terutama dalam jenayah terancang
atau jenayah oleh kumpulan orang besar yang memberi kesan buruk
kepada ekonomi negara. Itu adalah keadaan sekeliling yang dibawa
kepada perhatian mahkamah dan perundangan itu didasarkan dan itu
adalah fakta-fakta yang dapat difahami pada saat perundangan. Ini D
adalah alasan yang munasabah dan perayu tidak menunjukkan
bagaimana POCA atau pelaksanaan kuasa di bawahnya, adalah
sewenang-wenangnya dan tidak disokong. Di samping itu, ketika
memutuskan isu-isu perlembagaan, konteks di mana timbulnya isu-isu
tersebut mungkin menjadikannya sesuai untuk mahkamah E
memberikan penekanan khusus terhadap pandangan-pandangan dan
dasar-dasar yang diterima pakai oleh Badan Perundangan. Mungkin
ada keputusan yang bertentangan yang harus dibuat oleh Badan
Eksekutif dan Badan Perundangan antara hak individu dan tuntutan
masyarakat. Mungkin ada bidang penghakiman di mana mahkamah
F
akan menangguhkan secara demokratik, kepada pandangan badan
terpilih atau orang-orang yang keputusannya dikatakan serasi dengan
keperluan masyarakat. Oleh itu, keseimbangan mesti dicapai antara
keperluan individu dan masyarakat. Rasional anggapan perlembagaan
itu adalah kerana Parlimen berada dalam situasi yang lebih baik untuk
memutuskan perkara-perkara dasar sosial dan bukannya mahkamah. G
Parlimen mewakili kehendak majoriti yang dipilih secara demokratik,
oleh itu keputusan mereka harus diterima sebagai sah. Mahkamah,
yang tidak terpilih dari kehendak orang awam, tidak dapat
menentukan perkara-perkara dasar, ditugaskan untuk menyelesaikan
pertikaian bebas dari pengaruh media, pendapat umum atau tekanan H
dari mana-mana kelompok dalam analisis dan pemakaian peraturan
dan prinsip undang-undang dan tafsiran teks undang-undang.
(3) Perlembagaan Persekutuan memberi kuasa kepada Parlimen untuk
membuat perundangan berkenaan dengan ‘penahanan pencegahan’.
Seperti yang dimaksudkan dengan istilah, ‘penahanan pencegahan’ I
adalah penahanan seseorang dengan tujuan untuk mencegah orang

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 21

A tersebut dari bertindak dengan cara yang memudaratkan ketenteraman

awam, adalah perlu bahawa orang itu harus ditahan, atau bahawa perlu
untuk penindasan keganasan atau pencegahan jenayah yang melibatkan
keganasan sehingga orang itu harus ditahan. Tidak seperti undang-
undang penahanan apabila disabitkan atas kesalahan jenayah atau
B penahanan semasa penyiasatan sesuatu jenayah, undang-undang
penahanan pencegahan diklasifikasikan terpisah sama sekali dari
undang-undang jenayah biasa. Seperti kata ‘pencegahan’ yang
diberikan untuk menunjukkan bahawa penahanan adalah untuk
mengelakkan dan mencegah pelanggaran undang-undang. Ini
C
bertentangan dengan penahanan biasa yang ‘reaktif’, iaitu setelah
melakukan kesalahan, atau dikenali sebagai undang-undang hukuman.
Ciri khas undang-undang penahanan pencegahan membenarkannya
diperlakukan secara berasingan daripada penahanan jenayah biasa.
(4) POCA, yang berkaitan dengan penahanan pencegahan, dan digubal
D menurut per. 149 PP, harus diperlakukan secara berasingan dari
undang-undang jenayah penahanan umum yang diundangkan bawah
per. 74 PP. POCA adalah undang-undang Persekutuan, yang
memperuntukkan bahawa mana-mana peruntukan dalam mana-mana
Akta Parlimen yang bacaannya sama, adalah sah walaupun peruntukan
E
tersebut tidak konsisten dengan per. 5, 9, 10 atau 13 PP. Dalam
permohonan rayuan ini, dalam konteks POCA, Parlimen boleh
menyekat hak asasi atas dasar ketenteraman awam dan keselamatan
nasional yang berdasarkan per. 149(1)(a) dan (f) PP. Seperti
mukadimah POCA menyatakan bahawa undang-undang ini digubal
berdasarkan per. 149 Perlembagaan, ini mengesahkan undang-undang
F
yang diluluskan walaupun tidak konsisten dengan peruntukan per. 5,
9, 10, dan 13 PP. Yang menjadi perhatian adalah peruntukan
kebebasan asasi per. 5 dan 9. Namun kebebasan asasi walaupun
termaktub di bawah PP, tidak mutlak dan dapat dilenyapkan dengan
kelulusan undang-undang oleh Badan Perundangan berdasarkan
G per. 149. Undang-undang yang digubalkan secara sah dalam konteks
kita sekarang adalah s. 15B(1) POCA yang melarang semakan
kehakiman terhadap keputusan Lembaga kecuali pada ketidakpatuhan
prosedur. Terdapat persamaan dalam mukadimah POCA dan objektif
yang diinginkan seperti yang dinyatakan dalam per. 149(1), khususnya
H item (a), iaitu ‘tindakan telah diambil atau diancam oleh mana-mana
kumpulan besar orang, sama ada di dalam atau di luar Persekutuan,
menyebabkan sebilangan besar warganegara takut, akan keganasan
terancang terhadap orang atau harta.’ Ini adalah syarat tambahan yang
secara tegas diperuntukkan oleh PP, yang harus dipenuhi sebelum
I undang-undang yang membatasi hak seseorang, dapat digubalkan.
Oleh itu, POCA memenuhi syarat ini dan ini adalah undang-undang
khas, rejim perundangan yang sama sekali berbeza berkaitan

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22 Current Law Journal [2021] 4 CLJ

penahanan pencegahan yang digubalkan menurut per. 149 dari PP. A

Skim perundangan s. 15B POCA adalah untuk mengehadkan kuasa
semakan kehakiman Mahkamah Tinggi kepada ketidakpatuhan
prosedur oleh pembuat keputusan.
(5) Tiada satu peruntukan dalam PP yang boleh dikatakan lebih unggul
B
daripada peruntukan lain. Perkara 4(1) memperuntukkan ketentuan
deklarasi PP sebagai undang-undang tertinggi Persekutuan dan setiap
undang-undang yang disahkan selepas Merdeka yang tidak konsisten
dengan PP adalah terbatal. Ini memperuntukkan cabaran kecekapan
dan kesahan perundangan serta cara mencabarnya. Untuk memenuhi
syarat atau menggantungkan pemakaian per. 4 dalam per. 149 akan C
bertentangan dengan objektif dan tujuan per. 4, iaitu, pengisytiharan
ketuanan perlembagaan PP. Artikel 4 tidak dapat digantung oleh
artikel PP lain. Artikel 4 tidak seperti peruntukan-peruntukan per. 5,
9, 10 atau 13 yang berkaitan dengan hak asasi, yang boleh, dan
digantungkan oleh per. 149. Oleh itu, per. 149 sejajar dengan D
peruntukan lain dalam PP. Perkara 149 adalah kuasa yang diberikan
kepada Parlimen untuk menggubal undang-undang yang memenuhi
keperluan-keperluan sebagaimana dinyatakan dalam perenggan (1)(a)-
(f). Perkara 4(1) tidak berkuat kuasa sebagaimana yang disarankan oleh
perayu-perayu. E
(6) Dari skema POCA, ini adalah undang-undang khas di mana tujuan
atau objek yang mendasarinya menanggung kepentingan dalam
pentafsiran undang-undang pencegahan yang diumumkan bawah
per. 149. Perkara 149 menegaskan keabsahan undang-undang yang
digubalkan terhadap subversi, tindakan yang memudaratkan F
ketenteraman masyarakat dan seumpamanya. Berdasarkan
peruntukan-peruntukan PP dan POCA, para pembuat keputusan
dalam hal penahanan pencegahan secara substansial atau fakta, adalah
eksekutif. Seksyen-seksyen 15B dan 21A POCA dibuat dengan
per. 151(3) PP dalam fikiran. Seksyen-seksyen 15B dan 21A POCA G
digubal untuk memberi kesan kepada tujuan dan objektif POCA,
per. 149 dan 151(3) PP. Oleh itu, ss. 15B dan 21A POCA datangnya
dari per. 149 PP dan disokong oleh per. 151(3) yang sama, bagaimana
boleh s. 15B POCA tidak berperlembagaan? Seksyen 15B POCA
digubal untuk memperkuatkan penekanan pada kepentingan nasional
H
bawah per. 151(3) PP. Dari skema per. 151(3) PP, dan s. 21A POCA,
pihak berkuasa tidak akan mendedahkan fakta yang bertentangan
dengan kepentingan negara. Pihak berkuasa yang memutuskan apa
yang menjadi kepentingan umum adalah Badan Eksekutif yang
mempunyai kepakaran. Oleh itu, dalam menangani rayuan-rayuan ini,
mahkamah harus dipandu oleh kata-kata yang jelas dari PP dan POCA, I
dalam kes ini per. 149, per. 151(3), s. 15B dan s. 21A POCA. Adalah
di wilayah Badan Perundangan yang sesuai dengan kekuasaan yang

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 23

A diberikan kepadanya bawah per. 149 PP untuk menggubalkan

peruntukan yang dipertikaikan untuk mengatasi kerosakan
keselamatan negara. Hal ini juga berada dalam bidang kuasa Badan
Perundangan untuk menggubal peruntukan yang dipertikaikan yang
memperuntukkan semakan kehakiman yang terbatas. Oleh itu, dapat
B dilihat kedudukan yang diberikan kepada undang-undang yang
diundangkan bawah per. 149 dalam hal itu, undang-undang yang
digubal bawah perkara tersebut adalah berperlembagaan walaupun
tidak konsisten dengan perkara-perkara PP tertentu.
(7) Undang-undang yang dipertikaikan itu adalah berperlembagaan kerana
C per. 149 (dibaca dengan per. 151(3)) mengesahkannya. Tugas
mahkamah, seperti yang diperuntukkan dalam per. 121(1), adalah
untuk memberi kesan sepenuhnya pada apa yang diperuntukkan oleh
undang-undang Persekutuan, dalam hal ini, s. 15B POCA yang
membenarkan semakan kehakiman terbatas. Oleh itu, berdasarkan
D hal tersebut, tidak dapat dikatakan bahawa dengan mengehadkan kuasa
mahkamah dalam s. 15B POCA, Badan Perundangan/Parlimen telah
melanggar bidang kuasa mahkamah. Badan Perundangan/Parlimen
yang memberikan mahkamah bidang kuasa dan kuasa. Dengan
demikian, tidak ada rampasan kuasa kehakiman oleh Badan
E
Perundangan. Mahkamah menggunakan kuasanya seperti yang
diperuntukkan oleh POCA, undang-undang Persekutuan, iaitu apa
yang diperuntukkan oleh per. 121(1) PP. Seksyen 15B yang
mengehadkan tinjauan semakan kehakiman oleh mahkamah hanya atas
ketidakpatuhan prosedur oleh itu bukanlah tidak berperlembagaan
berdasarkan per. 4(1) PP. (paras 98-101)
F
(8) Fungsi mahkamah sebagai mahkamah undang-undang adalah untuk
memutuskan kes-kes yang ada di hadapannya mengikut undang-
undang Persekutuan yang dikuatkuasakan pada waktu material. Dalam
hal ini, per. 121(1) PP jelas, di mana ditetapkan bahawa mahkamah
G
ditubuhkan oleh undang-undang (termasuk PP) dan bidang kuasa
mahkamah dan sumber kuasa diperolehi dari undang-undang
Persekutuan. ‘Undang-undang Persekutuan’ ditakrifkan oleh
per. 160(2) bermaksud apa-apa Akta Parlimen. Mahkamah vis-a-vis
hakim tidak memperoleh kuasa mereka dalam vakum dan mereka juga
tidak dapat mewujudkan bidang kuasa untuk diri mereka sendiri. Ini
H
adalah untuk Parlimen memutuskan dengan meluluskan undang-
undang Persekutuan apabila per. 121(1) menyatakan bahawa ‘... dan
Mahkamah Tinggi dan mahkamah rendah mempunyai bidang kuasa
dan kuasa sebagaimana yang diberikan oleh atau di bawah undang-
undang Persekutuan’. Parlimen mempunyai kuasa perundangan untuk
I menggubal undang-undang Persekutuan berkaitan dengan penahanan
pencegahan bawah per. 149. Seksyen 15B POCA adalah undang-

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24 Current Law Journal [2021] 4 CLJ

undang Persekutuan, dan di situlah mahkamah memperoleh kuasa A

dalam semakan kehakiman di bawah POCA. Ini dibuat berdasarkan
per. 121(1). Tugas mahkamah adalah untuk mentafsirkan apa yang
diperuntukkan dalam s. 15B POCA. Oleh itu, adalah salah untuk
menyatakan bahawa s. 15B adalah percubaan Parlimen untuk
menindas kuasa perlembagaan yang diberikan kepada mahkamah B
seperti yang diperuntukkan dalam per. 121(1). Penggunaan kuasa
kehakiman tidak akan bermula sehingga dan melainkan jika
mahkamah dipanggil untuk melakukannya. Oleh itu, substratum
undang-undang mesti wujud sebelum kuasa kehakiman terbentuk.
Kekuasaan itu wujud kerana Parlimen menggubalkannya sedemikian. C
(9) Pemisahan kuasa terdapat dalam sistem dan sangat hidup. Sekiranya
setiap cabang sedar dan memahami peranan masing-masing dalam
melaksanakan peranan mereka dengan penuh tanggungjawab, tidak
perlu ada rasa takut akan penyalahgunaan kuasa atau pelanggaran hak
warganegara. Sebagaimana fungsi Badan Kehakiman untuk D
mentafsirkan undang-undang, fungsi perundangan juga berfungsi
sebagai undang-undang untuk meluluskan undang-undang, asalkan
mematuhi cara yang ditetapkan dalam per. 159 PP. Oleh itu, ujian
perlembagaan yang akan dirangkakan oleh mahkamah dalam
memutuskan sama ada peruntukan yang dipertikaikan itu bersifat E
perlembagaan atau tidak dan dalam menentukan ‘sejauh mana doktrin
(pemisahan kuasa) diguna pakai bergantung pada peruntukan
Perlembagaan ... [Tiada] peruntukan undang-undang boleh dianggap
tidak berperlembagaan jika tidak konsisten dengan PP, walaupun
mungkin tidak konsisten dengan doktrin’. Dengan mengehadkan
F
semakan kehakiman kepada ketidakpatuhan prosedur berdasarkan
s. 15B POCA, Parlimen tidak melanggar kuasa kehakiman mahkamah
kerana berada dalam kuasa mereka untuk melakukannya. Mahkamah
dalam melaksanakan kuasa tersebut bertindak mengikut apa yang
ditetapkan dan dihadkan oleh POCA, undang-undang Persekutuan.
Dengan itu, s. 15B bukan tidak konsisten dengan per. 121(1) PP. Oleh G
itu, klausa penyingkiran seperti dalam s. 15B POCA tidak menindas
kuasa perlembagaan yang diberikan kepada mahkamah seperti yang
diperuntukkan dalam per. 121(1) PP. Juga tidak mencerobohi kuasa
kehakiman sehingga melanggar doktrin pemisahan kekuasaan antara
tiga cabang, iaitu Badan Eksekutif, Badan Perundangan dan Badan H
Kehakiman. Dalam keadaan apa pun, tidak dapat dikatakan bahawa s.
15B POCA tidak berperlembagaan kerana melanggar doktrin
pemisahan kuasa.
(10) Semakan kehakiman terhadap keputusan tribunal-tribunal yang
melaksanakan fungsi serupa dengan Lembaga tidak boleh dipersoalkan I
kecuali atas ketidakpatuhan prosedur. Budi bicara sedemikian dalam
menentukan perkara substantif/polisi oleh Lembaga berada di luar
jangkauan mahkamah. Tuduhan fakta di mana perintah penahanan

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 25

A telah didasarkan pada aktiviti yang didakwa oleh orang dalam tahanan
dan kepuasan Badan Eksekutif bersikap subjektif tidak terbuka untuk
mahkamah memeriksa mengenai kecukupan dakwaan-dakwaan
tersebut. Tuduhan fakta berkaitan dengan perkara-perkara dalam
lingkungan dasar nasional yang berkaitan dengan keamanan negara di
B mana kepuasan subjektif Badan Eksekutif terhadap tuduhan tersebut
tidak dapat diganti dengan ujian objektif di mahkamah undang-undang.
(11) Parlimen telah menggunakan kata-kata yang jelas dalam s. 15B(1)
POCA dan peruntukan telah digubal dengan tepat, bahawa tidak akan
ada semakan kehakiman oleh mahkamah atas setiap tindakan atau
C keputusan oleh Lembaga dalam pelaksanaan kuasa budi bicaranya
mengikut Akta kecuali untuk ketidakpatuhan apa-apa keperluan
prosedur. Semakan kehakiman bawah seksyen ini ditakrifkan untuk
merangkumi prosiding yang dimulakan melalui suatu writ habeas
corpus. Atas kejelasan dalam kata-kata seksyen tersebut, tidak ada
D keraguan tentang niat Badan Perundangan bahawa seksyen tersebut
adalah konklusif tentang pengecualian semakan kehakiman dalam kes
habeas corpus di bawah Akta. Kesan klausa penyingkiran seperti itu
dalam s. 15B(1) POCA telah mengecualikan semakan kehakiman
tindakan Lembaga kecuali terdapatnya ketidakpatuhan prosedur.
E
Mahkamah tidak boleh campur tangan dan mengganggu keputusan
yang tidak dapat disemak secara undang-undang, setelah Parlimen
mengecualikan semakan kehakiman. Hasrat Parlimen atau Badan
Eksekutif dinyatakan dalam Akta Parlimen oleh bahasa yang
digunakan dan mahkamah harus melaksanakan niat ini. Bukan fungsi
hakim untuk membaca sesuatu ke dalam peruntukan yang tidak wujud.
F
Sekiranya beliau melakukannya, beliau memang melanggar fungsi
Badan Perundangan. Perkataan dalam s. 15B POCA jelas dan tidak
kabur. Memandangkan s. 15B digubalkan bawah per. 149 dan telah
dibuat dengan presisi dan kejelasan yang sempurna, bukan tugas
mahkamah untuk memberikan makna yang berbeza dari apa
G dimaksudkan oleh Badan Perundangan.
(12) Oleh kerana konsep struktur asas tidak jelas dan tidak terbatas, akan
mengakibatkan ini terbuka bagi setiap hakim untuk mengemukakan
apa yang masing-masing mereka andaikan sebagai ‘struktur asas’ PP,
yang membawa kepada ‘ketidakpastian’ dalam pentafsiran PP dan
H
undang-undang. Tiada panduan pasti tentang apa dan bagaimana
penentuan struktur asas atau apakah ujian panduan yang terpakai. Inti
konsep struktur dasar adalah bahawa, peruntukan-peruntukan
perlembagaan yang secara tersirat dianggap sebagai struktur dasar,
tidak dikenakan pindaan, secara kekal. Dalam hal pentafsiran, antara
I konsep tersirat dan penyediaan teks yang nyata, penyediaan teks yang
nyata harus diutamakan dalam prinsip-prinsip pentafsiran. Untuk
berpegang pada pandangan bahawa apa yang merupakan struktur dasar
dalam PP tidak dapat diubah, akan bertentangan dengan peruntukan

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26 Current Law Journal [2021] 4 CLJ

jelas per. 159 PP yang membenarkan pindaan mengikut keperluan A

prasyarat yang mandatori. Meletakkan batasan tersirat pada kuasa
Parlimen seperti yang dinyatakan oleh konsep struktur dasar, jelas
bertentangan dengan peruntukan PP mengikut per. 4(1), yang
menyatakan bahawa PP adalah tertinggi dan hanya Parlimen yang
mempunyai kuasa untuk membuat pindaan perlembagaan walaupun B
tidak konsisten dengan PP. Parlimen boleh meminda PP, sebagaimana
yang difikirkannya sesuai, asalkan mereka memenuhi syarat yang
diperlukan sebelumnya dan seterusnya mengenai cara dan bentuk yang
ditentukan oleh PP seperti yang dinyatakan dalam per. 159.
(13) Penentuan perlembagaan peruntukan yang dipertikaikan harus C
berdasarkan pada apa yang diperuntukkan dalam PP. Ini tidak dapat
didasarkan pada beberapa konsep struktur dasar asing yang amorf di
mana ketidakpastian akan terjadi dalam pemakaian undang-undang
kita. Oleh itu, doktrin struktur asas tidak dapat digunakan dalam
mentafsirkan perlembagaan s. 15B(1) POCA memandangkan per. 159 D
tidak dinyatakan dalam PP mengenai peruntukan dalam PP yang
membentuk struktur asas. Untuk mencabar perlembagaan s. 15B
POCA, ia harus diuji terhadap salah satu peruntukan PP, bukan
bertentangan dengan konsep struktur asas. Seksyen 15B POCA
memperoleh kuat kuasa undang-undang dan kesahihannya dari E
per. 149 PP. Tidak boleh dikatakan bahawa s. 15B POCA
menyingkirkan mahkamah daripada menggunakan kuasanya bawah
per. 4(1) atau per. 121(1) PP. Mahkamah dapat menggunakan kuasa
kehakiman penyeliaannya dalam kes-kes di mana terdapat
ketidakpatuhan keperluan prosedur. Bukan struktur asas bahawa pihak
F
yang terkilan berhak mendapat remedi sepenuhnya dalam mencabar
keputusan pihak berkuasa awam. Juga tidak boleh dikatakan bahawa
ini bertentangan dengan per. 4(1) dan sejauh itu bertentangan dengan
‘struktur asas’ PP.
(14) Seksyen 15B POCA bukanlah klausa penyingkiran yang lengkap tetapi G
hanya membatasi pelaksanaan semakan kehakiman kepada
ketidakpatuhan prosedur, oleh itu bukan ultra vires per. 121(1) FC.
Oleh itu, s. 15B POCA bukan tidak berperlembagaan dan adalah sah.
Oleh kerana rayuan kelima-lima perayu bergantung pada rayuan
mereka terhadap isu perlembagaan ini dari s. 15B(1) POCA, maka kes
H
mereka gagal. Bagi perayu keenam, yang rayuannya bergantung pada
isu perlembagaan dan isu ketidakpatuhan prosedur, dia gagal
membangkitkan ketidakpatuhan prosedur dalam pembuatan keputusan
oleh Lembaga.
Oleh Nallini Pathmanathan HMP (menentang): I
(1) Adalah penting untuk diingatkan bahawa kita mengamalkan ketuanan
perlembagaan di mana Perlembagaan Persekutuan (‘PP’) adalah
undang-undang tertinggi negara. Oleh itu undang-undang, walaupun

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 27

A pencegahan penahanan, perundangan harus mematuhi, atau berada

dalam lingkungan PP. Jika ada pelanggaran salah satu peruntukan PP,
undang-undang atau peruntukan statutori dalam undang-undang
tersebut tidak sah, seperti yang dinyatakan dalam per. 4(1) PP. Apa-
apa perundangan atau peruntukan statutori yang ditentang atas dasar
B perlembagaan seperti yang diperuntukkan di bawah per. 4(1) PP harus
diuji terhadap peruntukan-peruntukan PP yang lain untuk menjawab
isu kesahihan perlembagaan. Jawapan sama ada terdapat pelanggaran
peruntukan PP akan bergantung pada konstruksi statut terhadap PP.
(2) Perkara 4(1) FC menetapkan kemampuan Badan Kehakiman untuk
C melayani cabaran berkaitan apa-apa perundangan atau peruntukan
statutori yang digubal oleh Parlimen. Sama ada cabaran berjaya atau
sebaliknya adalah perkara yang berbeza. Badan Kehakiman haruslah
bersenjata untuk memastikan perlembagaan kerana fungsi tersebut
tidak termasuk dalam bidang kuasa dua cabang Kerajaan yang lain.
D Oleh itu, setiap atau semua perundangan (dan oleh itu peruntukan
statutori dalam perundangan) yang digubal oleh Parlimen dapat
dijadikan subjek perkara cabaran bawah per. 4(1) PP. Ini jelas
daripada bahagian kedua per. 4(1) PP yang memperuntukkan bahawa
undang-undang yang tidak konsisten dengan PP adalah tidak sah.
E
Tidak mustahil untuk memastikan sama ada undang-undang itu
konsisten atau tidak konsisten dengan PP, sehingga dan melainkan jika
ada cabaran mengenai perlembagaannya berdasarkan per. 4(1) PP.
Oleh itu, untuk menggubal undang-undang yang melarang pemakaian
per. 4(1) PP, akan mengalahkan objektif dan tujuan perkara itu.
Perkara 4(1) PP akan menjadi otiose. Dengan kata lain, mesti ada cara
F
untuk mencabar ‘undang-undang’ yang dimaksud, jika gagal, tujuan
dan kesan per. 4(1) PP menjadi tidak berguna.
(3) Peranan Badan Kehakiman dalam memastikan bahawa terdapat
pemeriksaan dan perseimbangan pada kedua-dua tindakan Badan
G
Perundangan dan Badan Eksekutif (iaitu kedaulatan undang-undang)
termaktub dalam per. 4(1) PP. Sejauh itu, per. 4(1) PP mengabadikan
tonggak asas kembar demokrasi perlembagaan, iaitu kedaulatan
undang-undang dan doktrin pemisahan kuasa. Ini adalah akar atau
sumber untuk pemberian kuasa kehakiman seperti yang dicontohi
dalam per. 121 PP. Ini mencerminkan skop dan bidang kuasa
H
kehakiman, seperti yang diakui secara jelas bahawa kehakiman yang
melaksanakan kuasa untuk memberikan pemeriksaan dan
keseimbangan atas tindakan dan peninggalan dua cabang Kerajaan
yang lain, iaitu Badan Perundangan dan Badan Eksekutif. Hak untuk
mencabar undang-undang adalah bahagian yang tidak terpisah dari PP.
I Apa-apa peruntukan undang-undang yang bertujuan untuk
menghalangi mahkamah melaksanakan hak mereka bawah per. 4(1)
PP melanggar perkara itu dan sejauh itu melanggar isi PP dan tidak
sah. Seksyen 15B POCA adalah klausa penyingkiran yang bertujuan

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28 Current Law Journal [2021] 4 CLJ

untuk melakukan perkara itu dengan tepat, iaitu menghalangi atau A

menyingkirkan bidang kuasa mahkamah untuk memeriksa keputusan
yang dibuat berkaitan dengan penahanan pencegahan oleh Lembaga
Siasatan. Ini menetapkan bahawa tiada mahkamah yang dapat
menggunakan kuasa semakan kehakimannya untuk berbuat demikian.
Itu, dengan sendirinya, adalah pelanggaran per. 4(1) PP yang B
membolehkan semua peruntukan undang-undang diperiksa untuk
kesahihan perlembagaan. Untuk memeriksa keabsahan perlembagaannya,
diikuti bahawa s. 15B POCA, yang menjadi komponen perundangan
yang digubal oleh Parlimen, dapat ditentang bawah per. 4(1) PP.
(4) Fakta bahawa perundangan ini diundangkan berdasarkan per. 149 PP C
tidak membuat perundangan itu sendiri, atau peruntukan-peruntukan
statutori di dalamnya, kebal dari cabaran atau pemeriksaan bawah
per. 4(1) PP. Tidak ada apa-apa dalam per. 149 PP yang melindungi
perundangan yang digubal di bawahnya dari cabaran perlembagaan di
bawah per. 4(1) PP. Sekiranya tidak demikian, berkemungkinan besar D
Parlimen akan menggubal perundangan yang melampau tanpa ada
jalan keluar untuk memeriksa atau mengkaji perundangan tersebut
untuk memastikan sama ada undang-undang tersebut mematuhi PP,
undang-undang tertinggi negara, di mana ketuanan perlembagaan
berkuasa. Ini tersirat dalam per. 149 PP itu sendiri, bahawa tidak ada E
penyingkiran kuasa kehakiman kerana per. 4(1) PP tidak dikecualikan.
Sebaliknya, ini menunjukkan bahawa pelanggaran per. 5, 9, 10 dan 13
PP tidak menjadikan perundangan yang dibuat mengikutnya, tidak
berperlembagaan. Mengembalikan kuasa mahkamah untuk
memastikan kesahihan perlembagaan peruntukan atau perundangan
F
statutori, adalah penting undang-undang yang digubal oleh Parlimen
tetap terbuka untuk pemeriksaan kehakiman untuk tujuan tersebut.
(5) Kewujudan per. 4(1) PP sama sekali tidak memberikan sistem
ketuanan kehakiman. Fakta bahawa mahkamah ditugaskan untuk
memastikan perlembagaan perundangan yang diluluskan oleh Badan G
Perundangan dan dilaksanakan oleh Badan Eksekutif, menepati
peraturan yang paling asas mengenai pemisahan kuasa dan dengan
demikian kedaulatan undang-undang. Oleh itu, sebarang percubaan
untuk menunjukkan bahawa Badan Kehakiman merebut kekuasaan
Badan Perundangan dan dengan itu hak-hak rakyat adalah satu salah
H
faham, kerana Badan Kehakiman hanya berfungsi untuk menunjukkan
dan mencegah tindakan yang tidak konsisten dengan PP. Oleh itu, PP
adalah yang tertinggi, dan Badan Kehakiman hanyalah cara untuk
memastikan bahawa peruntukan-peruntukan PP dilindungi. Pada
setiap masa, Badan Kehakiman seharusnya sedar akan peranannya
sebagai pemeriksa dan pengimbang dan tidak menceroboh selanjutnya. I
Mahkamah tidak patut dan tidak boleh mengacau perkara-perkara
keamanan, dasar dan lain-lain, yang tidak berada dalam ruang lingkup

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 29

A fungsinya. Badan Kehakiman sangat mengetahui batasannya ini,

kerana itu merangkumi komponen penting doktrin pemisahan kuasa.
Klausa penyingkiran seperti s. 15B POCA melanggar kuasa kehakiman
secara terang-terangan dan langsung, kerana melarang pemeriksaan
kehakiman kerana tidak konsisten dengan PP. Oleh yang demikian, ini
B menjejaskan doktrin pemisahan kuasa dan dengan demikian
kedaulatan undang-undang.
(6) Sesungguhnya jika kedudukan itu diambil, klausa-klausa penyingkiran
itu membuatkan perundangan seperti s. 15B POCA kebal daripada
pemeriksaan bawah per. 4(1) PP, yang memberi hak kepada Badan
C Perundangan dan Badan Eksekutif kuasa timbang tara yang besar dan
sewenang-wenangnya tanpa ganti rugi atau ruang kepada orang-orang
yang terjejas dan/atau terkilan dengan pelaksanaan undang-undang
tersebut atau pelaksanaan budi bicara dalam perundangan tersebut,
secara haram atau tanpa asas yang sah. Itu bertentangan dengan
D kedaulatan undang-undang yang merangkumi prinsip asas dan
demokrasi model Westminster kami dan yang menjadi nadi PP. Dengan
memakai doktrin stare decisis, mahkamah ini harus mematuhi prinsip
yang menetapkan bahawa per. 4(1) PP (sebagaimana dijelaskan di
Semenyih Jaya dan Indira Gandhi) adalah bersifat suci dan meletakkan
E
kewajipan nyata kepada mahkamah untuk tertakluk kepada undang-
undang atau tindakan Badan Eksekutif atau peninggalan yang timbul
dari itu untuk meneliti, apabila dicabar, untuk memastikan pematuhan
PP. Melakukan apa-apa yang kurang daripada itu akan menyebabkan
peninggalan hakim mematuhi sumpahnya untuk melindungi PP.
F (7) Penting bahawa perbezaan antara konsep kajian semula perlembagaan
tidak dikelirukan dengan kaedah yang sedia ada untuk semakan
kehakiman. Prinsip atau doktrin kajian semula kehakiman adalah
elemen penting dalam lingkungan PP. Ini adalah komponen per. 4(1)
yang tidak dapat dipisahkan kerana Badan Kehakiman tidak dapat
G
memenuhi fungsinya berdasarkan perkara itu kecuali jika semakan
kehakiman dilakukan. Jadi, menyamakan doktrin dengan remedinya,
adalah salah. Perlembagaan Persekutuan, sebagaimana berdirinya hari
ini, harus dibaca menurut peruntukan-peruntukannya yang secara
objektif ditafsirkan dalam konteks negara sebagai Raja
Berperlembagaan berdasarkan demokrasi berparlimen. Seperti PP
H
yang berdiri sekarang, ia tidak membayangkan undang-undang yang
tidak adil, sewenang-wenang, tidak masuk akal, menindas atau tidak
seimbang. Dengan demikian, mahkamah dan kuasa kehakiman
bertahan untuk memastikan bahawa sesuai dengan jaminan PP,
kandungan substantif dan prosedural undang-undang kita harus
I memastikan bahawa tidak ada pelanggaran had PP. Perkara 149,
sementara mengizinkan penangguhan hak asasi yang terdapat dalam
per. 5, 9, 10 dan 13, harus tetap mematuhi per. 4, 8, 121 dan 151 PP.

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30 Current Law Journal [2021] 4 CLJ

(8) Perkara 121(1) PP mesti ditafsirkan secara harmoni dengan per. 4(1) A
PP. Kedua-dua peruntukan tersebut tidak boleh ditafsirkan sehingga
menimbulkan perbezaan yang ketara dan asas yang berkaitan dengan
bidang kuasa dan kuasa kehakiman. Anomali yang muncul jika
berlakunya pembacaan literal pada kata-kata nyata dari kedua-dua
perkara ini dipertimbangkan adalah ini. Perkara 4(1) PP mengizinkan B
Badan Kehakiman untuk melanggar undang-undang iaitu undang-
undang Persekutuan yang tidak konsisten dengan PP. Walau
bagaimanapun, per. 121(1) PP, berdasarkan bacaan harfiah,
menunjukkan bahawa kuasa kehakiman dihadkan oleh dan/atau di
bawah undang-undang Persekutuan. Proposisi yang terakhir ini C
bermaksud bahawa kuasa kehakiman ditubuhkan dan digambarkan
oleh undang-undang Persekutuan sebagaimana yang digubal oleh
Parlimen. Ini membawa kesan (i) membatalkan kuasa kehakiman
sedia ada termasuk kuasa untuk meneliti undang-undang untuk
kesahihan perlembagaan; (ii) mengabaikan sepenuhnya kesan per. 4(1)
D
PP; (iii) secara efektif mengenakan sistem perlembagaan ketuanan
Parlimen berbanding ketuanan perlembagaan. Konstruksi seperti itu
sama sekali tidak dapat dipertahankan. Konstruksi kekuatan
kehakiman yang harmoni seperti yang terkandung dalam kedua-dua
perkara ini akan memastikan doktrin pemisahan kekuasaan dan
kedaulatan undang-undang tetap menjadi ciri-ciri asas kuasa E
kehakiman. Oleh itu, dalam mentafsirkan per. 121 PP dalam
kaitannya dengan frasa ‘... harus mempunyai bidang kuasa dan kuasa
yang diberikan oleh atau di bawah undang-undang Persekutuan’ satu-
satunya maksud harmoni yang dapat diberikan kepada kata-kata itu
adalah bahawa spesifikasi, penerangan dan susunan kuasa mahkamah F
akan digubal oleh Parlimen. Walau bagaimanapun, apa-apa
keterangan atau penyenaraian atau penetapan kuasa berbagai
mahkamah dalam hierarki Badan Kehakiman Kerajaan oleh Parlimen,
tidak dapat dengan cara apa pun menolak kuasa mahkamah untuk
bertindak sebagai pemeriksa dan pengimbang vis-a-vis Badan Eksekutif G
dan Badan Perundangan, seperti yang termaktub dalam per. 4(1) PP.
(9) Dan ‘undang-undang’ atau ‘undang-undang Persekutuan’ seperti yang
dinyatakan dalam per. 121 PP mesti mempunyai maksud yang sama
dengan ‘undang-undang’ dalam per. 4(1) PP. Sekiranya tidak
demikian, dan kata ‘undang-undang’ dalam kedua perkara membawa H
maksud yang berbeza, akan ada kekeliruan dan PP akan menjadi tidak
normal, tidak boleh diramalkan dan tidak boleh dipercayai.
Konstruksi seperti itu tidak kukuh. Dan ‘undang-undang’ dalam
per. 4(1) PP mesti merujuk kepada ‘undang-undang’ yang sah di bawah
PP. Ia mengikuti ‘undang-undang’ di bawah per. 121 PP juga mestilah I
undang-undang yang sah di bawah FC. Ini pada gilirannya bermaksud
bahawa mana-mana ‘undang-undang Persekutuan’ seperti yang
dinyatakan dalam per. 121 PP dapat dicabar secara berperlembagaan

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 31

A untuk memastikan bahawa undang-undang tersebut sah dari segi

perlembagaan bawah per. 4(1) PP. Dan hanya mahkamah yang dapat
memastikan isu ini. Oleh itu, mahkamah hanya akan menguatkuasakan,
mengenali dan memberi kesan kepada undang-undang yang sah dari
segi perlembagaan. Parlimen tidak dapat menggubal apa-apa undang-
B undang dan mengharapkan mahkamah menggunakan kuasa kehakiman
mereka menurut undang-undang tersebut, tidak peduli isi dan tidak
peduli sama ada bersesuaian dengan PP atau tidak. Oleh itu,
mahkamah hanya bertindak mengikut undang-undang Persekutuan
yang sah dari segi perlembagaan, di mana peranan untuk memastikan
C
kesahan perlembagaan jatuh pada mereka. Sekali lagi, per. 121 PP
tidak dapat ditafsirkan bermaksud bahawa Badan Kehakiman terikat
untuk bertindak konsisten dengan undang-undang Persekutuan yang
digubal. Dilihat secara objektif, dengan memperhatikan per. 4(1) PP,
kuasa kehakiman kekal utuh.
D (10) Berdasarkan konstruksi bahawa kuasa kehakiman di bawah PP tetap
dan selalu utuh, s. 15B POCA tidak mungkin memberi kesan
melepaskan mahkamah dari kuasa mereka untuk meneliti
perundangan dan Akta-Akta yang mengikuti perundangan tersebut
untuk memastikan bahawa ia bersifat berperlembagaan. Walau
E
bagaimanapun, skop dan ruang lingkup per. 4(1) berhubung dengan
s. 15B POCA adalah terhad. Kesan s. 15B POCA diisytiharkan sebagai
tidak berperlembagaan, akan membenarkan mahkamah meneliti
keputusan yang bersangkutan secara adil, dengan mengguna pakai
kuasa sepenuhnya semakan kehakiman yang tersedia pada mahkamah
undang-undang yang menjalankan fungsi pengawasannya. Bukanlah
F
bermakna secara automatik tindakan atau keputusan Lembaga tidak
sah atau terbatal. Tetapi dengan klausa penyingkiran, kami tidak
berurusan dengan perlembagaan atau sebaliknya perundangan
mengenai kelebihan substantifnya. Kami berurusan dengan hak untuk
mencabar perlembagaan perundangan. Sekiranya klausa penyingkiran
G dibiarkan berlaku maka hak cabaran dalam per. 4(1) PP akan terhakis.
Sejauh itu, per. 4(1) PP adalah sumber utama PP dan mencerminkan
hakikat demokrasi kerana merangkumi hak asasi rakyat negara ini
untuk dilindungi daripada tindakan atau peninggalan undang-undang
dan Badan Eksekutif yang sewenang-wenang, tidak sah atau salah.
H
(11) Fakta bahawa per. 4(1) PP tidak menjelaskan bagaimana cabaran
tersebut dibawa ke mahkamah, sama sekali tidak mengurangkan hak
undang-undang warganegara untuk melakukannya. Cara untuk
mencabar perlembagaan perundangan (atau peruntukan undang-
undang dalam perundangan tersebut) ditetapkan dalam Akta
I Mahkamah Kehakiman 1964 (‘AMK’) yang memberikan remedi
adjektif untuk memberi kesan kepada per. 4(1) PP. Seksyen 25 AMK
memperuntukkan kuasa tambahan Mahkamah Tinggi yang
merangkumi hak untuk mengeluarkan perintah hak prerogatif seperti

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32 Current Law Journal [2021] 4 CLJ

certiorari atau semakan kehakiman, mandamus, habeas corpus dan A

prosiding lain yang mungkin diperlukan untuk memberi kesan kepada
hak untuk mencabar kesahihan perundangan. Remedi-remedi common
law diberikan kesan dengan kemasukan AMK. Habeas corpus adalah
kaedah semakan kehakiman yang lain. Selain itu, s. 363 Kanun
Tatacara Jenayah juga memberikan asas adjektif untuk membawa B
permohonan habeas corpus. Oleh itu, writ prerogatif seperti semakan
kehakiman atau habeas corpus merangkumi mod atau wahananya di
mana per. 4(1) PP dihidupkan atau diberi kesan. Sekiranya kaedah
prosedural atau mod adjektif ini yang mencabar perlembagaan
perundangan tidak dibenarkan, maka per. 4(1) PP akan dianggap tidak C
guna atau tidak berkesan. Writ prerogatif seperti semakan kehakiman
merangkumi nadi/alat pacu jantung per. 4(1) PP. Memandangkan
per. 4(1) PP dan peruntukan-peruntukan adjektif yang membenarkan
pelaksanaannya, perundangan atau peruntukan undang-undang, seperti
s. 15B POCA yang bermaksud untuk menghalang atau menyingkirkan
D
semakan kehakiman atau bidang kuasa mahkamah, adalah tidak sah.
(12) Adalah terbuka untuk mahkamah di bidang kuasa ini untuk tidak
hanya memeriksa pelaksanaan budi bicara Badan Eksekutif tetapi juga
memeriksa dan mengisytiharkan tidak sah, jika perlu, perundangan
atau peruntukan undang-undang yang bertujuan untuk menyekat hak E
tersebut dengan cara yang tidak konsisten dengan PP. Akhirnya, tujuan
per. 4(1) PP adalah untuk memastikan bahawa baik secara prosedur
mahupun substansial, perundangan yang mendasari dan peruntukan
undang-undang yang relevan digubalkan secara berperlembagaan, dan
kedua sama ada pelaksanaan budi bicara Menteri dilaksanakan secara
F
berperlembagaan, atau dilaksanakan menurut prinsip undang-undang
pentadbiran. Dengan berbuat demikian, mahkamah terikat untuk
mengimbangi kebebasan asasi yang diberikan dalam Bahagian II PP
terhadap keperluan keselamatan negara. Mungkin perundangan
akhirnya didapati sebagai berperlembagaan, kerana banyak kebebasan
asasi secara efektif digantung sehubungan dengan perundangan G
tersebut. Walau bagaimanapun, proses pemeriksaan melibatkan
pertimbangan kedua-dua perlembagaan dan juga ‘vires’ budi bicara
Menteri. Kedua-dua akses ke keadilan dan kepatuhan terhadap
peraturan undang-undang dijamin dalam bidang kuasa ini di bawah
PP. H

(13) Dalam mentafsirkan undang-undang, mahkamah terikat untuk

memberi kesan kepada peruntukan-peruntukan perlembagaan. Ini
lebih-lebih lagi apabila undang-undang mempunyai lebih daripada satu
konstruksi. Ini bermaksud menggunakan pentafsiran yang secara serius
mempertimbangkan dan memberi penekanan kepada keperluan untuk I
melindungi hak asasi manusia dan mematuhi peraturan undang-
undang. Peruntukan-peruntukan yang ingin menyimpang dari
kebebasan asasi harus ditafsirkan secara ketat, sehingga setiap

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 33

A pengecualian harus dinyatakan dengan jelas dan tegas. Fakta bahawa

per. 149 PP membenarkan pembatalan hak-hak perlembagaan tertentu
termasuk per. 5(1) PP tidak bermaksud bahawa mahkamah tidak dapat
menggunakan pentafsiran yang bertujuan untuk mengganggu secara
minimum kebebasan asas tersebut. Perkara 149 PP bukanlah lesen
B untuk kehilangan hak asasi sama sekali. Perundangan yang digubalkan
bawah per. 149 PP tidak mengubah tenor am PP, yang mengabadikan
kedaulatan undang-undang, dan sejauh itu mengakui bahawa terdapat
batasan yang jelas mengenai kuasa Badan Perundangan dan Badan
Eksekutif. Menggunakan pendekatan literal untuk undang-undang
C
penahanan pencegahan akan memungkinkan kebijaksanaan sewenang-
wenang dan tidak terikat tidak betul.
(14) Di bawah PP, Badan Kehakiman telah diberikan kuasa khusus bawah
per. 4 PP untuk melaksanakan semakan kehakiman, ketika tentangan
dibuat terhadap perlembagaan undang-undang. Kuasa yang jauh lebih
D besar telah diberikan kepada mahkamah dalam bidang kuasa ini. Dan
ini akhirnya untuk memastikan kepatuhan kedaulatan undang-undang.
Namun, adalah sama pentingnya untuk memerhatikan bahawa setiap
pemeriksaan kehakiman yang dilakukan seharusnya tidak lebih atau
tidak kurang dari yang sekadar dan diperlukan untuk mempertahankan
E
kedaulatan undang-undang dalam konteks statut atau peruntukan-
peruntukan statutori yang menjadi isu. Maksudnya dalam konteks
s. 15B POCA, mahkamah mesti menguraikan kuasa semakan
kehakiman untuk memastikan bahawa mahkamah tidak merebut atau
berusaha menggantikan keputusan Lembaga dengan keputusannya
sendiri. Sejauh itu, adalah kesahihan keputusan yang dipertikaikan
F
yang tertakluk pada pemeriksaan kehakiman. Selanjutnya juga terbuka
untuk pemeriksaan kehakiman atas dasar-dasar yang tersedia untuk
semakan kehakiman di bidang kuasa ini, iaitu tidak sah, tidak rasional
dan salah laku prosedur (yang sudah membentukkan dasar). Keputusan
juga akan tertakluk pada semakan kehakiman di mana keputusan itu
G dibuat atas asas yang menyalahi undang-undang. Sejauh mana
pemeriksaan kehakiman akan bergantung pada fakta setiap kes
tertentu, tetapi mahkamah harus menahan diri daripada mencampur
tangan berdasarkan fakta-fakta merit keputusan Lembaga.
(15) Dalam bidang kuasa kami, pertimbangan utama adalah perlembagaan
H
peruntukan statutori atau statut memandangkan adanya per. 4 PP.
Sekiranya peruntukan statutori tersebut sah secara berperlembagaan,
maka keputusan tersebut berada di bawah pemeriksaan kehakiman
melalui semakan kehakiman. Pada saat inilah prinsip-prinsip undang-
undang pentadbiran berkuat kuasa dan jelas bahawa prinsip utama
I yang harus dipatuhi adalah kedaulatan undang-undang. Dalam konteks
undang-undang tertentu yang dimaksud dalam bidang kuasa ini, seperti
s. 15B POCA, kerana klausa penyingkiran tidak berperlembagaan,
maka usaha untuk menghalang pemeriksaan kehakiman tidak sah.

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34 Current Law Journal [2021] 4 CLJ

Oleh itu, keputusan Lembaga tertakluk pada pemeriksaan kehakiman A

untuk memastikan sama ada keputusannya konsonan dengan
kedaulatan undang-undang, mengguna pakai prinsip-prinsip undang-
undang pentadbiran. Dalam konteks s. 15B POCA, pemeriksaan
kehakiman yang sekadar dan perlu untuk dilaksanakan adalah sama
ada keputusan Lembaga Pengarah untuk menahan tahanan di bawah B
POCA dicemari dengan ketidakadilan atau mala fide dan sama ada
konsonan dengan objektif-objektif perundangan dan per. 149 PP.
Adalah tertakluk pada prinsip-prinsip biasa semakan kehakiman di
mana mahkamah bertekad untuk memastikan sama ada keputusan itu
dicemari oleh penyalahgunaan undang-undang, tidak rasional dan satu C
salah laku prosedur.
(16) Oleh kerana s. 15B POCA adalah terbatal dan tidak sah dan dengan
itu tidak berkesan, adalah terbuka untuk mahkamah menyemak
semula: (a) kesahihan pelaksanaan budi bicara Lembaga, untuk
memastikan sama ada keputusan itu sesuai dengan maksud dan objektif D
POCA dan memenuhi syarat-syarat keabsahan dan kesesuaian
prosedur. Dalam konteks ini, adalah penting untuk menekankan
bahawa pelaksanaan budi bicara Lembaga Pengarah dapat diteliti
secara adil dalam hal-hal selain ketidakpatuhan prosedur; (b) dengan
kata lain, bukan sahaja perkara yang mendedahkan ketidakpatuhan E
prosedur sedia untuk disemak semula, perkara-perkara substantif lain
juga sedia untuk disemak semula dalam menentukan perkara-perkara
habeas corpus. Mahkamah tidak terbatas untuk memeriksa keputusan
tersebut dalam had kesilapan yang berkaitan dengan prosedur yang
ditetapkan dalam perundangan yang relevan dalam proses menahan
F
seseorang di bawah perundangan tersebut. Oleh itu, adalah terbuka
untuk mahkamah mempertimbangkan alasan-alasan prosedural dan
substantif dalam menyemak semula pelaksanaan budi bicara Lembaga
semasa permohonan habeas corpus. Oleh itu, s. 15B POCA tidak
berperlembagaan, dan dengan ini dibatalkan kerana tidak konsisten
dengan per. 4(1) PP. G

Case(s) referred to:

Abdul Razak Baharudin & Ors v. Ketua Polis Negara & Ors And Another Appeal
[2005] 4 CLJ 445 FC (refd)
Ah Thian v. Government Of Malaysia [1976] 1 LNS 3 FC (refd)
AIC Limited v. Fischer [2013] SCC 699 (refd) H
Alma Nudo Atenza v. PP & Another Appeal [2019] 5 CLJ 780 FC (refd)
Ambiga Sreenevasan v. Director Of Immigration Sabah, Noor Alam Khan A Wahid Khan
& Ors [2017] 9 CLJ 205 CA (refd)
Andrew Thamboosamy v. Superintendent Of Pudu Prisons, Kuala Lumpur [1976] 1 LNS
5 FC (refd)
Anisminic Ltd v. Foreign Compensation Commission [1969] 2 AC 147 (refd) I
Anita Khushwaha v. Pushap Sudan AIR [2016] SC 3506 (refd)
Anukul Chandra Pradhan v. Union of India AIR [1997] SC 2814 (refd)
Attorney General v. Lee Kwong Kut [1993] AC 951 (refd)

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 35

A Chia Yan Tek & Anor v. Ng Swee Kiat & Anor [2001] 4 CLJ 61 FC (refd)
Chin Choy & Ors v. Collector of Stamp Duties [1978] 1 LNS 26 FC (refd)
Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ 747 FC (refd)
Council of Civil Service Unions v. Minister for the Civil Service [1985] AC 374 (refd)
(refd)
Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004] 1 CLJ 701 FC (refd)
B Datuk Hj Harun Hj Idris & Ors v. PP [1977] 1 LNS 24 FC (refd)
Foo Loke Ying & Anor v. Television Broadcasts Ltd & Ors [1985] 1 CLJ 511; [1985] CLJ
(Rep) 122 SC (refd)
Golaknath v. State of Punjab [1967] AIR 1643 (refd)
Hemanathan Kunjraman v. Menteri Dalam Negeri, Malaysia Dan Tiga Lagi (05(HC)-
172-07-2019) (Unreported) (refd)
C
Huddard, Parker And Co Pty Ltd v. Moorhead [1908] 8 CLR 330 (refd)
Indira Ghandi v. Raj Narain AIR [1975] SC 2299 (refd)
Indira Gandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals
[2018] 3 CLJ 145 FC (refd)
Inspector-General Of Police v. Tan Sri Raja Khalid Raja Harun [1988] 1 CLJ 39;
D
[1988] 1 CLJ (Rep) 135 SC (refd)
Israil Khan v. State of Assam AIR [1951] Assam 106 (refd)
Janagi v. Ong Boon Kiat [1971] 1 LNS 42 HC (refd)
JRI Resources Sdn Bhd v. Kuwait Finance House (Malaysia) Bhd; President Of Association Of
Islamic Banking Institutions Malaysia & Anor (Interveners) [2019] 5 CLJ 569 FC (refd)
Karam Singh v. Menteri Hal Ehwal Dalam Negeri (Minister Of Home Affairs), Malaysia
E [1969] 1 LNS 65 FC (refd)
Kekatong Sdn Bhd v. Danaharta Urus Sdn Bhd [2003] 3 CLJ 378 CA (refd)
Keng Kien Hock v. Timbalan Menteri Keselamatan Dalam Negeri Malaysia & Ors
[2007] 5 CLJ 171 CA (refd)
Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 FC (refd)
Kesavananda Bharati v. State of Kerala AIR [1973] SC 1461 (refd)
F Ketua Polis Negara & Anor v. Gan Bee Huat & Other Appeals [1998] 3 CLJ 1 SC (refd)
Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh [1997] 2 CLJ 11 SC (refd)
Lau Cheong v. HKSAR [2002] 2 HKLRD 612 (refd)
Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 3 CLJ 914
FC (refd)
Letitia Bosman v. PP & Other Appeals [2020] 8 CLJ 147 FC (refd)
G Liversidge v. Anderson [1942] AC 206 (refd)
Liyanage & Others v. The Queen [1967] 1 AC 259 (refd)
Loh Kooi Choon v. Government Of Malaysia [1975] 1 LNS 90 FC (refd)
Majlis Peguam & Anor v. Tan Sri Dato’ Mohamed Yusoff Mohamed [1997] 3 CLJ 332
SC (refd)
Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579 FC (refd)
H Maung Hia Gyew v. Commissioner [1948] Burma Law Reps 764 (refd)
Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra Malaysia Bhd [2002]
1 CLJ 645 FC (refd)
Minerva Mills Ltd v. Union of India AIR [1980] SC 1789 (refd)
Mohammad Faizal Sabtu v. PP [2012] SGHC 163 (refd)
Nagaenthran v. PP [2019] SGCA 37 (refd)
I
Nagaraja Ponusamy v. Menteri Dalam Negeri, Malaysia & Ors [2010] 4 CLJ 133 FC (refd)
Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609 CA (refd)
Ooi Kean Thong & Anor v. PP [2006] 2 CLJ 701 FC (refd)

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36 Current Law Journal [2021] 4 CLJ

Peguam Negara Malaysia v. Chin Chee Kow & Another Appeal [2019] 4 CLJ 561 FC (refd) A
Pengarah Tanah Dan Galian, Wilayah Persekutuan v. Sri Lempah Enterprise Sdn Bhd
[1978] 1 LNS 143 FC (refd)
Pengusaha, Tempat Tahanan Perlindungan Kamunting, Taiping & Ors v. Badrul Zaman
PS Md Zakariah [2018] 8 CLJ 273 FC (refd)
Petroliam Nasional Bhd v. Nik Ramli Nik Hassan [2003] 4 CLJ 625 FC (refd)
Phang Chin Hock v. PP [1979] 1 LNS 67 FC (refd) B
Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ
105 FC (refd)
PP v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987] CLJ (Rep) 284 SC (refd)
PP v. Datuk Harun Hj Idris & Ors [1976] 1 LNS 180 HC (refd)
PP v. Gan Boon Aun [2017] 4 CLJ 41 FC (refd)
C
PP v. Karpal Singh Ram Singh & Another Case [1988] 2 CLJ 587; [1988] 1 CLJ (Rep)
249 SC (refd)
PP v. Khong Teng Khen & Anor [1976] 1 LNS 100 FC (refd)
PP v. Kok Wah Kuan [2007] 6 CLJ 341 FC (refd)
PP v. Lau Kee Hoo [1983] 1 CLJ 21; [1983] CLJ (Rep) 336 FC (refd)
PP v. Pung Chen Choon [1994] 1 LNS 208 SC (refd) D
PP v. Su Liang Yu [1976] 1 LNS 113 HC (refd)
PP v. Taw Cheng Kong [1998] SGCA 37 (refd)
Prabagaran Srivijayan v. PP [2017] 1 SLR 173 (refd)
Pyx Granite Co Ltd v. Ministry of Housing and Local Government And Others [1960] AC
260 (refd)
R v. Secretary of State for the Home Department ex parte Simms [2002] 2 AC 115 (refd) E
R (On The Application Of Privacy International) v. Investigatory Powers Tribunal And
Others [2019] UKSC 22 (refd)
R Rama Chandran v. Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147 FC (refd)
Ranjit Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629 FC (refd)
Re Application Of Tan Boon Liat @ Allen; Tan Boon Liat v. Menteri Hal Ehwal Dalam
Negeri, Malaysia & Ors [1976] 1 LNS 126 HC (refd) F
Re Tan Boon Liat & Anor Et Al; Tan Boon Liat v. Menteri Hal Ehwal Dalam Negeri
& Ors And Others Appeals [1977] 1 LNS 110 FC (refd)
Rex v. Halliday [1917] AC 260 (refd)
Sajjan Singh v. State of Rajasthan AIR [1965] SC 845 (refd)
Salihudin Hj Ahmad Khalid & Ors v. Pendaftar Pertubuhan Malaysia & Anor [2020] 2
CLJ 849 CA (refd) G
See Kok Kol v. Chong Kui Seng & Ors And Another Appeal [2010] 2 CLJ 481 CA (refd)
Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case
[2017] 5 CLJ 526 FC (not foll)
Shankari Prasad Singh Deo And Others v. The Union of India And Others AIR
[1951] SC 458 (refd)
Shri Ram Krishna Dalmia & Ors v. Shri Justice SR Tendolkar & Ors AIR [1958] SC H
538 (refd)
Sia Cheng Soon & Anor v. Tengku Ismail Tengku Ibrahim [2008] 5 CLJ 201 FC (refd)
Sivarasa Rasiah v. Badan Peguam Malaysia & Anor [2010] 3 CLJ 507 FC (refd)
South East Asia Fire Bricks Sdn Bhd v. Non-Metallic Mineral Products Manufacturing
Employees Union & Ors [1975] 1 LNS 166 HC (refd)
I
State of Bombay v. Atma Ram AIR [1951] SC 157 (refd)

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 37

A Sugumar Balakrishnan v. Director Of Immigration & Ors [1997] 5 CLJ 564 HC (refd)
Sugumar Balakrishnan v. Pengarah Imigresen Negeri Sabah & Anor & Another Appeal
[1998] 3 CLJ 85 CA (refd)
Syarikat Kenderaan Melayu Kelantan Sdn Bhd v. Transport Workers Union
[1988] 1 LNS 234 HC (refd)
Tan Teck Guan lwn. Lembaga Pencegahan Jenayah & Yang Lain [2017] 1 LNS 274 HC
B (refd)
Tan Tek Seng v. Suruhanjaya Perkhidmatan Pendidikan & Anor [1996] 2 CLJ
771 CA (refd)
Teo Soh Lung v. Minister for Home Affairs And Ors [1989] 2 MLJ 449 (refd)
Theresa Lim Chin Chin & Ors v. Inspector General Of Police [1988] 1 LNS 132 SC (refd)
Vacher & Sons Ltd v. London Society of Compositors [1913] AC 107 (refd)
C
Vengadasalam v. Khor Soon Weng & Ors [1985] 1 LNS 46 SC (refd)
Legislation referred to:
Civil Law Act 1956, s. 3(1)(a)
Courts of Judicature Act 1964, ss. 25(2), 84, Schedule para 1
Criminal Procedure Code, s. 363
D Dangerous Drugs Act 1952, ss. 37A, 37B, 39A(2), 39B,
Emergency (Public Order and Prevention of Crime) Ordinance 5, 1969, ss. 4(1),
6(2), 7C, 7D
Federal Constitution, arts. 4(1), (3), (4), 5(1), 6, 7, 8(1), 9, 10(1)(c), 11, 12, 13, 74,
75, 76, 121(1), (1A), (1B), (2), 128(2), 149(1)(a), (b), (c), (d), (e), (f), 150,
151(1)(b), (3), 159(1), (3), 160(1), (2), 162(6), Sixth Schedule
E Immigration Act 1959/63, s. 59A(1)
Internal Security Act 1960, ss. 8B(1), 8C
Interpretation Acts 1948 and 1967, ss. 41, 50
Land Acquisition Act 1960, s. 40D
Legal Profession Act 1976, s. 46(1)
Pengurusan Danaharta Nasional Berhad Act 1998, s. 72
F
Prevention of Crime Act 1959, ss. 4A, 7B(2), 9(3), 10, 12, 14, 15(1), 15A, 15B(1),
19A(1), 19C(3), 19H(2), 21A, First Schedule
Rules of Court 2012, O. 53 rr. 1(1), 2(2), 5(1), 6, O. 92 r. 4
Rules of the Federal Court 1995, r. 137
Constitution of India [Ind], arts. 19(1)(d), (5), 31C, 368
G Constitution of the Republic of Singapore [Sing], art. 4
Foreign Compensation Act 1950 [UK], s. 4(4)
Intelligence Services Act 1994 [UK], s. 5
Misuse of Drugs Act [Sing], s. 33B(4)
Regulation of Investigatory Powers Act 2000 [UK], s. 67(8)
H Other source(s) referred to:
Alan M Dershowitz, The Law of Dangerousness: Some fictions about Predictions, 23 J
Legal Educ 24 (1970))
De Smith’s Judicial Review, pp. 11-004
MP Jain, Indian Constitutional Law, p 1641

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38 Current Law Journal [2021] 4 CLJ

(Appeals No: 05(HC) - [303, 304, 305, 307, 308] - 12-2019) A

For the appellants - Najib Zakaria, Noor Hisham Ismail & Isa Aziz; M/s Najib Zakaria,
Hisham & Co
(Appeal No: 05(HC)-7-01-2020(W))
For the appellant - Gopal Sri Ram, Ravin Jay & Yasmeen Soh; M/s Haijan Omar
& Co B
For the respondents - Shamsul Bolhassan, Liew Horng Bin & Muhammad Sinti; SFCs
For the amicus curiae - Gurdial Singh Nijar, Abraham Au & Shad Saleem Faruqi
[Editor’s note: For the High Court judgment, please see Rovin Joty Kodeeswaran v. Lembaga
Pencegahan Jenayah & Ors [2019] 1 LNS 1958 (affirmed).]
Reported by Suhainah Wahiduddin C

JUDGMENT
Zabariah Mohd Yusof FCJ (majority):
Background D

[1] The six appellants appealed against the decision of the learned Judicial
Commissioner which dismissed the application by the appellants for a writ
of habeas corpus. The six appellants were ordered to be detained under
s. 19A(1) of Prevention of Crime Act 1959 (POCA) by the Chairman/
Deputy Chairman of the Prevention of Crime Board (Board) for a period of E
two years. Pursuant to the order, the respective appellants are to be detained
at the respective Pusat Pemulihan Khas (PPK).
The Issue In The Appeals
The Basis Of The Challenge F

[2] Encik Najib Zakaria, counsel for the five appellants, Rovin Joty
a/l Kodeeswaran, Darweesh bin Raja Sulaim, Ragu a/l Vitee, Devandren
a/l James and Velu a/l Rajakumar indicated that he would be raising only
one issue before this court, namely, whether s. 15B of POCA (an ouster
clause provision) which purports to limit the exercise of judicial power is G
ultra vires art. 121(1) of the Federal Constitution (FC) and therefore
unconstitutional.
[3] Dato’ Seri Gopal Sri Ram, counsel for the appellant Nivesh a/l
Mohan, raised an additional issue in addition to the issue raised by the other
five appellants, namely, whether s. 7B of POCA had been complied with by H
the Board.
[4] Corollary to the issues raised in paras. [2] and [3] above, the following
four points were raised by the appellants in the course of arguments, namely:
(i) section 15B of POCA which was enacted under art. 149 which ousts the I
jurisdiction of the courts to perform judicial review is unconstitutional
by virtue of art. 4(1) of the FC;

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 39

A (ii) the ouster clause in s. 15B of POCA is an attempt by Parliament to

suppress constitutional powers given to the courts as provided under
art. 121(1) of the FC. This will be taken together with the main issue
as aforesaid;
(iii) section 15B of POCA encroaches on judicial power thus breaching the
B
doctrine of the separation of powers between the three branches, namely
the Executive, Legislative and the Judiciary;
(iv) section 15B of POCA which seeks to oust the courts from exercising
their rights under art. 4(1) of the FC contravenes that very article and
to that extent contravenes the “basic structure” of the FC. We will
C
address these four points in this judgment.
[5] In the present appeals’ we were also aided by the submissions of Datuk
Gurdial Singh Nijar, and Dato’ Shad Saleem Faruqi acting as amicus curiae.
Submission By The Appellants
D
[6] Dato’ Seri Gopal Sri Ram acting for and on behalf of the appellant,
Nivesh submitted as his first ground in challenging s. 15B of POCA as being
unconstitutional and void, that the said section infringes art. 121(1) of the FC
and should be struck down by this court. It is unconstitutional as it curtails
the powers of the courts on the right to judicial review in relation to
E
substantial merits of the Board’s decision.
[7] Such infringement removes the constitutionally guaranteed right of
any detenu to effectively challenge his detention in relation to substantive
matters, not just in regard to any question on compliance with any procedural
F requirement in POCA, as it involves the fundamental rights of the appellants.
[8] The second ground is that the impugned provision impedes access to
justice under art. 5(1) of the FC. Following PP v. Gan Boon Aun [2017] 4 CLJ
41; [2017] 3 MLJ 12 access to justice is a fundamental right and an ouster
clause has the effect of impeding such right. Access to justice has two
G dimensions, namely substantial justice and remedial justice. It is submitted
that even if the appellants can show or established an Anisminic error
following the decision of the House of Lords in Anisminic v. Foreign
Compensation Commission [1969] 2 AC 223 (Anisminic), there is nothing the
appellants can achieve because the ouster clause is complete. The court
H cannot even enquire on an administrative plea and the appellants cannot
cross the threshold because he could not invite the court to look into whether
there is an Anisminic error. Effectively, the ouster clause has impacted on the
fundamental rights of the appellants on access to justice.
[9] He submitted that these appeals do not involve any novel question but
I settled principle of law based on the trilogy of cases, namely Semenyih Jaya
Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017] 5 CLJ
526; [2017] 3 MLJ 561 (Semenyih Jaya), Sivarasa Rasiah v. Badan Peguam

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40 Current Law Journal [2021] 4 CLJ

Malaysia & Anor [2010] 3 CLJ 507 (Sivarasa Rasiah) and Indira Ghandi Mutho A
v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ
145; [2018] 1 MLJ 545 (Indira Ghandi) which established that judicial review
is part of the basic structure of the FC.
[10] The cases relied on by the respondents are pre-Semenyih Jaya. If the
B
court agrees with the appellants, the Federal Court’s decision in
Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002]
4 CLJ 105; [2002] 3 MLJ 72 (FC); [1998] 3 CLJ 85; [1998] 3 MLJ 289 (CA)
(Sugumar Balakrishnan) would no longer be good law. It was submitted that
Indira Ghandi and Semenyih Jaya had given those pre-Semenyih Jaya cases a
fatal blow. C

[11] Save and except for Sugumar Balakrishnan, the court has so far adopted
an approach on an administrative plane rather than the constitutional context
in all of the case laws on ouster clauses. Syarikat Kenderaan Melayu Kelantan
Sdn Bhd v. Transport Workers Union [1988] 1 LNS 234; [1990] 1 MLJ 5 and
D
South East Asia Fire Bricks Sdn Bhd v. Non-Metallic Mineral Products
Manufacturing Employees Union & Ors [1975] 1 LNS 166; [1975] 2 MLJ 250
were all cases which dealt with ouster clauses in the administrative law
context. It was submitted that this is the first time it is being approached on
a constitutional basis.
E
[12] Dato’ Seri Gopal Sri Ram adopted the opinions by Dato’ Shad Saleem
Faruqi and Datuk Gurdial Singh Nijar who acted as amicus curiae to the court
in buttressing his argument and moving this court to strike down s. 15B of
POCA on the ground that it is unconstitutional.
[13] Encik Najib Zakaria, counsel for the other five appellants argued that F
since 1977, the Federal Court had decided that ouster clause cannot
effectively oust the jurisdiction of court or salvage the illegality of detention
by the Executive when the matters ventilated involved constitutional
provisions. Re Tan Boon Liat & Anor Et Al; Tan Boon Liat v. Menteri Hal
Ehwal Dalam Negeri & Ors And Others Appeals [1977] 1 LNS 110; [1977]
G
2 MLJ 108 was referred to, as support for his proposition.
[14] It was also submitted by counsel of the appellants that judicial review
forms a hallmark of judicial power which provides a crucial mechanism for
ensuring the necessary checks and balances to ensure that the Executive and
the Legislature act within their constitutional limits and the upholding of the H
rule of law.
[15] Applying the case of R Rama Chandran v. Industrial Court Of Malaysia
& Anor [1997] 1 CLJ 147; [1996] 1 MELR 71 where Eusoff Chin CJ held
that powers of the High Court is not limited to issuing prerogative writs but
extends so far as to enable the court to issue any appropriate orders or I
directions, it is submitted that the courts have the power to review the
decision of the authority on the merits and mould the relief according to the
exigencies of the situation in order to satisfy the insistent demands for justice.

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 41

A [16] Mohd Azmi FCJ in Majlis Peguam & Anor v. Tan Sri Dato’ Mohamed
Yusoff Mohamed [1997] 3 CLJ 332; [1997] 1 MLRA 302 agreed that once the
Legislature confers powers on the courts, the judges should not shy away
from those powers by setting up all kind of barricades along their path.
[17] Encik Najib Zakaria echoed the submission of Dato’ Seri Gopal Sri
B
Ram on the prohibition by s. 15B of POCA to challenge the decision of the
Board except on procedural non-compliance infringes upon the judicial
power vested in the High Court to remedy, through judicial review, any
unlawful detention as against any person who challenges the lawfulness/
legality of his detention.
C
[18] Article 5(1) of the FC provides that:
Liberty of the person
5. (1) No person shall be deprived of his life or personal liberty save in
accordance with law.
D
This right is wide enough to encompass the right to be engaged in lawful and
gainful procedure that under such article it allows the applicant to argue fresh
issues subject to liberty of the person. The courts should treat the
non-compliance to the appeal directory if the issues are substantial in nature
and not frivolous.
E
[19] Counsel for the appellants submitted that the appellants had been
deprived of their liberty not in accordance with law. Hence it is the
submission by the appellants that s. 15B(1) of POCA is unconstitutional and
ought to be struck down. As such deprivation is unlawful, the writ of habeas
corpus is non-discretionary and must be issued by this court.
F
[20] Encik Najib Zakaria also relied on Alma Nudo Atenza v. PP & Another
Appeal [2019] 5 CLJ 780; [2019] 3 MLRA 1 (Alma Nudo Atenza) in
submitting that the effect of the ouster clause shares a similar sentiment and
effect of the draconian provision of s. 37B of the Dangerous Drugs Act 1952
G which ultimately deprived the appellants from reasonable opportunity to
succeed in his defence. Likewise, the detenu in preventive detention has no
appropriate chances of success in discharging the burden in proving that his
detention is tainted with mala fide and as well affected his reasonable chance
to succeed in making a representation.
H [21] Counsel also asserted that although POCA is promulgated under
art. 149(1) of the FC, which allows suspension of certain provisions on
fundamental liberties guaranteed in the FC to suppress subversion and/or
action prejudicial to public order, it cannot restrict judicial scrutiny of
legality of a decision of the Board to matters pertaining solely to procedural
I
compliance. The wording of the said article states any law made pursuant to
art. 149 is valid notwithstanding that it is inconsistent with arts. 5, 9, 10 and
13 only. However, it was submitted that art. 149 of the FC does not suspend
the operation of art. 121 and art. 4 of the FC.

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[22] It was further submitted that s. 15B of POCA violates the basic A
structure of the FC and the doctrine of separation of powers by impeaching
judicial power as provided in art. 121(1) of the FC.
[23] Encik Najib Zakaria urged for this court’s indulgence for a complete
release of the appellants on the basis that in cases of arbitrary detention
B
involving habeas corpus application, complete release is the sole outcome if
the detention process was declared null and void.
Submissions By The Respondents
[24] The respondents assert that s. 15B of POCA is constitutional and that
the appeals by the appellants are without merits and ought to be dismissed. C

[25] POCA was enacted and amended pursuant to art. 149 of the FC. It
validates laws passed notwithstanding that it is inconsistent with arts. 5, 9,
10, or 13. It is recognised that legislation promulgated under art. 149 may
provide for the curtailment of fundamental rights on grounds of public order
and national security, of which s. 15B under POCA is one of it. D

[26] Preventive law like POCA is a piece of adjectival law and does not
create any substantive offence. Although the right to life under art. 5 does
encompass both adjectival and substantive law, however the fundamental
liberties provisions in the FC are not without limits but expressed to be “save
E
in accordance with law”.
[27] The intent and purport of the amendments to POCA which inserted
s. 15B was clearly explained by the speech of the Minister of Home Affairs
at the second and third readings of Parliament in the Dewan Rakyat as
evidenced from the Hansard of Dewan Rakyat dated 1 October 2013 when F
tabling the said amendments to POCA, at pp. 44-46. Essentially it is to
address the worrying rise in the crime index, particularly in organised crimes
or crimes by a substantial body of persons in the country, namely:
(i) the use of firearms;
G
(ii) murder using firearms;
(iii) gang fights wrestling for territorial control for drugs trafficking and
crime activity;
(iv) collection of protection money amongst traders or residents of
residential areas; H

(v) human trafficking syndicates; and

(vi) gambling syndicates.
[28] The amendment Bill seeks to propose stricter laws to combat
organised and grave crimes as such. If these crimes are not curbed, it will I
have an adverse effect on the economy of the country as it will instil fear
amongst investors, locally and overseas as instability of the country is one

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A of the factors one would look for investment purposes. It has adverse effects
politically, as these perpetrators who have the means may infiltrate
politicians, Executives and Government servants in covering-up their
activities. It may have a negative influence amongst the youth of the country
as they may be recruited or forced to join these gang members or syndicates.
B The Bill was intended to strengthen POCA 1959 which was considered to be
obsolete and no longer relevant in keeping up with current time and present
technology. Hence after extensive debate in the Dewan Rakyat, Parliament
decided to:
... seterusnya untuk memastikan undang-undang ini adalah lebih efektif
C dalam pembenteraskan jenayah, maka undang-undang ini akan dipinda di
bawah perkara 149 Perlembagaan Persekutuan. Justeru fasal 23 dibuat bagi
memperkenalkan bahagian baharu IVA iaitu untuk mengadakan perintah
tahanan bagi tempoh tidak melebihi 2 tahun pada satu-satu masa selain
daripada perintah pengawasan yang sedia ada.

D [29] Section 15A of POCA was referred to, by the Minister in his speech
which subsequently was renumbered as s. 15B in the amendment of 2017
which took effect on 15 December 2017 and has its effect as follows:
Manakala ... mengenai pengenalan seksyen baru 15A iaitu tiada semakan
kehakiman boleh dibuat terhadap keputusan yang dibuat oleh Lembaga
E Pencegahan Jenayah kecuali mengenai pematuhan kepada prosedur yang
ditetapkan.
[30] Further in the speech by the Deputy Minister on 10 October 2013 as
reported, recorded in the Hansard of the Dewan Rakyat at p. 59 he said that:
... orang tahanan mempunyai hak untuk permohonan habeas corpus
F terhadap perintah tahanan yang dibuat oleh Lembaga atau membuat
semakan kehakiman terhadap perintah pengawasan yang dikeluarkan oleh
Lembaga. Di dalam permohonan ini, suspek hanya boleh mempertikaikan
mengenai ketidak patuhan prosedur. Mahkamah tidak boleh
mempertikaikan keputusan Lembaga berkaitan perintah tahanan atau
perintah kawasan kecuali atas ketidak patuhan prosedur. Ini kerana
G Lembaga telah berpuas hati terhadap kepentingan keselamatan awam
atau pencegah jenayah. Perkara ini adalah terletak di tangan eksekutif.
[31] Whether the facts upon which the order for detention is to be based
is sufficient or relevant, is not to be questioned in any court of law as that
is a policy decision within the province and discretion of the Executive. One
H
cannot assume that the powers conferred upon the Executive by statute will
be abused (refer to Lord Atkinson in Rex v. Halliday [1917] AC 260).
[32] These cases under POCA essentially relate to national security dealing
with preventive laws and only those responsible shall be the judge of what
I
national security is and what it requires. It is undesirable for a judge in a
court of law to deliberate on matters of national security and to have the
subject of evidence to be discussed in public. It deals with preventive justice
and it “proceeds upon the principle that a person should be restrained from

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doing something which, if free and unfettered, it is reasonably probable he A

would do, it must necessarily proceed in all cases, to some extent, on
suspicion or anticipation as distinct from proof.” (Rex v. Halliday)
[33] Apart from referring to the Hansard, the intention of Parliament in
introducing the POCA Bill must also be gathered from the wordings of the
B
ouster clause provision. In the language of s. 15B of POCA, it is clear and
explicit in excluding judicial review by the court of any decision of the
Chairman or Deputy Chairman under the Act save and except on grounds of
procedural non-compliance, hence there is indeed no ambiguity as to the
intention of Parliament that the said provision is conclusive on the exclusion
of judicial review. C

[34] Guided by the consistent judgments of this court in Loh Kooi Choon
v. Government Of Malaysia [1975] 1 LNS 90, Pihak Berkuasa Negeri Sabah
v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ 105, Kerajaan
Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81, Abdul Razak Baharuddin
D
& Ors v. Ketua Polis Negara & Ors And Another Appeal [2005] 4 CLJ 445, Chua
Kian Voon v. Menteri Dalam Negeri, Malaysia & Ors [2020] 1 CLJ 747 at p. 740,
Hemanathan Kunjraman v. Menteri Dalam Negeri, Malaysia Dan Tiga Lagi
05(HC)-172-07-2019 the respondents submitted that the contention of the
appellants that s. 15B of POCA is unconstitutional is without merits. The
aforesaid decisions of the Federal Court dealt with the issue of the E
constitutionality of ouster clauses similar to s. 15B of POCA and it has been
consistently established by this court through those cases that the ouster
clauses are not unconstitutional.
[35] There is a presumption of constitutionality in every legislation passed
F
by Parliament. The burden to prove otherwise lies on the party who present
the challenge (refer to PP v. Datuk Harun Hj Idris & Ors [1976] 1 LNS 180,
PP v. Pung Chen Choon [1994] 1 LNS 208). This presumption of
constitutionality issue is addressed at paras. 68-74 of this judgment.
[36] The respondent submitted that the trilogy of cases, Semenyih Jaya,
G
Sivarasa Rasiah and Indira Ghandi referred to by the appellants can be
distinguished on its facts and issues involved and hence cannot be held in
support of the contention by the appellants.
[37] Therefore s. 15B of POCA is constitutional and for the sixth appellant,
Nivesh Nair a/l Mohan, he failed to raise any contravention of any H
procedural requirements.
Submission By Amicus Curiae
[38] It has been canvassed at great length before us by both counsels acting
as amicus curiae, that the ouster clause, s. 15B of POCA is unconstitutional
I
in light of the trilogy of the Federal Court decisions of:
(i) Sivarasa Rasiah v. Badan Peguam Malaysia & Anor;

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A (ii) Semenyih Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another
Case; and
(iii) Indira Ghandhi Mutho v. Pengarah Jabatan Agama Islam Perak & Ors And
Other Appeals.
B Both counsels acting as amicus curiae support the stand by counsels of the
appellants as to the issue of constitutionality of s. 15B(1) of POCA.
[39] Our courts had always assumed jurisdiction to review decision even
though there is an ouster clause and that the Federal Court decision in Pihak
Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal [2002] 4 CLJ
C 105 is no longer good law and ought to be given a burial.
[40] The Federal Court in Semenyih Jaya gave substantive effect to the
“basic structure doctrine”. The decisions of the Federal Court in Indira
Ghandhi, Semenyih Jaya and also Sivarasa Rasiah emphasised that the basic
structure components (of which judicial review was integral) are sacrosanct
D and inviolate and could not be amended by recourse to art. 159(1) of the FC
which reads:
Amendment of the Constitution
159.(1) Subject to the following provisions of this article and to art. 161E
E the provisions of this Constitution may be amended by Federal law.
[41] Dato’ Shad Saleem Faruqi said in his article “Ouster Clause: A
Constitutional Perspective” that, it is for the courts and not Parliament to
determine whether a law is arbitrary, unfair or unreasonable (PP v. Khong
Teng Khen & Anor [1976] 1 LNS 100; [1976] 2 MLJ 166 and Datuk Hj Harun
F Hj Idris & Ors v. PP [1977] 1 LNS 24; [1977] 2 MLJ 155). In our country,
Parliament is not supreme and the power of judicial review is an essential
basic feature of our FC. There are substantive as well as procedural limits
on its powers.
[42] Courts can prevent Parliament from destroying the “basic structure”
G of the FC on the basis of the trilogy of cases. It is admitted that the “basic
structure” is not explicated anywhere in the FC but a mere constitutional
doctrine that has taken roots from India and adopted in Malaysia’s
jurisprudence by Sivarasa Rasiah and Semenyih Jaya. In embracing the basic
structure doctrine, it is impossible to argue that “law” in art. 5(1) is whatever
H Parliament conceives it to be. The basic structure principle will be more
consistent if we leave the door open for judicial review whenever an
unreasonable, harsh, oppressive, in breach of natural justice or clear bad faith
of laws is promulgated by Parliament. The concept of “law” in our FC,
especially arts. 5, 8, 10, 13 and 160 (2) does not envisage a law that is unjust,
I
arbitrary, unreasonable, oppressive, or disproportionate (See Alma Nudo
Atenza).

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[43] The substantive as well as the procedural content of all of our laws are A
subjected by the guarantee of fundamental rights in arts. 5 to 13 of the FC
with particular reference to the guarantee of due process in art. 5 and equality
in art. 8. When interpreting laws, it is incumbent upon the courts to ensure
that no law transgresses the limits of any of the provisions of the FC,
especially the provisions on human rights. B

[44] Judges are under an oath to preserve, protect and defend the FC. The
duty which is part of the judicial oath in the Sixth Schedule of the FC cannot
be diluted either by ordinary legislation or by any constitutional amendment.
[45] The overriding powers of art. 149 are confined to matters in arts. 5,
C
9, 10 and 13. It cannot encroach on the ideals and principles of art. 121.
Laws enacted under art. 149 which purports to oust the jurisdiction of the
courts to perform judicial review is unconstitutional by virtue of arts. 4(1)
and 121(1) of the FC.
[46] Semenyih Jaya has laid the foundation that the judicial function is part D
of the basic structure of the FC. Ouster clauses which strip the courts of their
supervisory judicial function to examine whether a public body has acted
unconstitutionally should be declared to be unconstitutional despite it being
explicitly worded ousting judicial review.
Our Decision E

Approach In The Determination Of The Constitutionality Of Section 15B Of

POCA
[47] The Supreme Court in Theresa Lim Chin Chin & Ors v. Inspector General
Of Police [1988] 1 LNS 132; [1988] 1 MLJ 293 provides a guidance in dealing F
with the determination of the legality and constitutionality of any impugned
provision, is to take the broad and practical approach, namely, to see the
scheme of the impugned legislation, POCA. We are also guided by the clear
provisions of the FC in relation to the subject matter (in our present context,
preventive detention).
G
[48] Therefore, in line with this approach in dealing with the issue at hand,
(namely whether s. 15B of POCA which purports to limit the exercise of
judicial power is ultra vires art. 121(1) of the FC and therefore
unconstitutional) in this judgment we will address the relevant provisions of
POCA and the FC applicable to the present challenge, namely, s. 15B of H
POCA and arts. 4(1), 121(1), 149. We will also address the doctrine of
separation of powers as it has been raised by the appellants.
[49] However, before we proceed to address the constitutionality and
validity of the impugned provisions, it is pertinent to understand the
historical perspective and intention of the framers and the founding fathers I
of the FC in the drafting of the relevant articles in the FC, namely on powers

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A of the court, vis-à-vis on judicial review and laws on preventive detention. Of

significance is the role played by the Reid Commission which was tasked
with the drafting of the FC.
Reid Commission
B [50] When the Reid Commission was established, they recognised what
was already inherent in the judicial set-up then, that the jurisdiction and
powers conferred onto a court were matters within the Legislative powers of
the Federation, subject to the express terms of the Federation Agreement.
The Federation Agreement provided for a Supreme Court which consisted of
a High Court and Court of Appeal. The scope and extent of jurisdiction and
C
powers of the courts were determined by Federal law. The Supreme Court’s
jurisdiction then, was expressly conferred by the principal instrument. The
Commission did not see it necessary to propose any considerable changes in
such arrangement. This is evident in cls. 14(1) and (3), and cl. 15 of the
Malayan Union Order in Council 1946 (at 31 R(A)BOA). Identical
D
arrangement was adopted and followed in cl. 77(1), (2) and (5) of the
Federation of Malaya Agreement 1948 (at 33-34 R(A)BOA). This distinctive
feature was consistently adopted and manifested in arts. 114(4), 118, 119(2),
122, 123, 124(1) and (2) of the draft Constitution (at 14-17 R(A)BOA). These
same clauses in the draft Constitution were adopted into the constitutional
E proposals for the Federation of Malaya then, where for the very first time,
art. 121 made mention of the vesting of judicial power of the Federation as
reposed in a Supreme Court and such inferior courts as may be provided by
Federal law. Article 121 as was proposed in the constitutional proposals for
the Federation of Malaya then was officially adopted in the Constitution of
F the Federation of Malaya via a Government Gazette. When Malaysia was
formed, The Malaysia Act (No 26 of 1963) amended art. 121 of the 1957
Constitution to establish three High Courts. The report of the
Inter-Governmental Committee 1962 provides that each of the High Courts
should have original jurisdiction and such appellate and revisional
G
jurisdiction as may be provided by Federal law.
[51] Evidently, the conferment of courts’ jurisdiction and powers by
Federal law, is entrenched in our constitutional history, so much so that it
was accepted as an unquestionable fact by the Reid Commission. Acceptance
of this fact was fortified by insertion of cl. 17 “courts and jurisdiction” in
H the division of various powers between the Federal and State Government
during the drafting stage (41st Meeting of the Commission on 5 October 1956
(35 R(A)BOA).
[52] The Reid Commission did not consider the division of various three
branches of powers to be constitutionally contrary to the doctrine of
I separation of powers. The Commission had addressed and considered at
length during the drafting process, any possible potential discordance
between this arrangement and the doctrine of separation of powers. It was

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48 Current Law Journal [2021] 4 CLJ

originally proposed by Sir Ivor Jennings for the tentative draft provisions on A
“fundamental liberties”. Of significance to those proposed tentative
provisions which are relevant for present purpose were art. 1 “The Rule of
Law”, art. 2 “Enforcement of the Rule of Law” and art. 3 “Liberties of the
Person” (CO 889/2 at 36-37 R(A)BOA). In the “Comments on the Draft”
(CO 889/2 at 38-39 R(A)BOA), Sir Ivor Jennings explained that the B
provision for enforcement by way of judicial review and habeas corpus was
meant to be extended to the whole Constitution and not merely to the chapter
on fundamental liberties.
[53] The Commission was clear on the issue of preventive detention and
Emergency provisions, that they should be treated narrowly from the general C
remedies proposed for the enforcement of liberty of the person. Questions
were raised on the potential invalidation of an otherwise valid statutory
ouster clause in the seemingly absolute terms that it was drafted. After much
deliberation and consultation with London experts, it was finally decided
that it was impracticable to provide the limits of the Constitution for all D
possible contingencies. It is considered that sufficient remedies can best be
provided by ordinary law. As to the type and extent of remedy available is
a matter for the Legislature to decide.
[54] Thus, it was decided by the Reid Commission that Federal law may
prescribe what the Legislature considers as “sufficient remedy” to meet the E
demand of the circumstances. These provisions were formulated in such a
manner after numerous discussions, meetings and mature consideration
between the committees in the Reid Commission.
[55] It is to be observed that arts. 149 (laws against subversion, organised
F
violence and acts prejudicial to public order), 150 (laws on the proclamation
of emergency) and 151 (restrictions on preventive detainees) were specially
drafted and provided in the FC as separate and distinct provisions from Part
II of the FC under “special powers against subversion, organised violence,
and acts and crimes prejudicial to the public and emergency powers”. In this
regard, it is relevant to refer to the report of the Federation of Malaya G
Constitutional Commission by the Reid Commission in 1957 which
succinctly explained the powers accorded to Parliament to enact laws in
relation to preventive legislations, at p. 74, para. 172 and p. 75 at para. 174
which stated:
172. Neither the existence of fundamental rights nor the division of H
powers between the Federation and the States ought to be permitted to
imperil the safety of the State or the preservation of a democratic way of
life. The Federation must have adequate power in the last resort to
protect these essential national interests. But in our opinion infringement
of fundamental rights or of State rights is only justified to such an extent
I
as may be necessary to meet any particular danger which threatens the
nation.
...

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A 174. To deal any further attempt by any substantial body of persons to

organise violence against persons or property by a majority we recommend
that parliament should be authorised to enact provisions design for that
purpose notwithstanding that such provisions may involve
infringements of fundamental rights or State rights. (emphasis added)

B [56] Such is the brief factual historical background as to how the provision
of art. 121 came into our FC and how the provisions on preventive detention
and remedies were crafted in our legislation. A constitution must be
interpreted in light of its historical and philosophical context, as well as its
fundamental underlying principles that shaped its structure into what it is
C
today.
[57] We will now address the four points raised by the appellants’ counsel
in the course of their submission in mounting the challenge against s. 15B of
POCA.
Point (i)
D
Whether Section 15B Of POCA Which Was Enacted Under Article 149 Ousts
Jurisdiction Of The Courts To Exercise Judicial Review Is Unconstitutional By
Virtue Of Article 4(1) Of The FC
Section 15B Of POCA
E
[58] Originally, POCA was an ordinary legislation applicable only to West
Malaysia. By virtue of the Prevention of Crime (Amendment and Extension)
Act 2014, POCA was made a law pursuant to art. 149 of the FC and
applicable throughout Malaysia. Section 15B of POCA was inserted via Act
A1459 in 2014 and further amended via Act A1484 in 2015. Act A1484
F inserted a new paragraph to clarify that judicial review includes proceedings
instituted by way of a writ of habeas corpus.
[59] The impugned provision limits judicial review and challenge of the
Board’s decision to one of procedural non-compliance only. It is not a
complete ouster clause. The impugned provision reads:
G
15B Judicial Review of act or decision of Board
(1) There shall be no judicial review in any court of, and no court shall
have or exercise any jurisdiction in respect of, any act done or decision
made by the Board in the exercise of its discretionary power in accordance
H with this Act, except in regard to any question on compliance with any
procedural requirement in this Act governing such act or decision.
(2) In this Act, “judicial review” includes proceedings instituted by way of:
(a) an application for any of the prerogative orders of mandamus,
prohibition and certiorari;
I
(b) an application for a declaration or injunction;
(ba) a writ of habeas corpus;

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50 Current Law Journal [2021] 4 CLJ

(c) any other suit, action or other legal proceedings relating to or arising A
out of any act done or decision made by the Board in accordance
with this Act.
[60] The courts derive its statutory basis for judicial review from s. 25(2)
read with para. 1 of the Schedule of the Courts of Judicature Act 1964 (CJA)
which states: B

(i) The High Court is conferred with additional powers set out in the
Schedule to the Act; and
(ii) Such additional powers shall be exercised in accordance with any
written law or rules of court relating to the same. C
(emphasis added)
Paragraph 1 of the Schedule to the CJA gives power to the High Court to
issue to any person or authority, directions, orders or writs, including habeas
corpus, mandamus, prohibition, quo warranto and certiorari, or any others for
D
the enforcement of the rights conferred by Part II of the FC or for any
purpose.
[61] The prerogative powers exercised by the courts are provided by O. 53
of the Rules of Court 2012 (ROC). These prerogative powers are issued in
judicial review proceedings under O. 53 r. 1(1) of the ROC. Order 53 r. 2(2), E
O. 53 r. 5(1) and O. 53 r. 6 of the ROC also allow for declaration, injunction
and damages to be claimed by the applicant as well as to seek for discovery
and interrogatories in the judicial review application.
Article 4 Of The FC And Its Scope
F
[62] POCA is a post-Merdeka legislation, hence the challenge as to the
validity of its provision is governed by art. 4 of the FC. Article 4(1) provides
that legislation passed after Merdeka day which is inconsistent with the FC
shall be void. For clarity, we reproduced art. 4(1), which provides:
This Constitution is the supreme law of the Federation and any law
G
passed after Merdeka Day which is inconsistent with this Constitution
shall, to the extent of this inconsistency be void.
[63] Suffian LP in Ah Thian v. Government Of Malaysia [1976] 1 LNS 3;
[1976] 2 MLJ 112, held that we have a written Constitution and that
Parliament is not supreme. Hence the power of Parliament and the State
H
Legislature is limited by the FC. Under the FC, written law may be
invalidated by the courts on these grounds:
(i) in the case of Federal written law, because it relates to a matter with
respect to which Parliament has no power to make law, and in the case
of State written law, because it relates to a matter with respect to which I
the State Legislature has no power to make law (see art. 74); or
(ii) in the case of both Federal and State written law, because it is
inconsistent with the Constitution, (see art. 4(1)); or

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A (iii) in the case of State written law, because it is inconsistent with Federal
law (see art. 75).
There is no restriction on the court’s power to declare any law void on
grounds (ii) or (iii) and may be exercised by any court in the land and in any
proceeding whether it be initiated by the Government or an individual.
B
However, the power to declare any law invalid on ground (i) is subject to
three restrictions as prescribed by the FC in art. 4(3) and (4). As grounds (i)
and (iii) are not relevant to our purpose we will not be addressing the
restrictions under those grounds. Our present appeal is concerned with
ground (ii).
C
[64] The word “law” in art. 4(1), means only ordinary laws enacted by
Parliament and excludes law to amend the Constitution enacted under
art. 159. Only the former must accord with the FC. The latter need not, as
to interpret otherwise, would create an absurdity where no change
D whatsoever can be made to the FC (as per the judgment of Suffian LP in
Phang Chin Hock v. PP [1979] 1 LNS 67).
[65] Similar sentiment was expressed by Raja Azlan Shah FJ in Loh Kooi
Choon when he remarked that art. 4(1) did not apply to the FC itself as the
FC could not be internally inconsistent. “In the context of art. 160(1), “law”
E must be taken to mean law made in the exercise of ordinary Legislative
power and not made in exercise of power of constitutional amendment under
art. 159(3), with the result that art. 4(1) does not affect amendments made
under cl. (3) of art. 159.” Therefore, Parliament may amend the Constitution
in any way they think fit, provided they comply with all the conditions
F precedent and subsequent regarding the manner and form prescribed by the
FC. Thus, amending legislation is valid even if they are inconsistent with the
FC provided there is compliance with the procedures set out in art. 159.
However, “that power, though entrusted to Parliament, has been so hedged
about with restrictions that its exercise can only be made after mature
consideration by Parliament and the content of a larger proportion of its
G
members than the bare majority required for ordinary laws” (as per Raja
Azlan Shah FJ in Loh Kooi Choon). Such is the reflection of the provision in
the FC as to the flexibility in amending the FC to adapt to the changing values
of society, but at the same time, it also provides stringent checks to prevent
overzealous amendments that undermine the original intention of the framers
H of the FC.
[66] The appellants argued that s. 15B which was enacted pursuant to
art. 149, which ousts the jurisdiction of the courts to perform judicial review
is unconstitutional by virtue of art. 4(1) of the FC. That cannot be so, because
art. 4(1) of the FC will operate in the event s. 15B(1) is inconsistent with any
I
constitutional provision that confers it with the legitimacy and force of law.
Given that art. 149 is the provision which breathes the force of law and
legitimacy into s. 15B, it cannot be said that the said section is

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52 Current Law Journal [2021] 4 CLJ

unconstitutional. In this regard, Abdul Rahman Sebli FCJ in Maria Chin A

Abdullah v. Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579 has succinctly
explained the operation of art. 4(1) in the majority decision of the said case
when the court was dealing with the constitutionality of s. 59A of the
Immigration Act 1965/63. Of relevance are paras. 81 and 82 of the said case:
[81] Article 4(1) cannot be invoked to strike down just any post-Merdeka B
law that is inconsistent with just any Article of the Federal Constitution.
The article that the post-Merdeka law is inconsistent with must relate to
the relevant subject matter and Legislative scheme of the impugned law
if the law is to be declared void under art. 4(1). To illustrate the point,
a law passed by parliament that is inconsistent with the right to life and
C
personal liberty under art. 5(1) cannot be declared void under art. 4(1) for
being inconsistent with the right to free speech and freedom of expression
under art. 10(1). If at all it must be declared void, it is to be declared void
under art. 4(1) for being inconsistent with art. 5(1) and not with art. 10(1).
That, of course, is to state the obvious. In the present appeal, the
appellant’s complaint really is about her right to travel under art. 5(1) but
D
she has conflated the issue with an alleged breach of her right to freedom
of expression under art. 10(1).
[82] Likewise, art. 4(1) cannot be invoked to strike down any law that is
inconsistent with itself as the article does not operate by itself and on its
own. It must be read in conjunction with any other relevant article of the
Federal Constitution. Thus, if at all s. 59A of the Immigration Act is to E
be declared void, it is void not because it is inconsistent with art. 4(1) but
because it is inconsistent with art. 121(1).
[67] In our present context, apart from the appellants’ complaint that
s. 15B is ultra vires art. 121(1) of the FC, the argument also hinges on the issue
that s. 15B which was enacted by art. 149, which ousts the jurisdiction of the F
courts to perform judicial review is unconstitutional by virtue of art. 4(1) of
the FC. Article 4(1) cannot be invoked to strike down any law that is
inconsistent with itself because the article does not operate by itself and on
its own. It must be read in conjunction with any other relevant article of the
Federal Constitution. G
Presumption Of Constitutionality
[68] The construction of art. 4 is premised on the strong presumption of
constitutionality of the law (refer to Salleh Abas in Dato’ Yap Peng, Ooi Kean
Thong & Anor v. PP [2006] 2 CLJ 701; PP v. Pung Chen Choon [1994] 1 LNS
208; [1994] 1 MLJ 566; PP v. Su Liang Yu [1976] 1 LNS 113; [1976] 2 MLJ H
128). Hence the burden lies on the party to prove to the contrary.
[69] The presumption of constitutionality is a manifestation of judicial
deference in striking down laws passed by Parliament or to impugn
Executive action insofar as the exercise of constitutionally derived powers
I
are concerned. The burden lies on the party seeking to impugn the relevant
laws as to its constitutional validity.

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 53

A [70] The rationale for the presumption, which was described as a “strong”
one, was explained in PP v. Su Liang Yu [1976] 1 LNS 113; [1976] 2 MLJ
128 where Hashim Yeop Sani J expressed his views on the issue of
constitutional validity of an impugned law at p. 131 (MLJ):
(8) It must be presumed that the Legislature understands and correctly
B appreciates the need of its own people and that its laws are directed to
problems made manifests by experience and that its discriminations are
based on adequate grounds provided however that while good faith and
knowledge of the existing conditions on the part of the Legislature are
to be presumed, if there is nothing on the face of the law or the
surrounding circumstances on which the classification may be reasonably
C
be regarded as based, the presumption of constitutionality cannot be
carried to the extent of holding that there must be some undisclosed and
unknown reasons for the discrimination.
[71] This principle is reflected by MP Jain in his book “Indian
Constitutional Law” at p. 1641:
D
The courts generally lean towards the constitutionality of a statute upon
the premise that a Legislature appreciates and understands the needs of
the people, that it knows what is good or bad for them, that the laws it
enacts are directed to problems which are made manifest by experience,
that the elected representatives in a Legislature enact laws which they
E consider to be reasonable for the purposes for which these laws are
enacted and that a Legislature would not deliberately flout a constitutional
safeguard or right. The Legislature composed as it is of elected representatives of the
people and what is good or bad for them and that a court cannot sit in judgment
over the wisdom of the Legislature. Therefore, usually, the presumption is in
favour of the constitutionality of the statute, and the onus to prove that
F it is unconstitutional lies upon the person who challenges it.
(emphasis added)
[72] This court in Danaharta Urus Sdn Bhd v. Kekatong Sdn Bhd [2004]
1 CLJ 701; [2004] 2 MLJ 257 held that a court should presume the
G constitutionality of any Legislature (when it is called upon to decide on the
constitutionality of a particular law challenged as being discriminatory and
violative of the equal protection of the laws) and derived support for such
proposition from the Supreme Court of India in Shri Ram Krishna Dalmia
& Ors v. Shri Justice SR Tendolkar & Ors AIR 1958 SC 538 when it held that:
H (1) ...
(2) ...
(3) It must be presumed that the Legislature understands and correctly
appreciates the needs of its own people, that the laws are directed
to problems made manifest by experience and that its
I discriminations are based on adequate grounds.
(4) The Legislature is free to recognise degrees of harm and may
confine its restrictions to those cases where the need is deemed to
be the clearest.

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54 Current Law Journal [2021] 4 CLJ

(5) ... A

(6) ...
[73] Azahar Mohamed CJM in delivering the majority judgment in
Letitia Bosman v. PP & Other Appeals [2020] 8 CLJ 147; [2020] MLJU 1186
(Letitia Bosman) held that: B
... 3 and no. 4 (as stated in Shri Ram Krishna Dalmia & Ors v. Shri Justice
SR Tendolkar & Ors) are of critical importance ... This is sometimes
described as judicial deference that the court should accord to the
judgment of the democratically elected Legislature on matters that is
placed within the domain of the Legislature. To be more precise,
Legislative decisions are entitled to an appropriate measure of deference C
and respect. It basically means courts attach proper weight to the views
and policies adopted by parliament.
(emphasis added)
His Lordship sets out the cases relating to judicial deference to D
constitutionality of laws enacted by Parliament and the principles relating
therein, in which His Lordship referred to “De Smith’s Judicial Review” at
pp. 11-004 of which two points stand out:
first it is an elementary point that judicial deference is not the same as
non-justiciability. As we have seen earlier at [17], in accordance with the E
supremacy clause, courts have a vital role to play in determining the laws
passed by parliament is consistent with the FC. For instance, where a
matter is clearly unlawful; the question of judicial deference “simply does
not arise”, and the court will so decide ... secondly, while it is one thing
to say that court will give weight to the decision of Parliament, it is quite
another to say Parliament decision may not be scrutinised by the court F
at all. In this context, I entirely agree with the observation of Justice
Mc-Laclin of the Supreme Court of Canada in RJR Mac Donald v. Att-Gen
(Canada) [1995] 3 SCR 199 on the limits of judicial defence:
care must be taken not to extend the notion of deference too far
... . Parliament has its role: to choose the appropriate response to
G
social problems within the limiting framework of the Constitution.
But the courts also have a role: to determine, objectively and
impartially, whether Parliament’s choice falls within the limiting
framework of the Constitution. The courts are no more permitted
to abdicate their responsibility than is Parliament. To carry judicial
deference to the point of accepting Parliament’s view simply on the H
view that the problem is so serious and the solution difficult,
would be to diminish the role of the courts in the constitutional
process and to weaken the structure of rights upon which our
Constitution and nation is founded.
[74] The Court of Appeal of Singapore in PP v. Taw Cheng Kong [1998]
I
SGCA 37 (citing the Malaysian case of PP v. Su Liang Yu) dealt with the
manner in dealing with the presumption on the constitutionality of an
impugned statute:

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 55

A [T]he first duty of the court which is really a rule of common sense is to examine
the purpose and policy of the statute ... . In its approach to the problem the court
ought, prima facie, to lean in favour of constitutionality and should support the
legislation if it is possible to do so on any reasonable ground and it is for the party
who attacks the validity of the legislation to place all materials before the
court to show either the enactment or the exercise of the power under
B it is arbitrary and unsupportable. (emphasis added)
[75] Coming back to the purpose and the policy of POCA, as can be
discerned from the Hansard, it is to address the worrying rise in the crime
index, particularly in organised crimes or crimes by a substantial body of
persons (refer to paras. 27 and 28 of this judgment), which posed an adverse
C
effect on the economy of the country. Those were the surrounding
circumstances brought to the notice of the court in which the legislation was
based and those were the facts which could be conceived existing at the time
of legislation. These are reasonable grounds and the appellants have not
shown how is POCA or the exercise of the power under it, is arbitrary and
D unsupportable.
[76] In addition, when deciding on constitutional issues, the context in
which such issues arise may make it appropriate for the courts to give
particular weight to the views and policies adopted by the Legislature
(Lau Cheong v. HKSAR [2002] 2 HKLRD 612). There may be conflicting
E
decisions to be made by the Executive and the Legislature between the rights
of the individual and the demands of society. There may be areas of judgment
where the courts will defer on democratic basis, to the considered views of
the elected body or persons whose decision is said to be compatible with the
needs of society. Thus, a balance must be struck between the needs of the
F individual and society and “an inflexible standards must not be imposed on
the Legislature’s attempts to resolve the difficult and intransigent problems
with which society is faced when seeking to deal with serious crimes. It must
be remembered that questions of policy remain primarily the responsibility
of the Legislature.” (Attorney General v. Lee Kwong Kut [1993] AC 951).
G
[77] Hence distilling from the above authorities, the rationale for the
presumption of constitutionality is because Parliament is in a better situation
to decide on social policy matters rather than the courts. Parliament
represents the will of a democratically elected majority, hence their decision
ought to be accepted as legitimate. The courts, which are not elected from
H the will of the population, are in no position to determine on policy matters,
are tasked with resolving of disputes independent from the influence of the
media, popular public opinion or pressure groups in the analysis and
application of legal rules and principles and interpretation of legal texts.
Article 149 Of The FC
I
[78] The FC empowers Parliament to legislate in respect of preventive
detention. “Preventive detention” has not been defined in the FC or the
Interpretation Acts 1948 and 1967. Neither is there a universally accepted

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56 Current Law Journal [2021] 4 CLJ

definition of preventive detention. As the term connotes, “preventive A

detention” is the detention of a person with a view to preventing the person
from acting in any manner prejudicial to public order, it is necessary that that
person should be detained, or that it is necessary for the suppression of
violence or the prevention of crime involving violence that that person
should be detained. The word “public order” is not defined anywhere either, B
however, a most enlightening overview of the term was extensively
undertaken by Abdoolcader J in Re Application Of Tan Boon Liat @ Allen; Tan
Boon Liat v. Menteri Hal Ehwal Dalam Negeri, Malaysia & Ors [1976] 1 LNS
126; [1976] 2 MLJ 83, at pp. 86-87:
Public order ... is less decentralised and narrower concept than the C
ordinary maintenance of law and order, and maintenance of public order
entitles the Executive authority to take action to prevent subversion of
public order but not in aid of maintenance of law and order under
ordinary circumstances. I had occasion to refer to this distinction in my
judgment in Yeap Hock Seng v. The Minister for Home Affairs, Malaysia [1975]
2 MLJ 279, 282, 285 (at page 285) : D

“Public order” means the tranquility and security which every

person feels under the protection of the law, a breach of which is
an invasion of the protection which the law affords (Board of
Commissioners of Peace Officers Annuity and Benefit Fund v. Clay 102 S.E.
2d.575, 577). The American view on “public order” was well E
expressed in Cartewell v. Connecticut [1940] 310 U.S. 296, 308
(at p. 308) thus:
The offence known as breach of peace embraces a great variety
of conduct, destroying or menacing public order and
tranquillity. It includes not only violent acts and words likely F
to produce violent in others. No one would have the
hardihood to suggest that the principle of freedom of speech
sanctions incitement to riot ... when clear and present danger
of riot, disorder, interference with traffic upon public streets or
other immediate threat to public safety, peace or order appears,
the power of the State to prevent or punish is obvious. G
The expression “public order” is not defined anywhere but danger to
human life and safety and the disturbance of public tranquillity must
necessarily fall within the purview of the expression. It is used in the
generic sense and is not necessarily antithetical to disorder, and is wide
enough to include considerations of public safety within its signification
H
...
The Supreme Court of India held in Kanu Biswas v. State of West Bengal AIR
[1972] S.C. 1656 (at pp. 1658-9) that the test to be adopted in determining
whether an act affects law and order or public order is: Does it lead to
disturbance of the current life of the community so as to amount to
disturbance of the public order or does it affect merely an individual I
leaving the tranquillity of the society undisturbed? And again in Kishori
Mohan Bera v. State of West Bengal AIR [1972] S.C. 1749, 1752 that the true

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 57

A test is not the kind, but the potentiality of the act in question. Sk. Kedar
v. State of West Bengal AIR [1972] S.C. 1647 decided to the like effect that
in relation to public order the determinant factor is one of degree and the
extent of the reach of the act upon society and not merely the nature or
quality of the act ... .

B Abdoolcader J referred to the case of Israil Khan v. State of Assam AIR 1951
Assam 106 which pertained to the prevention of opium smuggling.
(The petitioner) therein was ordered to be extended from the province of
Assam for a period of three years under the Assam Opium Prohibition Act,
1947 on the ground that he was a habitual smuggler of opium. He challenged
C
the validity of the legislation in question on the ground that it infringed the
provisions of the Constitution of India guaranteeing his fundamental right of
freedom of movement. The High Court of Assam held that although the
externment provided for by the Act impaired the right guaranteed to all
citizens to move freely throughout the territory of India by art. 19(1)(d) of
the Indian Constitution, it was not invalid as that right was not absolute and
D
could be curtailed to the extent provided for in art. 19(5) which saves any
existing or future law imposing reasonable restrictions on the exercise of such
right in the interests of the general public.
Further at p. 87 (MLJ) paras. G-H of the same case:
E Public interest has many facets such as public order, public health, public
security or safety or public morals, and the decision in that case confirming
the validity of the statute in question must necessarily be grounded on
the basis of the maintenance of public order which would allow
restrictions to be imposed on the movement of habitual offenders, or
persons endangering harmony between different classes or sections of the
F community and generally for preventing any criminal act.
[79] Preventive detention is a form of crime control mechanism which is
fraught with controversy. Despite the many views for and against this
approach, it is a mechanism that is well-established and is common to all
systems of jurisprudence (Maung Hia Gyew v. Commissioner [1948] Burma
G
Law Reps 764, at p. 766 in Alan M Dershowitz, The Law of Dangerousness:
Some fictions about Predictions, 23 J Legal Educ 24 (1970)).
[80] Unlike the law on detention upon conviction of a crime or detention
during investigation of a crime, the laws on preventive detention are in a
H
separate classification altogether from the ordinary criminal laws. As the
word “prevention” assigned to it indicates that the detention is to avoid and
prevent the breach of law. This is as opposed to the ordinary detention which
is “reactive”, namely after the Commission of an offence, or is known as
punitive laws. The distinctive feature of the law in preventive detention
permits it to be treated separately from the ordinary criminal detention. The
I
nature of this type of law and how it is to be treated is as described by the
Supreme Court of India in Anukul Chandra Pradhan v. Union of India AIR
1997 SC 2814, where Verma CJ. I. stated that:

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58 Current Law Journal [2021] 4 CLJ

However, for the purpose of the present challenge, it is sufficient to say A

that preventive detention differs from imprisonment on conviction or
during investigation of the crime of an accused which permits separate
classification of the detenus under preventive detention. Preventive
detention is to prevent breach of law while imprisonment on conviction
or during investigations is subsequent to the Commission of the crime.
This distinction permits separate classification of a person subjected to B
preventive detention. (emphasis added)
Scheme Of POCA
[81] POCA which relates to preventive detention, and was enacted
pursuant to art. 149 of the FC, is to be treated separately from the general C
criminal law of detention promulgated under art. 74 of the FC. POCA is a
Federal law, which provides that any provision in any Act of Parliament
whose recital satisfies the same is valid notwithstanding that the provision
may be inconsistent with arts. 5, 9, 10 or 13 of the FC.
[82] In our present appeals, in the context of POCA, Parliament may D
restrict fundamental rights on grounds of public order and national security
premised on art. 149(1)(a) and (f) of the FC which provides that:
Legislation against subversion, action prejudicial to public order, etc.
149. (1) If an Act of Parliament recites that action has been taken or threatened by
E
any substantial body of persons, whether inside or outside the federation:
(a) to cause, or to cause a substantial number of citizens to fear,
organised violence against persons or property; or
(b) to excite disaffection against the Yang di-Pertuan Agong or any
Government in the Federation; or F
(c) to promote feelings of ill-will and hostility between different races
or other classes of the population likely to cause violence; or
(d) to procure the alteration, otherwise than by lawful means, of
anything by law established; or
G
(e) which is prejudicial to the maintenance or the functioning of any
supply or service to the public or any class of the public in the
Federation or any part thereof; or
(f) which is prejudicial to public order in, or the security of, the
federation or any part thereof,
H
(g)
(h) any provision of that law designed to stop or prevent that action is valid
notwithstanding that it is inconsistent with any of the provisions of art. 5, 9,
10 or 13, or would apart from this article be outside the Legislative power of
Parliament; and art. 79 shall not apply to a Bill for such an Act or any
I
amendment to such a Bill. (emphasis added)

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 59

A (2) A law containing such a recital as is mentioned in Clause (1) shall, if

not sooner repealed, ceased to have effect if resolutions are passed by
both Houses of Parliament annulling such law, but without prejudice to
anything previously done by virtue thereof or to the power of Parliament
to make a new law under this article.

B [83] The aforesaid article provides that Parliament may legislate in a

manner contrary to the fundamental liberties provisions of the FC if
Parliament believes that action has been taken or is being threatened to cause
any of the circumstances listed in items (a) to (f) of art. 149(1). In this respect,
it is pertinent to look at the preamble of POCA which states:
C An Act to provide for the more effectual prevention of crime throughout
Malaysia and for the control of criminals, members of secret societies,
terrorists and other undesirable persons, and for matters incidental
thereto.
WHEREAS action has been taken and further action is threatened by a substantial
D body of persons both inside and outside Malaysia to a cause, or to cause a substantial
number of citizens to fear, organised violence against persons or property.
AND WHEREAS Parliament considers it necessary to stop such action;
NOW THEREFORE, pursuant to Article 149 of the Federal
Constitution
E
IT IS ENACTED by the Parliament of Malaysia as follows: ..
(emphasis added)
[84] As the preamble of POCA states that it was enacted pursuant to
art. 149 of the Constitution, it validates laws passed notwithstanding that it
F is inconsistent with any of the provisions of arts. 5, 9, 10, and 13. Of concern
are the fundamental liberties provisions of art. 5 and art. 9. However
fundamental liberties although enshrined under the FC, are not absolute and
can be taken away by the passing of laws by the Legislature pursuant to
art. 149. That validly enacted law in our present context is s. 15B(1) of
G POCA which prohibits judicial review of the Board’s decision save and
except on procedural non-compliance.
[85] It is to be observed that there is a similarity in the preamble of POCA
and the desired objective as expressed in art. 149(1), in particular item (a)
thereof, namely, “action has been taken or threatened by a substantial body
H of persons both inside and outside Malaysia to cause a substantial number
of citizens to fear, organised violence against persons or property”.
[86] This is the additional condition which the FC expressly provides for,
that must be met before a piece of legislation which limits the rights of a
person, may be enacted. Thus, POCA satisfies this condition and it is a
I special law, of an entirely different Legislative regime relating to preventive
detention enacted pursuant to art. 149 FC. The Legislative scheme of s. 15B
of POCA is to limit the judicial review power of the High Courts to
procedural non-compliance by the decision maker.

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[87] It was argued by counsel for the appellants that art. 149 does not A
suspend or considered art. 4(1) and hence there is nothing in art. 149 of the
FC that insulates legislation enacted under it from being challenged on its
constitutionality under art. 4(1) of the FC.
[88] In this regard, it is our view that there is no single provision in the
B
FC that can claim superiority over the other provisions. Article 4(1) provides
for a declaratory provision of the FC being the supreme law of the Federation
and any legislation passed after Merdeka day which is inconsistent with the
FC is void. It provides for the challenge on Legislative competency and
validity and the manner of challenging it. To qualify or suspend the
application of art. 4 in art. 149 would run contrary to the very objective and C
purpose of art. 4, namely, the declaration of constitutional supremacy of the
FC. Article 4 cannot be suspended by any other article in the FC. Article 4
is unlike the provisions in arts. 5, 9, 10 or 13 which relate to fundamental
rights, which can be, and are suspended by art. 149. Article 149 therefore
stands on equal footing with other provisions in the FC. Article 149 is the D
power given to Parliament to enact laws which satisfies the requirement as
stated in paras. (1)(a)-(f). Article 4(1) is not to operate the way the appellants
suggest it to be.
[89] Nevertheless, any law passed under art. 149 of the FC is like any other
laws passed under arts. 74 or 76 in respect of any challenge of E
constitutionality. This is because of the doctrine of constitutional supremacy
provided under art. 4 of the FC (Ah Thian v. Government Of Malaysia). In the
present appeal, POCA is legislated under art. 149 and it is Federal law,
which validity is subject to challenge under art. 4, namely it is liable to be
struck out if it is inconsistent with the provision of the FC. F

[90] In the present appeal, an examination of the scheme of the POCA

allows the Board to:
(i) direct a registration of a person who is believed upon reasonable grounds
to be a member of the registrable categories as prescribed in the First
G
Schedule, if it is considered in the interest of public order or security
to do so (s. 12 of POCA);
(ii) make an order for police supervision if the Board is satisfied that it is
necessary that control and supervision be exercised over the registered
person with certain restrictions and conditions (s. 15 of POCA); H
(iii) make a detention order over the registered person if the Board is satisfied
that such detention is necessary in the interest of public order, public
security or prevention of crime (s. 19A of POCA);
(iv) make any other orders – for the removal of name from the Register
I
(s. 14 of POCA), for suspension of or revocation of detention order
(s. 19C of POCA), for revocation of any supervision order (s. 19C(3)),
for renewal of detention order (s. 19H(2)), for removal of a detainee
from any place of detention to another place of detention.

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 61

A [91] Hence from the scheme of POCA, it is a special law where its
underlying purpose or object bear significance in the interpretation of
preventive laws promulgated pursuant to art. 149. Article 149 affirms the
validity of legislation enacted against subversion, action prejudicial to public
order and the like. From the provisions of the FC and POCA the decision-
B makers in the substantive or factual matter of preventive detention, are the
Executive. In this respect, art. 151(3) of the FC is significant in which it
provides that:
This article does not require any authority to disclose facts whose
disclosure would in its opinion be against the national interest.
C
[92] Further, the provision of s. 21A of POCA (which is derived from
art. 151(3) of the FC) states:
Nothing in this Act ... shall require the Board, any member of the Board,
any Inquiry Officer or any public servant to disclose facts or to produce
documents which he considers:
D
(a) to be against the public interest to disclose or produce; or
(b) would compromise the protection of a witness, or his family or
associates.
[93] From the aforesaid, it appears that ss. 15B and 21A of POCA were
E crafted with art. 151(3) of the FC in mind. Both ss. 15B and 21A of POCA
were enacted to give effect to the purpose and objective of POCA, arts. 149
and 151(3) of the FC. Therefore, as ss. 15B and 21A of POCA emanated from
art. 149 of the FC and buttressed by art. 151(3) of the same, how could
s. 15B not be constitutional? Section 15B was enacted to amplify the
F emphasis on national interest under art. 151(3) of the FC. It is to be noted
that art. 151(3) of the FC was never challenged by the appellants.
[94] From the scheme of art. 151(3) of the FC, and s. 21A of POCA the
authority is bound not to disclose facts which would be against national
interest. The authority to decide what is public interest in our present appeal,
G would be the Executive who has the expertise.
[95] Therefore, in approaching the present appeals, the court must be
guided by the clear words of the FC and POCA, in this case art. 149,
art. 151(3) of the FC, s. 15B and s. 21A of POCA. We have discussed in the
preceding paras. 82-86 of this judgment, that it is within the province of the
H
Legislature in accordance to the powers given to it under art. 149 of the FC
to enact the impugned provision to address the mischief of national security.
It is also within the realm of the Legislature’s power to enact the impugned
provision which provide for limited judicial review.

I
[96] In this regard, we are reminded by the words of Lamin Mohd Yunus
PCA in Ketua Polis Negara & Anor v. Gan Bee Huat & Other Appeals [1998]
3 CLJ 1; [1998] 3 MLJ 86, where he referred to the judgment of Tun Suffian
LP when His Lordship delivered the judgment of the Federal Court in

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62 Current Law Journal [2021] 4 CLJ

PP v. Lau Kee Hoo [1983] 1 CLJ 21; [1983] CLJ (Rep) 336; [1983] 1 MLJ A
157, at p. 338 (CLJ); p. 159 (MLJ) on the constitutionality of the Internal
Security Act 1960:
The ISA is legislation against subversion expressly authorised by art. 149
of the Constitution. Mr. Karpal Singh conceded that the Act was
constitutional; that being so we cannot see how it can be said that the B
impugned section is invalid as being contrary to art. 5(1); because the
article itself expressly provides that any provision of law enacted under the
article is valid “notwithstanding that it is inconsistent with art. 5”.
Hence, one can see the stature that is being given to legislations promulgated
under art. 149 in that, laws enacted under the said article is constitutional C
despite it being inconsistent with certain articles of the FC.
[97] In the context of the present appeals, the impugned law is
constitutional as art. 149 (to be read with art. 151(3)), authorised it. The task
of the courts, as provided in art. 121(1) is to give full effect to what is
provided by Federal law, in this case, s. 15B of POCA which allows for D
limited judicial review. (Article 121(1) is being addressed at para. 107
onwards of this judgment)
[98] Hence, premised on the aforesaid, it cannot be said that by limiting the
courts’ power in s. 15B of POCA, the Legislature/Parliament has encroached
E
on the jurisdiction of the courts. It is the Legislature/Parliament that confers
the court that jurisdiction and power. As such, there is no usurpation of
judicial powers by the Legislature. The courts exercise its powers as
provided by POCA, a Federal law, which is precisely what art. 121(1) of the
FC provides.
F
[99] In addition, premised on Ah Thian v. Government Of Malaysia, and the
fact that the impugned legislation is a Federal law, it is incumbent on the
appellants to show that the impugned legislation is inconsistent with the
provision of the FC (premised on art. 4(1) of the FC). The appellants in their
submissions did not state under which provision of the FC is the impugned
G
section inconsistent with. The submissions merely state that it is
unconstitutional by virtue of art. 4(1) of the FC. As we said in the preceding
paras. 66, 67, 87 and 88, that is not how art. 4(1) operates.
[100] Therefore, in light of the foregoing, that:
(i) the FC under art. 149 empowers Parliament to legislate POCA of which H
s. 15B is part of it;
(ii) article 149 stands on equal footing with the other provisions of the FC;
(iii) article 4 relates to declaratory provision that the FC is the supreme law
of the land and provides for instances where legislations enacted by I
Parliament may be challenged. Article 4(1) will operate if s. 15B(1) of
POCA is inconsistent with any constitutional provisions that confer
legitimacy and force of law, namely art. 149 of the FC; and

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 63

A (iv) article 149 is not inconsistent with art. 4(1), as art. 149 is an
empowering provision to Parliament to legislate laws against subversion
and public order,
it cannot be said that s. 15B of POCA is inconsistent with art. 4(1).
B [101] Given the aforesaid, to conclude for point no. (i), s. 15B which limits
judicial review by the courts only on procedural non-compliance is not
unconstitutional by virtue of art. 4(1) of the FC.
Point (ii) And (iii):
(ii) Whether The Ouster Clause In Section 15B Of POCA Is An Attempt By
C
Parliament To Suppress Judicial Powers Given To The Courts As Provided Under
Article 121(1) Of The FC;
(iii) Whether s. 15B of POCA Encroaches On Judicial Power Thus Breaching The
Doctrine Of The Separation Of Powers Between The three Branches, Namely The
D Executive, Legislative And The Judiciary
[102] We will address points (ii) and (iii) together.
Article 121(1) Of The FC
[103] It was argued by the appellants that s. 15B of POCA is an attempt by
E Parliament to suppress judicial powers given to the courts as provided under
art. 121(1) of the FC.
[104] There is no definition of “judicial power” in the FC. Griffith CJ of
Australia interpreted the phrase in Huddard, Parker and Co Pty Ltd v. Moorhead
[1908] 8 CLR 330 to mean:
F
... the power which every sovereign authority must of necessity have to
decide controversies between its subjects or between itself and its subjects,
whether the rights relate to life, liberty or property. The exercise of this
power does not begin until some tribunal which has power to give a
binding and authoritative decision ... is called upon to take action.
G
[105] Abdoolcader SCJ in PP v. Dato’ Yap Peng [1987] 1 CLJ 550; [1987]
CLJ (Rep) 284; [1987] 2 MLJ 311, at p. 287 (CLJ); p. 317 (MLJ) (in the
majority judgment) broadly defined judicial power as:
... the power to examine questions submitted for determination with a
view to the pronouncement of an authoritative decision as to rights and
H liabilities of one or more parties. It is virtually impossible to formulate a
wholly exhaustive conceptual definition of that term, whether inclusive or
exclusive ...
[106] The appellants argued that the limitation of the exercise of judicial
power in s. 15B(1) of POCA is ultra vires art. 121(1) of the FC. It was argued
I that such limitation erodes judicial power, which under the FC vests solely
in the Judiciary. In our view, it is not so, for the following reasons.

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64 Current Law Journal [2021] 4 CLJ

[107] The jurisdictions and powers of the court are constitutionally provided A
under Part IX of the FC which housed art. 121(1) which provides:
Judicial power of the Federation
121. (1) There shall be two High Courts of co-ordinate jurisdiction and
status, namely:
B
(a) One in the States of Malaya, which shall be known as the High
Court in Malaya and shall have its principal registry at such place
in the States of Malaya as the Yang di-Pertuan Agong may
determine; and
(b) One in the States of Sabah and Sarawak, which shall be known as C
the High Court in Sabah and Sarawak and shall have its principal
registry at such place in the States of Sabah and Sarawak as the
Yang di-Pertuan Agong may determine;
(c) (Repealed).
and such inferior courts as may be provided by Federal law and the High D
Courts and inferior courts shall have such jurisdiction and powers as may
be conferred by or under Federal law ...
...
(1B) There shall be a court which shall be known as the Mahkamah
Rayuan (Court of Appeal) ... ., and the Court of Appeal shall have the E
following jurisdiction, that is to say:
(a) ...
(b) such other jurisdiction as may be conferred by or under Federal law.
(2) There shall be a court which shall be known as the Mahkamah F
Persekutuan (Federal Court) ..., and the Federal Court shall have the
following jurisdiction, that is to say:
(a) ...
(b) such other jurisdiction as may be conferred by or under Federal law.
(emphasis added) G

[108] As art. 121(1) of the FC now stands, “judicial power” depends on what
Federal law provides as was elucidated by the judgment of Tun Abdul Hamid
Mohamad PCA (as he then was) in PP v. Kok Wah Kuan [2007] 6 CLJ 341;
[2008] 1 MLJ 1:
H
[21] ... The extent of the powers of the courts depends on what is provided in the
Constitution. In the case of the two High Courts, they “shall have such jurisdiction
and powers as may be conferred by or under Federal law. ” So, we will have to
look at the Federal law to know the jurisdiction and powers of the courts.
(In the case of the Federal Court and the Court of Appeal, part of their
jurisdiction is specifically provided in the Constitution itself – see art. 121 I
(1B) and (2) respectively).

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 65

A [22] So, even if we say that judicial power still vests in the courts, in law the nature
and extent of the power depends on what the Constitution provides, not what some
political thinkers think “judicial power” is ... .That is the limit of judicial
power of the court imposed by law ... .
[109] Articles 121(1), 121(1B) and 121(2) use the word “conferred by
B Federal law”. The term “Federal law” is defined in art. 160 of the FC to
mean:
(i) any existing law relating to a matter with respect to which Parliament
has power to make laws, being a law continued in operation under
Part XIII; and
C
(ii) any Act of Parliament.
Those are the sources of “judicial power” as can be found in the provisions
of the FC, namely, judicial power is derived from Federal law.
[110] However, this court in Semenyih Jaya said that art. 121(1) of the FC
D
merely suggests the sources of power in which the High Courts derived its
powers and jurisdiction. It had embarked on defining judicial power under
art. 121(1) to extend well beyond than what is stated in the Federal laws and
held that:
[69] The narrow compass within which the Federal Court in Kok Wah
E
Kuan above approached art. 121(1) of the Federal Constitution suggests
that the provision merely identifies the sources from which the High
Courts derive their jurisdiction, namely from Federal law. Whilst it is correct
to say that the powers of the High Courts to adjudicate legal disputes are those which
have been conferred by Federal laws, in our view the legal implication of art. 121(1)
F extends well beyond that ... (emphasis added)
[111] A perusal of the reasoning in Semenyih Jaya on the meaning of judicial
power reveals that it substantially hinges on the application of the concept
of basic structure which was introduced in Sivarasa Rasiah when the Federal
Court stated that:
G [78] In the past, the apex court has consistently rejected Parliamentary
supremacy in giving its continuing endorsement and faint praise to the
Federal Court decision in Ah Thian v. Government of Malaysia ... in which
Tun Suffian ... said that:
The doctrine of Parliamentary supremacy does not apply in
H Malaysia. Here we have a written Constitution. The power of
Parliament and of state legislation in Malaysia is limited by the
Constitution and they cannot make any new law as they please.
[79] And again in another case, that of Sivarasa Rasiah v. Badan Peguam
Malaysia & Anor ... the Federal Court ... said at p 342 that:
I ... Further it is clear from the way in which the Federal
Constitution is constructed there are certain features that
constitute its basic fabric. Unless sanctioned by the Constitution

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66 Current Law Journal [2021] 4 CLJ

itself, any statute (including one amending the Constitution) that A

offends the basic structure may be struck down as unconstitutional.
Suffice to say that the rights guaranteed by part II which are
enforceable in the courts form part of the basic structure of the
Federal Constitution ... .
[80] Sivarasa made a clear departure from an earlier Federal Court B
decision of Loh Kooi Choon ... . which in effect concluded that as long as
an amendment to the Federal Constitution is effected in the manner
required by art. 159 of the Federal Constitution, that amendment was
effective regardless of its effect insofar as the basic structure of the
Constitution is concerned.
C
[81] Thus, Sivarasa made a frontal attack on Loh Kooi Choon where the
Federal Court in Sivarasa tersely observed that:
... the fundamental rights guaranteed under Part II is part of the basic
structure of the Constitution and that Parliament cannot enact laws
(including amending the Constitution) that violate the basic structure.
(emphasis added) D

...
[114] Our Federal Constitution affirms the polemic that judicial power is
exercisable by the judges sitting in a court of law; and that judicial process
is administered by them and no other.
E
(Paragraphs 176-201 of this judgment address the applicability of the basic
structure concept to our present appeals).
[112] Be that as it may, whatever has been said of art. 121(1) by the minority
judgment of Richard Malanjum CJSS in Kok Wah Kuan, the same has not
been struck down as being unconstitutional. Hence it is still valid and good F
law and it should be construed in accordance to what it says, given the
principles of statutory interpretation and clear constitutional provision, as to
do otherwise, would in the words of Abdoolcader SCJ in Foo Loke Ying
& Anor v. Television Broadcasts Ltd & Ors [1985] 1 CLJ 511; [1985] CLJ (Rep)
122; [1985] 2 MLJ 35, “amount to unwarranted transgression into the G
Legislative domain”.
[113] The various interpretation of the meaning of judicial power is found
in the lengthy judgment of the majority and the minority in JRI Resources
Sdn Bhd v. Kuwait Finance House (Malaysia) Bhd; President Of Association Of
Islamic Banking Institutions Malaysia & Anor (Interveners) [2019] 5 CLJ 569; H
[2019] 3 MLJ 561. We feel it futile to reproduce or repeat the line of
authorities on the meaning of judicial power for obviously, it is no easy feat
to attempt a formulation of a wholly exhaustive conceptual definition of this
terminology. The glaring difference lies between the idealist and the
pragmatist in their approach to defining judicial power. I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 67

A [114] This court in Semenyih Jaya was of the view that the 1988 amendment
had the effect of undermining the judicial power of the Judiciary and
impinges on the features of the FC, namely the doctrine of separation of
powers and the independence of the Judiciary. It further stated that “with the
removal of judicial power from the inherent jurisdiction of the Judiciary, that
B institution was effectively suborned to Parliament, with the implication that
Parliament became sovereign. The result was manifestly inconsistent with
the supremacy of the Federal Constitution enshrined in art. 4(1)”.
[115] However, we are of the view that the 1988 amendment to art. 121(1)
of the FC does not oust away judicial power of the courts. The deletion of
C the phrase “the judicial power of the Federation shall be vested in” does not
have the effect of taking away the inherent judicial power from courts. Where
there is a clear case of injustice being committed, the court is conferred with
inherent powers under r. 137 of the Rules of the Federal Court 1995 to hear
any application or to make any order as may be necessary to prevent injustice
D (Chia Yan Teck & Anor v. Ng Swee Keat & Anor [2001] 4 CLJ 61). There is
also O. 92 r. 4 of the Rules of Court 2012 (before 2012, it was Rules of the
High Court 1980) which according to Edgar Joseph Jr FCJ in R Rama
Chandran v. Industrial Court of Malaysia & Anor [1997] 1 CLJ 147; [1997] 1
MLJ 145 at p. 230 (CLJ); pp. 238 to 239 (MLJ) said:
E In my view, O. 92 r. 4 is a unique rule of court for while it neither defines
nor gives jurisdiction, yet it serves as a reminder and confirmation — lest
we forget – of the common law powers of the court, which are residuary
or reserve powers and a separate and distinct source of jurisdiction from
the statutory powers of the court.

F Order 92 r. 4 of the Rules of Court 2012 reads:

For the removal of doubts it is hereby declared that nothing in these rules
shall be deemed to limit or affect the inherent powers of the court to make
any order as may be necessary to prevent injustice or to prevent an abuse
of the process of the court.
G [116] This court in R Rama Chandran v. Industrial Court of Malaysia & Anor
[1997] 1 CLJ 147 was of the view that the High Courts would still have the
inherent powers similar to that of the High Courts in the United Kingdom
even in the absence of the said order. Edgar Joseph Jr FCJ’s reasoning is that
supervisory jurisdiction of the courts is the creature of common law and such
H inherent power may be extended through judicial development and
Legislative intervention as for instance para. 1 of the Schedule read with
s. 25 of the Courts of Judicature Act 1964.
[117] Although no explicit reference was made to the amended art. 121(1)
it is implicit from the judgment that the courts retain its inherent power
I notwithstanding the amendment.

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[118] In Megat Najmuddin Dato’ Seri (Dr) Megat Khas v. Bank Bumiputra A
Malaysia Bhd [2002] 1 CLJ 645; [2002] 1 MLJ 385 the Chief Judge for Sabah
and Sarawak in a majority judgment, (which cited Chia Yan Tek & Anor v. Ng
Swee Kiat & Anor as support) expressed his view that the inherent power of
the Federal Court has been preserved, firstly, by r. 137 of the Rules of the
Federal Court 1995 and secondly, by the application of the common law B
principle of inherent power of the court as envisaged by s. 3(1)(a) of the Civil
Law Act 1956 which reads:
(1) Save so far as other provision has been made or may hereafter be
made by any written law in force in Malaysia, the court shall:
(a) in Peninsular Malaysia or any part thereof, apply the common C
law of England and the rules of equity as administered in England
on the 7 April 1956;
[119] Despite the provisions of s. 25 Courts of Judicature Act 1964, O. 92
r. 4 Rules of Court 2012 and r. 137 of Rules of Federal Court 1995, one must
never lose sight of art. 4(1) of the FC which provides that it is FC which is D
the supreme law of the Federation (Sia Cheng Soon & Anor v. Tengku Ismail
Tengku Ibrahim [2008] 5 CLJ 201). In other words, in our present appeals,
such general inherent powers as stipulated under s. 25 Courts of Judicature
Act 1964, O. 92 r. 4 of the Rules of Court 2012 and r. 137 of Rules of the
Federal Court 1995 are subjected to art. 4(1) of the FC, which is the supreme E
law of the Federation and s. 15(1) of POCA which is a special law enacted
under art. 149.
[120] In addition, from the position taken by the Federal Court in cases such
as Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another Appeal
[2002] 4 CLJ 105 and R Ramachandran v. Industrial Court Of Malaysia & Anor, F
which essentially stated that “appellate review jurisdiction is solely a
creature of statute while supervisory review jurisdiction is the creature of the
common law and is available in the exercise of the courts’ inherent
jurisdiction but, ... its extent may be determined not merely by judicial
development but also by Legislative intervention ... Parliament may legislate G
on the extent and scope of judicial review in particular situations ...” which
means that supervisory review jurisdiction can be excluded by statutory
legislation if the words are unmistakably explicit. Hence we have the
provision of s. 15B(1) of POCA which explicitly excluded judicial review on
procedural non-compliance. H
[121] The court’s function as a court of law is to decide cases that came
before it in accordance with Federal law which is enforced at the material
time. In this respect, art. 121(1) of the FC is clear, in that it provides that
courts are established by law (including the FC) and court’s jurisdiction and
the source of powers are derived from Federal law. “Federal law” is defined I
by art. 160(2) to mean any Act of Parliament. Courts vis-à-vis judges do not
derive their power in a vacuum and neither can they create jurisdiction for

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 69

A themselves. This is for Parliament to decide via the passing of Federal law
when art. 121(1) states that “ ... and the High Courts and inferior courts shall
have jurisdiction and powers as may be conferred by or under Federal law”.
We had established that Parliament has the Legislative power to enact
Federal law in relation to preventive detention under art. 149. Section 15B
B of POCA is Federal law, and that is where the courts derived its power in
judicial review under POCA. This is premised on art. 121(1). The courts’
duty is to interpret what is provided in s. 15B. The powers of the courts
cannot be derived from some amorphous concepts or doctrines, more so
when such doctrines or concepts took root from a foreign country. Hence,
C
it is incorrect to state that s. 15B is an attempt by Parliament to suppress
constitutional powers given to the courts as provided under art. 121(1).
[122] The exercise of judicial power does not begin until and unless the
court is called upon to do so. Therefore the substratum of laws must first
exist before judicial authority comes into being. Such power exists because
D Parliament enact it to be so. Otherwise, the question of removing judicial
authority does not arise.
Separation Of Powers
[123] This leads us to the point (iii), namely, whether s. 15B encroaches on
power of judicial review of the courts thus breaching the separation of powers
E
between the Executive, Legislative and the Judiciary. This proposition by
the appellants is grounded on the doctrine of separation of powers and
independence of Judiciary which are regarded as the basic structure of our
FC.
F [124] Traditionally, the concept of judicial power encompasses the
supervisory jurisdiction of the courts, as a check and balance mechanism in
ensuring the Executive and the Legislature act in accordance with law.
Hence, the power to exercise judicial review by the courts is crucial.
[125] No doubt, the doctrine of separation of powers and the independence
G of Judiciary are both universal values, sacrosanct in a democratic society.
However, we must also be reminded that in the context of our constitutional
structure, based on the Westminster model, there are certain overlapping of
functions and powers of the three branches of Government so as to say there
exists a lesser degree of separation. Under the Westminster model of
H Government the separation does not fully exists. Although it lends its
existence to the three branches, however the Ministers are both Executives
and legislators. Our written FC, has the features of separation of powers, but
at the same time, it has features which do not strictly comply with the
doctrine. Relevant to this issue, Tun Abdul Hamid Mohamad PCA (as he
then was) in Kok Wah Kuan explained as follows:
I
[17] In other words we have our own model. Our Constitution does have
the features of the separation of powers and at the same time, it contains
features which do not strictly comply with the doctrine. To what extent

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70 Current Law Journal [2021] 4 CLJ

the doctrine applies depends on the provisions of the Constitution. A A

provision of the Constitution cannot be struck out on the ground that
that it contravenes the doctrine. Similarly no provision of the law may be
struck out as unconstitutional if it is not inconsistent with the
Constitution, even though it may be inconsistent with the doctrine. The
doctrine is not a provision of the Malaysian Constitution even though no
doubt, it had influenced the framers of the Malaysian Constitution, just B
like democracy. The Constitution provides for elections, which is a
democratic process. That does not make democracy a provision of the
Constitution in that where any law is undemocratic it is inconsistent with
the Constitution and therefore void.
[126] Richard Malanjum CJ in JRI Resources, while acknowledging the non- C
rigid separation of powers, subscribed to the strict view of separation of
powers between the Judiciary on the one hand and the overlapping between
the Executive and Legislative on the other. In other words, there is no such
overlapping between the Judiciary and the other two branches.
[127] Azahar Mohamed FCJ (as he then was) who formed the majority in D
JRI Resources on the other hand acknowledged the overlapping of powers
between the three branches. The existence of tribunals by statute exercising
quasi-judicial power is an example of the absence of absolute separation of
power as alleged. This is what His Lordship stated in JRI Resources:
E
It is also worth emphasizing that our Federal Constitution is grounded
on the Westminster system of parliamentary Government under which
the sovereign power of the State is distributed among three branches of
Government, viz, Legislature, the Executive and the Judiciary ... It has
been said that for one branch of the Government to usurp the rightful
authority and power of another is to undermine doctrine of separation of F
powers. Having said that, I note at the same time that the doctrine
recognises that, where necessary, one branch of the Government should
be allowed to exercise part of the powers of another branch and the
delegation of power by one branch of the Government to another. This
point is made by Professor Dr Shad Saleem Faruqi in Document of Destiny,
The Constitution of the Federation of Malaysia, with the necessary emphasis, G
at p. 48:
It is wrong to suggest that the powers of the state are neatly
divisible into three categories. The truth is that each of the three
functions of Government contains elements of the other two and
that any attempt rigidly to define and separate these functions
H
must either fail or cause serious inefficiency in Government ...
Under the conditions prevailing at this time, it would be highly
inconvenient and unworkable to insist on a rigorous separation of
powers. For example, due to a lack of time and expertise,
Parliament is not able to frame each and every law which governs
the citizen. Quite often, it delegates its Legislative power to I
members of the Executive who then frame rules and regulations
on its behalf. Such framing of legislation by an authority other

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 71

A than Parliament, on parliamentary delegation, is called subsidiary

or delegated legislation. It is a power unmistakably Legislative
(because it relates to the making of laws) yet it is exercised by a
delegate belonging to either the Executive or judicial branch ...
Similarly, the courts today have a backlog of cases. If all income tax and
industrial disputes were to be heard in the first instance by the ordinary courts
B of the land, the administration of justice will be even slower than it is today
and the system may get choked up. Administrative tribunals like income tax
tribunals or labour tribunals are created by Parliament to decide on disputes
in their specialized fields. Administrative tribunals are mostly composed of
legally trained persons who are not judges of the courts, yet they perform a
judicial function. They are, therefore, called quasi-judicial bodies-partly
C
judicial, partly administrative ...
In commenting on the version of strict of powers by Montesquieu,
Professor Dr Shad Saleem Faruqi in his latest book, Our Constitution,
published in 2019 explained at p. 62, that “the Executive, Legislative and
judicial functions are overlapping and cannot be separated in a water-tight way. Nor
D should they be rigidly separated”. (emphasis added)
[128] Undeniably, we do have administrative tribunals who are not judges
of the courts, yet they perform a judicial function. These are tribunals created
by Parliament deciding on areas like housing, income tax, consumerism,
industrial disputes and these tribunals’ powers and jurisdictions are defined
E by Federal law. If we are to apply the argument of the appellants that
encroachment on judicial power amounts to breaching the doctrine of
separation of powers, these tribunals are equally unconstitutional. However,
that cannot be so, simply because in our system of Government, the absolute
demarcation of what constitutes an encroachment to judicial power is not
F always easy to draw the line. Nevertheless, our courts have been consistent
that there are certain areas which are either non-justiciable or which are not
suitable or amenable for the court to adjudicate on. This means, the nature
of the subject matter in question shall be one of the determining factors.
[129] Ascertainment of Islamic law for the purposes of the Islamic financial
G business is one of the areas as was decided in JRI Resources. Other matters
which the court is reluctant to delve into, include the power of the State to
enter into treaties and conduct of foreign policy, the defence of the realm and
the control of the armed forces, the prerogative of mercy, the dissolution of
Parliament and the appointment of Ministers. Such powers are governed by
H broader policy considerations which are more appropriately entrusted to the
political branches of Government, and which are unsuited to be examined
by the courts (Peguam Negara Malaysia v. Chin Chee Kow & Another Appeal
[2019] 4 CLJ 561; [2019] 3 MLJ 443).
[130] In this respect, we find support in Liyanage & Others v. The Queen
I [1967] 1 AC 259, a case referred to, in Semenyih Jaya, Indira Gandhi and
JRI Resources, where Lord Pearce in delivering the judgment of the Privy
Council, said that:

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72 Current Law Journal [2021] 4 CLJ

Each case must be decided in the light of its own facts and circumstances, A
including the true purpose of the legislation, the situation to which it was
directed, the existence (where several enactments are impugned) of a
common design, and the extent to which the legislation affects, by way
of direction or restriction, the discretion or judgment of the Judiciary in
specific proceedings. It is therefore necessary to consider more closely the
nature of the legislation challenged in this appeal. B

[131] The appellants relied on the principle of separation of powers that it

is the court that carries out the function of judicial review of any decision
of the Board, and since that power is taken by the Legislature via s. 15B, that
particular provision is therefore unconstitutional.
C
[132] In determining whether there has been an encroachment by the
Legislature in enacting the impugned provision, we are guided by the clear
provisions of the FC and the provisions of POCA (as per judgment of Salleh
Abas LP in Theresa Lim Chin Chin at p. 295 (MLJ) where in the context of
ISA laws) that: D
... we must approach these appeals in the broad principles of the
constitutional provisions and also the provisions of the ISA and in
particular to those relating to preventive detention. We accept the
approach to the legality and constitutionality of the ISA as so admirably
and cogently stated by Lord Diplock in Teh Cheng Poh v. Public Prosecutor,
and that is: we have to be guided by clear words of the Constitution and E
the statute ...
... .The broad and practical approach that we take in this matter is to see
the scheme of the legislation both under the Constitution and the ISA.
There can be no doubt that the ISA is a special law, however unpopular
it may be, passed under the authority of art. 149. (emphasis added) F

[133] Separation of powers is within the system and very much alive. If each
branch is conscious and understands their respective role in discharging their
role responsibly, there should not be any fear of power abuse or infringement
of rights of the citizen. In as much as it is the function of the Judiciary to
interpret laws, it is also as much a function of the Legislature to pass laws, G
so long as it adheres to the manner as stipulated under art. 159 of the FC.
In Theresa Lim Chin Chin, Salleh Abas LP held at p. 298 (MLJ) that:
In the circumstance of the case, having regard to the grounds we have
set out earlier, the appeals should be dismissed. But we are not unmindful
of our grave responsibility to be between the Executive and citizens. We H
would like to reiterate that we do not abdicate our function and shy away
from our responsibilities. It would be very much to be regretted and
indeed it would be most unfortunate if the results of these appeals were
to be understood as an abdication of our duties. This misunderstanding
may arise in view of so many recent adverse comments against the
I
Judiciary and the legal system of this country. The court must be neutral
and independent. When the law is clear, we must declare what the law
is.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 73

A In a proceeding like the present one where both the legislation and the
Executive act under it are challenged, our duties are not to substitute our
decision for that of the Executive. We are only concerned with the
procedural aspects of the exercise of the Executive discretion. We have
no interest, nor desire, to embark upon trespassing into the domains of
the Legislature or the Executive. In a democratic society in which the
B Government is not absolute but a limited one, there is a duty on the part
of the Executive to act with fairness and follow a fair procedure. Since
in these appeals, the law is clear, despite the fact that it is much criticised
both at home and abroad, our decision cannot be otherwise than what
we have said earlier. We made this observation because we feel that we
owe a duty to the public to put our position on record in view of so many
C
adverse comments made against us. (emphasis added)
[134] Hence the test of constitutionality to be devised by the courts in
deciding whether an impugned provision is constitutional or not and in
determining “to what extent the doctrine (of separation of powers) applies
depends on the provision of the Constitution ... .[No] provision of the law
D
may be struck out as unconstitutional if it is not inconsistent with the FC,
even though it may be inconsistent with the doctrine. As Raja Azlan Shah
FJ (as His Royal Highness then was) quoting Frankfurter J said in Loh Kooi
Choon v. Government Of Malaysia [1975] 1 LNS 90; [1977] 2 MLJ 187 (FC)
said:
E
The ultimate touchstone of constitutionality is the Constitution itself and
not any general principle outside it.
Adopting the principles as aforesaid, by limiting judicial review to
procedural non-compliance by virtue of s. 15B of POCA, Parliament did not
F encroach onto the judicial powers of the court as it is within their power to
do so. The court in exercising such powers act according to what is
prescribed and limited by POCA, a Federal law. Section 15B is thus not
inconsistent with art. 121(1) of the FC.
[135] We hereby state that we do not find merit on the heavy reliance by
G the appellants on Semenyih Jaya in support of the proposition that limiting
of judicial review powers interferes with judicial function thus breaching the
doctrine of separation of powers. Semenyih Jaya clearly dealt with the powers
of assessors who sat with the High Court Judge in determining the
compensation for the compulsory acquisition of land. That clearly offends
H the separation of powers as the assessors who are non-judicial bodies
exercising judicial function. Thus Semenyih Jaya is not applicable to our
present case because the exercise of judicial power by virtue of s. 15B of
POCA is still with the court and no other body.
[136] Therefore the ouster clause as in s. 15B of POCA does not suppress
I constitutional powers given to the courts as provided under art. 121(1) of the
FC. Neither does it encroach on judicial power thus breaching the doctrine
of the separation of powers between the three branches, namely the

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74 Current Law Journal [2021] 4 CLJ

Executive, Legislative and the Judiciary. In any event it cannot be said that A
s. 15B of POCA is unconstitutional because it breached the doctrine of
separation of powers. It is unconstitutional, only if it is inconsistent with any
other provision of the FC (refer to art. 4(1)).
Ambit Of Judicial Review In Section 15B
B
[137] The House of Lords’ decision in Council of Civil Service Unions
v. Minister For The Civil Service [1985] AC 374 was referred to by the Supreme
Court in Inspector-General Of Police v. Tan Sri Raja Khalid Raja Harun [1988]
1 CLJ 39; [1988] 1 CLJ (Rep) 135; [1988] 1 MLJ 182, where Lord Scarman
who agreed with Lord Diplock in dismissing the appeal on the ground of
C
national security also made clear that:
the law relating to judicial review has reached the stage where it can be
said with confidence that if the subject matter in respect of which
prerogative power is exercised is justiciable, that is to say if it is a matter
upon which the court can adjudicate, the exercise of the power is subject
D
to review in accordance with the principles developed in respect of the
review of the exercise of statutory power.
The caveat is, if the subject matter is justiciable.
[138] Further, Lord Diplock stated that:
The reason why the Minister for the Civil Service decided on December E
22, 1983 to withdraw this benefit was in the interests of national security.
National security is the responsibility of the Executive Government; what action is
needed to protect its interest is, as the cases cited by my learned friend, Lord Roskill,
establish and common sense itself dictates, a matter upon which those upon whom
the responsibility rests, and not the courts of justice must have the last word. It is
F
par excellence a non-justiciable question. The judicial process is totally inept to deal
with the sort of problems which it involves. (emphasis added)
[139] In the matters of conflict between the rights of an individual against
the interest of the public, the latter takes priority. Lord Roskill in the said
case viewed that:
G
the conflict between private rights and the rights of the state is not novel
either in our political history or in our courts. Historically, at least since
1688, the courts have sought to present a barrier to inordinate claims by
the Executive. But they have also been obliged to recognise that in some fields that
barrier must be lowered and that on occasions, albeit with reluctance, the courts must
accept that the claims of Executive power must take precedence over those of the H
individual. One such field is that of national security. The courts have long shown
themselves sensitive to the assertion by the Executive that considerations of national
security must preclude judicial investigation of a particular individual grievance. But
even in that field the courts will not act on a mere assertion that questions
of national security were involved. Evidence is required that the decision
I
under challenge was in fact founded on those grounds. That that principle
exists is I think beyond doubt. In a famous passage in The Zamora [1916]
2 A.C. 77, 107 Lord Parker of Waddington, delivering the opinion of the
Judicial Committee said:

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 75

A Those who are responsible for the national security must be the
sole judges of what the national security requires. It would be
obviously undesirable that such matters should be made the
subject of evidence in a court of law or otherwise discussed in
public.

B The Judicial Committee were there asserting what I have already sought
to say, namely that some matters, of which national security is one, are not
amenable to the judicial process ... in Reg. v. Secretary of State for Home Affairs,
Ex parte Hosenball [1977] 1 W.L.R. 766 where the Court of Appeal and in
particular Lord Denning M.R., at p. 778, accepted that if the case had been
one “in which the ordinary rules of natural justice were to be observed,
C some criticism could be directed upon it” but held that the interests of
national security must override the appellants’ private rights and that
where compliance with the requirements of natural justice would itself
have revealed that which it was in the interests of national security not
to reveal, private rights must yield to the public interest.

D (emphasis added)
[140] This court has consistently held that judicial review on the decision of
the tribunals exercising similar functions to the Board should not be
questioned except on procedural non-compliance. Such discretion in
determining the substantive/policy matter by the Board is outside the reach
E of the courts. Suffian LP in Karam Singh v. Menteri Hal Ehwal Dalam Negeri
(Minister Of Home Affairs), Malaysia [1969] 1 LNS 65; [1969] 2 MLJ 129 has
the occasion to decide on the similar issue when His Lordship held at p. 151
(MLJ) that:
... it is not for a court of law to pronounce on the sufficiency, relevancy or otherwise
F of the allegations of fact furnished to him. The discretion whether or not the appellant
should be detained is placed in the hands of the Yang di-Pertuan Agong acting on
Cabinet advice. Whether or not the facts on which the order of detention is to be based
are sufficient or relevant, is a matter to be decided solely by the Executive. In making
their decision, they have complete discretion and it is not for a court of
law to question the sufficiency or relevance of these allegations of fact.
G (emphasis added)
Further at p. 153 (MLJ):
In any event it is not for the court to judge the vagueness, sufficiency or
relevance of the allegations of fact on which the order of detention is
based. It is for the Executive to do so.
H
Of worthy to note is what Gill FJ said in his judgment at p. 154 (MLJ):
There is ample authority for the proposition that it is not the function of the court
to act as a court of appeal from the discretionary decision of the Cabinet and to
inquire into the grounds upon which they came to the belief that it was necessary
I or desirable in the interests of the security of Malaysia to hold the appellant in
detention (see The King v. Secretary of State of Home Affairs, Ex parte Lees). As
was stated by Lord Atkinson in Rex v. Halliday, it must not be assumed that
the powers conferred upon the Executive by the statute will be abused. His Lordship
went on to say (at p. 275):

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76 Current Law Journal [2021] 4 CLJ

And as preventive justice proceeds upon the principle that a person A

should be restrained from doing something which, if free and
unfettered, it is reasonably probable he would do, it must
necessarily proceed in all cases, to some extent, on suspicion or
anticipation as distinct from proof.
With respect, I agree B
Ali FJ at p. 159 (MLJ) said that:
Lastly, there is also the appellant’s affidavit in which he categorically denies each
and every one of the allegations of fact and contends in each case that even if the
allegation is true, it cannot constitute a threat to the past or future security of
Malaysia. In this connection, I shall be content to say that in habeas corpus C
proceedings, such as this, the court is not concerned with the truthfulness or otherwise
of the allegations because the question whether it is necessary that a person be detained
under s. 8(1)(a) of the Internal Security Act 1960 is a matter for the personal or
subjective satisfaction of the Executive authority. Accordingly, no consideration
can be given to the appellant’s denial and no opinion need be expressed
on his contentions ... (emphasis added) D

[141] Allegations of fact in which the order for detention had been based on
alleged activities of the detenu and the satisfaction of the Executive being
subjective is not open for the court to examine as to the sufficiency of the
allegations. Allegations of facts deal with matters within the province of
E
national policy in relation to the security of the nation whereby the subjective
satisfaction of the Executive on those allegations cannot be substituted by an
objective test in a court of law. The Indian Supreme Court has succinctly
expressed its view on this precise issue on the detention order made under
s. 3 of the Indian Preventive Detention Act in State of Bombay v. Atma Ram
AIR 1951 SC 157 where Kania CJ held at p. 160 as follows: F

There may be a divergence of opinion as to whether certain grounds are

sufficient to bring about the satisfaction required by the section. One
person may think one way, another the other way. If, therefore, the
grounds on which it is stated that the Central Government or the State
Government was satisfied are such as a rational human being can G
consider connected in some manner with the objects which were to be
prevented from being attained, the question of satisfaction except on the
ground of mala fides cannot be challenged in a court. Whether in a particular
case the grounds are sufficient or not, according to the opinion of any person or body
other than the Central Government or the State Government, is ruled out by the
wording of the section. It is not open to the court to sit in the place of the Central H
Government or the State Government and try to determine if it would have come to
the same conclusion as the Central Government or the State Government. As has been
generally observed, this is a matter for the subjective decision of the Government and
that cannot be substituted by an objective test in a court of law.
(emphasis added) I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 77

A [142] Although our law differs from that of India as the order of detention
to be lawful in India it must be in “accordance with procedure established
by law” as opposed to our law which must be “in accordance with law”, the
principle as to judicial review on substantive matters as stated in the aforesaid
case is equally applicable to our situation. In fact, Gill FJ in Karam Singh,
B after going through the position in India and our local provisions of the law
came to the view at p. 151 (MLJ):
... in my opinion, it is not for a court of law to pronounce on the
sufficiency, relevancy or otherwise of the allegations of fact furnished to
him. The discretion whether or not the appellant should be detained is
C placed in the hands of the Yang di-Pertuan Agong acting on Cabinet
advice. Whether or not the facts on which the order of detention is to
be based are sufficient or relevant, is a matter to be decided solely by the
Executive. In making their decision, they have complete discretion and it
is not for a court of law to question the sufficiency or relevance of these
allegations of fact.
D
[143] The Supreme Court in PP v. Karpal Singh Ram Singh & Another Case
[1988] 2 CLJ 587; [1988] 1 CLJ (Rep) 249 at p. 253 held that what
constitutes national security is the province of the Executive and out of the
hands of the courts when it said:
Since The Zamora [1916] 2 AC 77 courts have come to accept that the best judge
E
of what national security is the authority which has the charge of security i.e the
Government. Lord Parker said in that case:
Those who are responsible for the national security must be the sole judges
of what the national security requires. It would be obviously undesirable that
such matters should be made the subject of evidence in a court of law or
F otherwise discussed in public. (emphasis added)
[144] The commonly accepted approach to judicial review is that the
reviewing court is only concerned with the decision-making process and not
with the substantive aspect or merits of the decision. Encik Najib Zakaria
referred us to Re Tan Boon Liat & Anor Et Al; Tan Boon Liat v. Menteri Hal
G
Ehwal Dalam Negeri & Ors And Others Appeals [1977] 1 LNS 110; [1977]
2 MLJ 108 where he submitted that the Federal Court held that ouster clause
cannot effectively oust the jurisdiction of court or support the illegality of the
decision of the court. However, that case was decided due to procedural non-
compliance by the Advisory Board not on the substantive merits. The
H appellant therein was detained under s. 4(1) of the Emergency (Public Order
and Prevention of Crime) Ordinance 5, 1969. There was a condition
precedent which needed to be satisfied, namely the Advisory Board must
have made recommendations on the representation made by the appellant to
the Yang di-Pertuan Agong for a further detention of the appellant. That
I condition precedent had not been satisfied and their continued detention was
therefore held to be unlawful as it was not in accordance with law which runs
contrary to art. 5 of the FC.

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78 Current Law Journal [2021] 4 CLJ

Ong Hock Sim FJ was of the view that where there has been a misconception A
as to the power to confirm under s. 6(2) which reads:
6. (2) Upon considering the recommendations of the Advisory Board
under this section the Yang di-Pertuan Agong may give the Minister such
directions, if any, as he shall think fit regarding the order made by the
Minister; and every decision of the Yang di-Pertuan Agong thereon shall, B
subject to the provisions of s. 7, shall be final, and shall not be called into
question in any court.
It is clearly incumbent on this court to rectify the error based on Anisminic
Ltd v. Foreign Compensation Commission [1969] 2 AC 147 at p. 208, per Lord
Wilberforce). The Anisminic’s case centers on the effect of an ouster clause C
under a subordinate legislation passed under s. 4(4) of the Foreign
Compensation Act 1950 which provided that the determination by the
Foreign Compensation Commission of any application made to them under
the Act shall not be called into question in any court of law. The significance
of the case is such that despite such an exclusion being clearly worded, the D
courts will hold that it does not preclude them from scrutinising the decision
on an error of law. Clearly Re Tan Boon Liat concerns non-compliance with
procedure, not on the facts, which does not support the appellants’ case.
[145] Be that as it may, this court in R Rama Chandran v. Industrial Court of
Malaysia & Anor [1997] 1 CLJ 147; [1997] 1 MLJ 145, has provided an E
exception to the general rule that the merits and correctness of the decision
of the decision-making body are forbidden territory. However, such
exception is not applicable in every case and it depends on each factual
matrix of the case as illustrated by this court in Petroliam Nasional Bhd v. Nik
Ramli Nik Hassan [2003] 4 CLJ 625; [2004] 2 MLJ 288 where it was held F
that although a reviewing judge might not have come to the same conclusion
from the established facts, a judge should exercise restraint and should not
disturb findings of fact unless it can be shown that the findings were based
on grounds of illegality or plain irrationality. The Federal Court in Ranjit
Kaur S Gopal Singh v. Hotel Excelsior (M) Sdn Bhd [2010] 8 CLJ 629; [2010]
G
6 MLJ echoed the same sentiment where it held that findings of facts based
on credibility of witnesses ought not to be disturbed unless they were
grounded on illegality or plain irrationality. But still, these cases dealt with
employment cases, nothing to do with art. 149 of the FC or preventive laws.
[146] Constitutional dimension was invoked into the judicial review realm H
in our jurisprudence when the Court of Appeal sought to introduce the
concept of “fairness” under art. 8(1) vide Tan Tek Seng v. Suruhanjaya
Perkhidmatan Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261. The
Court of Appeal held that the requirement of fairness in art. 8(1) read
together with art. 5(1) ensured not only procedural fairness but also a fair and
I
just punishment imposed. Although admittedly, the word of “substantive
fairness” was not used, the requirement of a fair and just punishment
indicates it to be an additional facet of fairness over and above procedural
fairness.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 79

A [147] Subsequently, the courts introduced the concept of the right of an

aggrieved party to have access to justice when it invoked cl. (1) of art. 5 of
the FC in Pihak Berkuasa Negeri Sabah v. Sugumar Balakrishnan & Another
Appeal [2002] 4 CLJ 105 (FC); [2002] 3 MLJ 72 (FC); [1998] 3 MLJ 289
(CA), when the Court of Appeal held that access to justice is a fundamental
B and constitutional right. It was also held that the right of a litigant to seek
redress from the court is part of one’s personal liberty within cl. (1) of art.
5 and it is not for Parliament to restrict that right. An ouster of jurisdiction
by an Act of Parliament would therefore be prima facie void and of no effect.
[148] In Sugumar Balakrishnan, the Court of Appeal adopted substantive
C fairness as a new ground of judicial review when Gopal Sri Ram JCA
(as he then was) included the same into the doctrine of fairness in art. 8.
His Lordship said at pp. 128 & 129 (CLJ); p. 323 (MLJ):
The result of the decision in Rama Chandran and the cases that have
followed it is that the duty to act fairly is recognised to comprise of two
D limbs: procedural fairness and substantive fairness. Procedural fairness
requires that when arriving at a decision, a public decision-maker must
adopt a fair procedure. The doctrine of substantive fairness requires a
public decision-maker to arrive at a reasonable decision and to ensure that
any punishment that he imposes is not disproportionate to the
wrongdoing complained of. It follows that if in arriving at a public law
E decision, the decision-maker metes out procedural fairness, the decision
may nevertheless be struck down if it is found to be unfair in substance.
[149] Sugumar Balakrishnan’s case relates to an ouster clause in s. 59A(1) of
the Immigration Act 1959/63 which reads:
F (1) There shall be no judicial review in any court of any act done or any
decision made by the Minister or the Director-General, or in the case of
an East Malaysian state, the State Authority, under this Act except in
regard to any question relating to compliance with any procedural
requirement of this Act or the regulations governing that act or decision.
Mr Sugumar had applied to the High Court for a writ of certiorari to quash
G
the decision of the Sabah State Government which revoked his entry permit
on grounds of morality. The High Court held that as far as the ouster clause
in s. 59A(1) of the Immigration Act 1959/63 is concerned, there is no
grounds for the courts to exercise judicial review of the Sabah Government’s
decision. Sugumar appealed to the Court of Appeal, which overruled the
H High Court and ordered that certiorari be issued to remove and quash the
cancellation against the respondent.
[150] However, the Federal Court reversed the decision of the Court of
Appeal in Sugumar Balakrishnan and struck down the doctrine of substantive
fairness. In arriving at its decision, the Federal Court referred to the judgment
I
of Edgar Joseph Jr FCJ in R Rama Chandran and held that:

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80 Current Law Journal [2021] 4 CLJ

... the Court of Appeal seems to introduce the doctrine of substantive A

fairness as a separate ground in its review of the administrative decision
of the State Authority under the Act by invoking art. 8(1) read together
with art. 5(1) of the Federal Constitution. The court also relied on
R. Rama Chandran.
In our view, parliament having excluded judicial review under the Act, it is not B
permissible for our courts to intervene and disturb statutorily unreviewable decision
on the basis of a new amorphous and wide ranging concept of substantive unfairness
as a separate ground of judicial review which even the English courts in common
law have not recognised ... As was stated by Edgar Joseph Jr. in R Rama
Chandran (supra) when he observed that courts can scrutinise decisions
not only for process, but also for substance, and he certainly was not C
putting forward a new head for judicial review ...
... we cannot agree with the Court of Appeal that the doctrine of
substantive fairness can be invoked as a separate or additional ground of
judicial review of an administrative decision. (emphasis added)
With regard to the Immigration Act 1959/1963 (then), Mohamed Dzaiddin D
FCJ in the same case held that:
By deliberately spelling out that there shall be no judicial review by the court
of any act or decision of the Minister or the decision-maker except for non-compliance
of any procedural requirement, Parliament must have intended that the section is
conclusive on the exclusion of judicial review under the Act. E

(emphasis added)
[151] The Court of Appeal again reaffirmed its stand that access to justice
is a fundamental right, this time grounded on art. 8(1) of the FC in Kekatong
Sdn Bhd v. Danaharta Urus Sdn Bhd [2003] 3 CLJ 378; [2003] 3 MLJ 1. The F
Court of Appeal was called to determine on the issue of the constitutionality
of s. 72 of the Pengurusan Danaharta Act 1998, which relates to a partial
ouster clause, which reads:
72. Notwithstanding any law, an order of a court cannot be granted-
(a) which stays, restrains or affects the powers of the Corporation, G
Oversight Committee, Special Administrator or Independent advisor
under this Act;
(b) which stays, restrains or affects any action taken, or proposed to be
taken, by the Corporation, Oversight Committee, Special
Administrator or Independent advisor under this Act; H
(c) which compels the Corporation, Oversight Committee, Special
Administrator or Independent advisor to do or perform any act,
and any such order, if granted, shall be void and unenforceable and shall
not be the subject of any process of execution whether for the purpose
of compelling obedience of the order or otherwise. I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 81

A The Court of Appeal held that the section was unconstitutional vis-à-vis
art. 8(1) of the FC as it violated the common law right of access to justice
which is an important component of the rule of law. The Court of Appeal
viewed this right as follows at p. 392 (CLJ); pp. 18 to 19 (MLJ) of the
judgment:
B We would sum up our view on this part as follows: (i) the expression
“Law” in art. 8(1) refers to a system of law that incorporates the
fundamental principles of natural justice of the common law: Ong Ah
Chuan v. Public Prosecutor; (ii) the doctrine of the rule of law which forms
part of common law demands minimum standards of substantive and
procedural fairness;
C
Pierson v. Secretary of State for the Home Department; (iii) access to
justice is part and parcel of the common law; R v. Secretary of State
for the Home Department, ex parte Leech; (iv) the expression “law” in
art. 8(1), by definition (contained in art. 160(2)) includes the
common law. Therefore access to justice is an integral part of
D art. 8(1)
[152] The Federal Court however, overruled the Court of Appeal and held
that the Court of Appeal had erred in interpreting art. 8(1) and art. 160(2)
of the FC. Article 160(2) authorises the reception of common law “in so far
as it is in operation in the Federation ...” which refers to a law that has
E already brought into operation the common law of England in the
Federation. That law is s. 3(1) of the Civil Law Act 1956 (“the CLA”),
which allows the reception of English common law subject to the
qualification that it may be lawfully modified in the future by any written
law. Federal Court held that art. 160(2) must be construed in the light of
F s. 3(1) of the CLA in that it may be modified when necessary. To that extent
it is qualified and not absolute.
[153] The word, “common law” in art. 160(2) FC is a reference to common
law and it is in that sense that the right must be incorporated into art. 8(1).
As the continued integration of the common law right of access to justice into
G art. 8(1) depends on any contrary provision that may be provided in any
written law as provided by s. 3(1) of the CLA, it cannot amount to a
guaranteed fundamental right.
[154] The Federal Court held that the right of access to justice must be
subject to rules and regulations that enable the exercise of that right, which
H may be varied from time to time, in particular art. 121(1) of the FC, which
confers jurisdiction to the High Court. The Federal Court further said that
arts. 8(1) and 121(1) complement each other, in that, art. 8(1) confers a
general right, whereas art. 121(1) confers powers on Parliament to set up an
institutionalised mechanism with the power and jurisdiction on the extent
I and manner in which that right is to be exercised. The Federal Court in its
judgment said:

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82 Current Law Journal [2021] 4 CLJ

The jurisdiction and power of the courts as provided by law is clearly the A
dominant element which determines the boundaries of access to justice.
Article 8(1) cannot therefore be read in isolation ... . The corollary is that
the manner and extent of the exercise of the right of access to justice is subject to and
circumscribed by the jurisdiction and powers of the court as provided by Federal Law.
(emphasis added)
B
[155] In applying the principle as aforesaid, this court held that s. 72 of the
Pengurusan Danaharta Act is a Federal law enacted by Parliament under the
authority and scope of art. 121(1) of the FC and is a written law within the
meaning of s. 3(1) of the CLA, which modifies the right of access to justice
as is permitted by the same. The right of access to justice integrated into
C
art. 8(1) must therefore be read in accordance to the modifications made.
[156] The Federal Court also overruled the Court of Appeal’s ruling on the
broad interpretation of art. 5 in Tan Tek Seng v. Suruhanjaya Perkhidmatan
Pendidikan & Anor [1996] 2 CLJ 771; [1996] 1 MLJ 261 when it held that
a generous reading of the term “personal liberty” in art. 5 was in error by D
justifying it as follows:
... we therefore disagree with the Court of Appeal that the words
“personal liberty” should be generously interpreted to include all those
facets that are an integral part of life itself and those matters which go
to form the quality of life ... . We agree with the learned State Attorney
E
General that the entry permit only allows the respondent to enter and
reside in Sabah, but ipso facto the entry permit does not confer any right
to livelihood to the respondent.
[157] Although the High Court and the Court of Appeal in Sugumar
Balakrishnan differed in their ultimate decision as to the effect of the ouster
F
clauses, both were in consensus, namely, in the context of habeas corpus
applications, where the scheme of the legislation deals with “preventive
detention”, the effect of ouster clause may be given different treatment. It has
been held that national security involves question of policy and that is within
the province of the Executive to determine. This can be discerned from the
judgment of the learned High Court Judge in Sugumar Balakrishnan when he G
held at p. 590 (CLJ); pp. 242 to 243 (MLJ):
It was also submitted that the present case is one which involves public policy,
national interest, public safety or national security and the court is therefore,
submitted learned counsel, entitled to carry out an objective examination of the factual
matrix presented to it to ascertain whether a reasonable tribunal similarly H
circumstanced would have come to the decision as the director did, ...
... As for the question of public policy, I am unable to agree that this case is not
concerned with it. It is very much so because it involves the manner in which a state
Executive or the state authority goes about overseeing immigration matters. It is
unthinkable for the court to venture into making decisions as to when and whom I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 83

A should be issued an entry permit as to when and why an entry permit should be
cancelled. Those are surely matters of policy which are best left to the executive ...
(emphasis added)
[158] Whilst the Court of Appeal speaking through Gopal Sri Ram JCA
(as he was then) acknowledged in the same case, at pp. 111 to 112 and 132
B (CLJ); p. 309 (MLJ) when His Lordship said:
... Nothing we have said thus far is to be taken as affecting cases that involve either
national security or national interest. It is obvious that special consideration must be
given to those cases as a matter of judicial policy (see for example, Theresa Lim
Chin Chin & Ors v. Inspector General of Police [1988] 1 LNS 132; [1988] 1 MLJ
C 293). In such cases, the court declines to intervene perhaps, on limited procedural
ground excepted by s. 59A because the subject matter in respect of which judicial
review is sought is one that is best left to the Executive arm of the Government to
deal with according to the exigencies of the particular case and based upon
information that is exclusively available to it. For reasons that will become apparent
later, the present instance is one that does not evidentially fall within these special
D categories of cases. (emphasis added)
...
(1) There are cases which by their very nature render it neither feasible nor desirable
to require public decision-maker to give reasons for his decision. These include cases
that concern national security, public safety or public interest. See Re Tan Sri Raja
E Khalid bin Raja Harun; Hong Leong Equipment Sdn Bhd v. Liew Fook Chuan.
[159] From the passages of the judgments of the High Court and the Court
of Appeal in Sugumar Balakrishnan the conclusion that can be drawn, is that,
ouster clause is effective in cases concerning national security and contingent
upon the determination of security policy which is the province of the
F
Executive. Although Gopal Sri Ram JCA (as he then was) rejected the High
Court Judge’s reasoning who considered Sugumar Balakrishnan is the kind of
cases concerning security in nature, both agreed that different treatment for
ouster clause is considered for cases concerning national interest, security
and public safety, namely that courts should not intervene on substantial
G merits except on procedural grounds as substantial merits of the case is one
that is best left to the Executive.
[160] Apart from Sugumar Balakrishnan, this court in a series of cases,
namely:
H (i) Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81;
(ii) Abdul Razak Baharudin & Ors v. Ketua Polis Negara & Ors And Another
Appeal [2005] 4 CLJ 445;
(iii) Ambiga Sreenevasan v. Director Of Immigration Sabah, Noor Alam Khan A
Wahid Khan & Ors [2017] 9 CLJ 205;
I
(iv) Pengusaha, Tempat Tahanan Perlindungan Kamunting, Taiping & Ors
v. Badrul Zaman PS Md Zakariah [2018] 8 CLJ 273;

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84 Current Law Journal [2021] 4 CLJ

(v) Chua Kian Voon v. Menteri Dalam Negeri Malaysia & Ors [2020] 1 CLJ A
747;
(vi) Salihudin Hj Ahmad Khalid & Ors v. Pendaftar Pertubuhan Malaysia & Anor
[2020] 2 CLJ 849,
had dealt with provisions of ouster clauses which were inserted in the B
relevant laws (as each of the aforesaid cases dealt with different security
preventive laws although the provisions are identical in its wordings) with
the intention to oust the court’s power to review all acts done or decision
made in the exercise of the Minister/Executive’s discretionary powers
except on non-compliance with any procedural requirements. It had been
C
decided in the aforesaid cases that those ouster clauses are constitutional.
[161] The reasoning from the aforesaid cases lies as follows: As for the
provision on fundamental liberties, there is the recognition of the need for
restriction by legislation in situation for the curtailment of subversion,
enacted under art. 149 of the FC or legislation to combat an emergency D
situation which may suspend all fundamental rights except freedom of
religion.
Clear And Explicit Provision As To The Ouster Clause
[162] Judicial review, can be excluded by an Act of Parliament, if it is
E
specifically provided for and the words used are clear and explicit. It also
forms the basic principle to be applied in interpreting a statutory provision,
(especially the impugned ouster clause) which is to apply the words and
phrases of the statute in their ordinary meaning. This is the first and most
elementary rule of construction. One “must adhere to the words of an Act
of Parliament, giving to them that sense which is their natural import ... ” F
(see the Federal Court case of Chin Choy & Ors v. Collector Of Stamp Duties
[1978] 1 LNS 26; [1979] 1 MLJ 69).
[163] It is also trite principle of law that a subject’s recourse to the court for
the determination of his rights is not to be excluded unless by clear and
G
express words (Pyx Granite Co Ltd v. Ministry of Housing and Local Government
And Others [1960] AC 260 as cited by Sugumar Balakrishnan), and there has
been a plethora of cases which support the view that where rights are taken
away by legislation, this should be done by clear explicit terms. In this
respect, the judgment of Lord Hoffman in R v. Secretary of State for the Home
Department ex parte Simms [2002] 2 AC 115 is relevant, although it does refer H
to a country with Parliamentary sovereignty:
Parliamentary sovereignty means that Parliament can, if it chooses,
legislate contrary to fundamental principles of human rights ... The
constraints upon its exercise by parliament are ultimately political, not
legal. But the principle of legality means that Parliament must squarely I
confront what it is doing and accept the political cost. Fundamental rights
cannot be overridden by general or ambiguous words. This is because

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 85

A there is too great a risk that the full implications of their unqualified
meaning may have passed unnoticed in the democratic process. In the
absence of express language or necessary implication to the contrary, the
courts therefore presume that even the most general words were intended
to be subject to the basic rights of the individual.

B [164] Parliament has engaged clear words in s. 15B(1) of POCA and the
provision had been drafted with precise clarity, that there shall be no judicial
review by the court of any act or decision by the Board in the exercise of
its discretionary power in accordance with the Act except for non-
compliance of any procedural requirement. Judicial review under the section
C
is defined to include proceedings instituted by way of a writ of habeas corpus.
Due to the clarity in the wordings in the said section, there is no doubt as
to the intention of the Legislature that the section is conclusive on the
exclusion of judicial review in habeas corpus cases under the Act.
[165] Such effect of the ouster clause in s. 15B(1) of POCA has excluded
D judicial review of the act of the Board save and except for procedural non-
compliance. It is not permissible for the court to intervene and disturb a
statutorily unreviewable decision after Parliament having excluded judicial
review. The intention of Parliament or of the Executive is revealed in the
Act of Parliament by the language used and the courts should carry out these
E
intentions. It is not the function of the judge to read something into the
provision which is not there. If he does so, he is indeed encroaching on the
function of the Legislature.
[166] The Supreme Court in Vengadasalam v. Khor Soon Weng & Ors [1985]
1 LNS 46; [1985] 2 MLJ 449 ruled that a court should not read words into
F an Act of Parliament unless clear reason for it is to be found within the four
corners of the Act itself. The Supreme Court stated:
We can see no justification for extending the ambit of s. 9(b) of the Act
and say any exercitation purporting to fill in textual details in a statute
on policy considerations would be, to reiterate what was said in Foo Loke
G Ying & Anor v. Television Broadcasts Ltd & Ors [1985] 2 MLJ 35, no less than
an unwarranted judicial transgression into the Legislative arena and an
attempt to obturate a statutory hiatus (if indeed there is any but we see
none in any event in this case) which is not a curial function. We would
in this regard also advert to the decision of the House of Lords in
Thompson v. Goold & Co [1910] AC 409, 420 where Lord Mersey said in
H his speech (at p. 420):
It is a strong thing to read into an Act of Parliament words which
are not there, and in the absence of clear necessity it is a wrong
thing to do.
Even more pertinent perhaps would be the speech of Lord Lorebum, L.C.,
I in Vickers, Sons and Maxim, Limited v. Evans [1910] AC 444, 445 when he
said (at p. 445):

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86 Current Law Journal [2021] 4 CLJ

My Lords, this appeal may serve to remind us of a truth sometimes A

forgotten, that this House sitting judicially does not sit for the
purpose of hearing appeals against Acts of Parliament, or of
providing by judicial construction what ought to be in an Act, but
simply of construing what the Act says. We are considering here
not what the Act ought to have said, but what it does say; ...
B
The appellants contention involves reading words into the
clause. The clause does not contain them; and we are not
entitled to read words into the Act of Parliament unless clear
reason for it is to be found within the four corners of the Act
itself.
C
[167] Steve Shim CJ (Sabah and Sarawak) in delivering the judgment of the
Federal Court in Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ
81 in dealing with the provisions of ss. 8B(1) and 8C of the ISA 1960
expressed the view that the court’s jurisdiction to review under those
provisions was ousted. The cardinal principle which was upheld is that
where the intention of Parliament is clearly expressed, the duty of the court D
is to give effect to that intention. The intention of Parliament is to be
garnered from the wordings of the ouster clause. Steve Shim CJSS referred
to R Rama Chandran v. Industrial Court Of Malaysia & Anor [1997] 1 CLJ 147
and said that appellate review jurisdiction is solely a creature of statute while
supervisory review jurisdiction is the creature of common law and is E
available in the exercise of court’s inherent power but, its extent may be
determined not merely by judicial development but also by Legislative
intervention. Hence Parliament may legislate on the extent and scope of
judicial review in a particular situation. It was held that the ouster clauses
in ss. 8B(1) and 8C restrict and limit the grounds upon which challenges to F
the Minister’s exercise of discretion could be premised. The exercise of the
Minister’s discretion in issuing orders for detention cannot be questioned in
courts of law except on the issue of non-compliance with the procedural
requirements. The ouster clauses were held to be constitutional.
[168] The ratio in Nasharuddin Nasir was adopted by this court in Abdul Razak G
Baharuddin & Ors v. Ketua Polis Negara & Ors And Another Appeal [2005] 4 CLJ
445 where it held:
The constitutionality and effect of those provisions had been considered
in Kerajaan Malaysia & 2 Ors v. Nasharuddin Nasir [2004] 1 CLJ 81. In brief,
this court had decided that s. 8B of the ISA was not unconstitutional and H
that the words of that section clearly excluded the court’s review
jurisdiction and that the court must give expression to parliament’s
intention.
[169] The Federal Court in the appeal of Pengusaha, Tempat Tahanan
Perlindungan Kamunting, Taiping & Ors v. Badrul Zaman PS Md Zakariah I
[2018] 8 CLJ 273 at p. 285 has this to say:

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 87

A [39] The sole point in considering question 1 is the legal effect to be given
to sub-s. 8B(1) and s. 8C of the ISA. It relates to the statutory
construction and interpretation of the provisions and the determination
of whether the wordings of those provisions effectively oust the
jurisdiction of the courts to deal with the respondent’s claim for false
imprisonment in the instant case and to award damages in respect of the
B claim.
[40] Judicial review, which is essentially a creature of the common law, can
be excluded by an Act of Parliament, if it is specifically provided for and the words
used are unmistakably explicit. On this issue, Steve Shim CJ (Sabah &
Sarawak) (delivering the judgment of the Federal Court) in Kerajaan
C Malaysia & Ors v. Nasharuddin Nasir [2004] 1 CLJ 81 in dealing with the
provisions of the same sub-s 8B(1) and s. 8C of the ISA, had expressed
the view that the court’s jurisdiction to review under those provisions was
ousted. The cardinal principle is that where the intention of Parliament is clearly
expressed, the duty of the court is to give effect to that intention. The intention of
Parliament is to be garnered from the wordings of the ouster clause.
D
...
[42] Subsection 8B(1) is clearly intended to exclude judicial review by the
court of any act done or any decision made by the Minister in the exercise
of his power in accordance with the ISA except as regards any question
on non-compliance with any procedural requirement relating to the act or
E decision in question. The words in sub-s 8B(1) are explicit, clear and
precise in ousting the jurisdiction of the courts.
[43] The ouster clauses in sub-s 8B(1) and s. 8C restrict and limit the
grounds upon which challenges to the Minister’s exercise of discretion
could be premised. The exercise of the Minister’s discretion in issuing
F orders for detention cannot be questioned in courts of law except on issue
of non-compliance with the procedural requirements. The ouster clauses
are not unconstitutional (see: Kerajaan Malaysia & Ors v. Nasharuddin Nasir
(supra))
[44] Subsection 8B(1) and s. 8C were incorporated into the ISA by the
G Internal Security ... (emphasis added)
[170] Adopting the views as aforementioned, the words in s. 15B of POCA
are plain and unambiguous, in that it expressly excluded judicial review of
the Board’s decision save and except in procedural non-compliance. Given
that s. 15B was enacted under art. 149 and that it has been drafted with
H prescience and perfect clarity, it is not the function of the court to give a
different meaning that was intended by the Legislature.
Policy Matters Not Within The Province Of The Courts
[171] We need to be reminded that a law although appears to be unjust or
I
unfair, is a matter touching on policy which is within the province of the
Legislature. In terrorism, gangsterism and gang-violence, syndicated crimes
or crimes involving a substantial body of persons, generally the laws

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88 Current Law Journal [2021] 4 CLJ

legislated are preventive in nature. The courts are never equipped with such A
knowledge and resource as to the extent of the incursion or threats to the
security of the country and the general masses, sufficient to make a
determination on the policy to be adopted in determining preventive
measures in security laws of the nation. We are referring to “preventive” and
not “reactive” action ought to be taken to address such risks of effect of B
terrorism and gang-violence on the public.
[172] How much or how serious are such threats are matters within the
Legislature and from their knowledge and resources available to them in
determining the policy to be devised to combat, control and regulate such
threats or activity with the objective of the laws in mind. Apart from such C
knowledge are not within the province of the courts, neither is it made
available to the courts. Hence what was said by Raja Azlan Shah FJ in
Loh Kooi Choon stood the test of time when His Lordship reminded the courts
as to its role and function that question of policy is to be debated and decided
by Parliament, when His Lordship in his judgment said: D
The question whether the impugned Act is “harsh and unjust” is a question of policy
to be debated and decided by Parliament, and therefore not meet for judicial
determination. To sustain it would cut very deeply into the very being of Parliament.
Our courts ought not to enter this political thicket, even in such a worthwhile cause
as the fundamental rights guaranteed by the Constitution, for as was said by Lord E
Macnaghten in Vacher & Sons Ltd v. London Society of Compositors [1913] AC
107 118:
Some people may think the policy of the Act unwise and even
dangerous to the community. Some may think it at variance with
principles which have long been held sacred. But a judicial tribunal
has nothing to do with the policy of any Act which it may be called F
upon to interpret. That may be a matter for private judgment. The
duty of the court, and its only duty, is to expound the language of the Act
in accordance with the settled rules of construction. It is, I apprehend, as
unwise as it is unprofitable to cavil at the policy of an Act of
Parliament, or to pass a covert censure on the Legislature.
G
It is the province of the courts to expound the law and “the law must be taken to
be as laid down by the courts, however much their decisions may be criticised by
writers of such great distinction” – per Roskill L.J. in Henry v. Geopresco
International Ltd [1975] 2 All ER 702, 718. Those who find fault with the
wisdom or expediency of the impugned Act, and with vexatious
interference of fundamental rights, normally must address themselves to H
the Legislature, and not the courts; they have their remedy at the ballot
box. (emphasis added)
[173] Gopal Sri Ram JCA (as he then was) sitting in the Supreme Court in
a unanimous decision in Kumpulan Perangsang Selangor Bhd v. Zaid Mohd Noh
[1997] 2 CLJ 11; [1997] 1 MLJ 789, at p. 25 (CLJ); p. 799 (MLJ) held that I
in judicial review:

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 89

A ... there may be cases in which, for reasons of public policy, national interest,
public safety or national security, it may be wholly inappropriate for the courts to
attempt any substitution of views. Unlike the Executive, the Judiciary is not armed
with all the information relevant to such matters and one could well understand a
High Court, in the exercise of its discretionary power, declining to enter into the merits
of a decision involving these considerations. Each case must be considered on
B its own facts and it would be quite unwise to attempt the formulation of
an all-embracing rule. (emphasis added)
[174] Section 15B of POCA was passed and had been exhaustively debated
by Members of the House and gone through the various stages of readings
before finally receiving the Royal Assent and it was approved with a
C particular objective in mind.
Point (iv):
Whether Section 15B of POCA Which Seek To Oust The Courts From Exercising
Its Rights Under Artice 4(1) Of The FC Contravenes That Very Article And To
D That Extent Contravenes The “Basic Structure” Of The FC
The Concept Of “Basic Structure”
[175] The concept of “basic structure” which was referred to, by the Federal
Court in Semenyih Jaya relied on the judgment of the Indian Supreme Court
E of Kesavananda Bharati v. State of Kerala AIR 1973 SC 1461. This decision of
the Supreme Court of India outlined the basic structure doctrine of the
Constitution of India, which asserted that the Constitution possesses a basic
structure of constitutional principles and values. The court partially
overruled the prior precedent of Golaknath v. State of Punjab [1967] AIR 1643,
[1967] SCR (2) 762 which held that constitutional amendments pursuant to
F
art. 368 (on the amendment of the Indian Constitution) were subject to
fundamental rights review, by asserting that only those amendments which
tend to affect the “basic structure of the Constitution” are subject to judicial
review. At the same time, the court also upheld the constitutionality of first
provision of art. 31C, which implied that any constitutional amendment
G seeking to implement the “Directive Principles of State Policy”, which does
not affect the “basic structure”, shall not be subjected to judicial review.
[176] Essentially, the effect of the judgment of Kesavananda Bharati is that
certain provisions which form the basic structure of the Indian Constitution
is not amenable to any amendment. The court will decide on a case by case
H
basis as to what amounts to/which provision of the Constitution forms the
basic structure, as there is no reference in the Constitution as to which
provisions constitute the “basic structure”. The courts will then apply the
basic structure principle as a basis to review and to strike down amendments
to the Constitution enacted by Parliament (which the court is of the view)
I seeks to alter the basic structure of the Constitution.

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90 Current Law Journal [2021] 4 CLJ

Concept Of “Basic Structure” Vis-a-vis In The Malaysian Context A

[177] Many jurisdictions embraced this basic structure concept in

incorporating in their interpretation of the provision of their Constitution,
and Malaysia through the decisions in Sivarasa Rasiah and Semenyih Jaya is
no exception in readily accepting and adopting such concept/doctrine. So
B
important is this concept that counsel for the appellants submitted that the
cases pre Semenyih Jaya that decided that ouster clauses like s. 15B POCA
are constitutional, are no longer applicable. Hence we feel the need to
explain this concept and its applicability in determining the constitutionality
of the laws passed by Parliament in the context of POCA.
C
[178] The basic structure concept as enunciated by Kesavananda Bharati is
nothing novel as far as the Malaysian jurisprudence is concerned, as it was
already considered and rejected by this court through the judgment of Raja
Azlan Shah FJ (as he then was) in Loh Kooi Choon. In delivering his
judgment, His Lordship had referred to the basic structure principle as
D
postulated by Kesavananda Bharati. His Lordship was not in favour of
adopting it when he held that:
Whatever may be said of other Constitutions, they are ultimately of little
assistance to us because our Constitution now stands in its own right and it is
in the end the wording of our Constitution itself that is to be interpreted and applied,
and this wording “can never be overridden by the extraneous principles of other E
Constitutions ” – see Adegbenro v. Akintola & Anor [1963] 3 All ER 544 551.
Each country frames its Constitution according to its genius and for the
good of its own society. We look at other Constitutions to learn from
their experiences, and from a desire to see how their progress and well-
being is ensured by their fundamental law.
F
...
It is therefore plain that the framers of our Constitution prudently realised
that future context of things and experience would need a change in the
Constitution, and they, accordingly, armed Parliament with “power of
formal amendment”. They must be taken to have intended that, while the G
Constitution must be as solid and permanent as we can make it, there is
no permanence in it. There should be a certain amount of flexibility so
as to allow the country’s growth. In any event, they must be taken to have
intended that it can be adapted to changing conditions, and that the
power of amendment is an essential means of adaptation. A Constitution
has to work not only in the environment in which it was drafted but also H
centuries later ...
There have also been strong arguments in support of a doctrine of implied
restrictions on the power of constitutional amendment. A short answer
to the fallacy of this doctrine is that it concedes to the court a more potent
power of constitutional amendment through judicial legislation than the
I
organ formally and clearly chosen by the Constitution for the exercise of
the amending power.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 91

A [179] Gopal Sri Ram FCJ (as he then was) in Sivarasa Rasiah rejected the
reasoning of Raja Azlan Shah FJ in Loh Kooi Choon as His Lordship referred
to Lord Macnaghten’s judgment in Vacher & Sons Ltd v. London Society of
Compositors [1913] AC 107 and said that His Lordship’s reliance on the said
case was misplaced because:
B ... the remarks were there made in the context of a country whose
Parliament is supreme. The argument has merit. As Suffian LP said in
Ah Thian v. Government of Malaysia [1976] 1 LNS 3; [1976] 2 MLJ 112:
The doctrine of the supremacy of Parliament does not apply in
Malaysia. Here we have a written Constitution. The power of
C Parliament and of State Legislatures in Malaysia is limited by the
Constitution, and they cannot make any law they please.
(emphasis added)
[180] However, we are of the view that what was said by Lord Macnaghten
in Vacher’s case, is valid even in the Malaysian context. It is not in dispute
D that the duty of the court is to expound the language of the law in accordance
with settled rules of construction. Policies of laws are certainly not within
the province of judicial tribunal, it is with the Executive. The remedy of the
fear that the Legislature may legislate laws which are “unreasonable”,
“unacceptable”, “cruel” or “harsh”, or that the wisdom of those in the
E Legislature are in question, lies in the ballot box, not in the courts being
creative and resourceful in amending the laws, for the simple reason that it
is not the function of the courts. Hence the words of Lord Macnaghten
“Those who find fault with the wisdom or expediency of the impugned Act,
and with vexatious interference of fundamental rights, normally must address
themselves to the Executives/Legislatures, and not the courts; they have
F
their remedy at the ballot box” rings true to its form to a large extent.
[181] Although the case of Sivarasa Rasiah had overruled Loh Kooi Choon, it
failed to consider the judgment of this court through the judgment of Suffian
LP in Phang Chin Hock whereby His Lordship had also considered
G Kesavananda Bharati’s basic structure doctrine and also rejected the doctrine
with its implied limitation on constitutional amendment due to the different
make up of the Indian Constitution and the FC. It is interesting to note that
Suffian LP did not place any reliance on the Vacher’s case and yet he arrived
at the same conclusion as Raja Azlan Shah FJ in Loh Kooi Choon.
H [182] Suffian LP in Phang Chin Hock explained explicitly and in detail as to
why the basic structure doctrine may be applicable to a Constitution like
India which has been made by “a Constituent Assembly” set up under the
Indian Independence Act 1947. We need not repeat it here.
[183] Suffian LP further reiterated that the “Directive Principles of State
I Policy” of the Indian Constitution “are the moral ends to be served by the
Government.” There is no such explicit statement of principles in the FC.
It was said that the Constituent Assembly’s preamble and the directive

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92 Current Law Journal [2021] 4 CLJ

principles contain “ideas and philosophies animating the Indian Constitution A

and controlling its interpretation so much so that there are limits on the
power of the Indian Parliament to amend the Constitution. Whereas in
Malaysia, this is not the case with the FC, therefore there is no inherent
limitation on the extent to which the FC may be amended.
B
[184] Thus Suffian LP agreed with the observations made by Raja Azlan
Shah FJ in Loh Kooi Choon on the inapplicability of adopting the basic
structure principle as there are differences in the make-up of the Indian and
the Malaysian Constitutions and His Lordship held that:
Considering the differences in the making of the Indian and our
C
Constitutions, in our judgment it cannot be said that our Parliament’s
power to amend our Constitution is limited in the same way as the Indian
Parliament’s power to amend the Indian Constitution.
[185] Apart from the case of Kesavananda Bharati, the Federal Court in Phang
Chin Hock considered several other Indian cases on the issue of the basic
D
structure doctrine namely, Shankari Prasad Singh Deo And Others v. The Union
of India And Others AIR [1951] SC 458; Sajjan Singh v. State of Rajasthan AIR
[1965] SC 845; IC Golak Nath & Ors v. State of Punjab [1967] 2 SCR 762; AIR
[1967] SC 1643 before deciding that the basic structure principle is
inapplicable in the Malaysian context.
E
[186] Singapore, through Teo Soh Lung v. Minister for Home Affairs And Ors
[1989] 2 MLJ 449 echoed what was held in Loh Kooi Choon and Phang Chin
Hock with regards to the inapplicability of adopting the basic structure
doctrine when it held that:
(8) If the framers of the Singapore Constitution had intended limitations F
on the power of amendment, they would have expressly provided for such
limitations but art. 5 has no such limitation.
(9) If the courts have the power to impose limitations on the Legislature’s
power of constitutional amendments, they would be usurping
Parliament’s Legislative function contrary to art 58 of the Constitution.
G
(10) The Kesavananda AIR [1973] SC 1461 doctrine (That there were basic
features of the Constitution that parliament could not amend) is not
applicable to the local Constitution. Considering the differences in the
making of the Indian and the local Constitution, it cannot be said that
our Parliament’s power to amend our Constitution is limited in the same
way as the Indian Parliament’s power to amend their Constitution. H
(emphasis added)
[187] In India, the period following Kesavananda Bharati was one when the
doctrine evolved on a case by case basis resulting in a gradual expansion of
the doctrine. It was only in subsequent cases pioneered by Indira Ghandi
v. Raj Narain AIR 1975 SC 2299 that the courts began formulating a cohesive I
doctrine of what constituted the basic structure of the Indian Constitution.

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A [188] Apply this doctrine to the Malaysian context, vis-à-vis the FC: the FC
does not state which are the provisions that form the basic structure. How
is the court to determine what are the provisions that form the basic structure
of the Constitution. There is no basis or underlying power to enable the
courts to do this.
B
[189] As the concept of basic structure is vague and indefinite, it would be
left open to each judge to come up with what each of them would term as
“basic structure” of the FC, which leads to “uncertainty” in the
interpretation of the FC and the laws. There is no definite guidance as to what
is and how to define the basic structure or what is the applicable test of
C guidance. In India, the list of what is basic structure continues to develop
according to the judge’s interpretation (see for example the different features
of basic structure as interpreted by each of the judges forming the majority
judgment in Kesavananda Bharati). It was lamented that a precise formulation
of the basic features would be a task of greatest difficulty and would add to
D the uncertainty of interpreting the scope of art. 368 which is the provision
on amendment (Seervai, H.M. (2008), Constitutional law of India, Delhi:
Universal Law Publishing).
[190] Central to the concept of basic structure is that, the provisions of the
Constitution which are implicitly regarded as constituting the basic structure,
E are not subjected to any amendments, in perpetuity.
[191] In matters of interpretation, between the implicit concept and the
express textual provision, we are of the view that the express textual
provision shall take precedence in the principles of interpretation. To hold
to the view that what constitutes basic structure in our FC cannot be
F
amended, would go against the clear and express provision of our very own
art. 159 FC which allow for amendments according to the required
mandatory pre-conditions. As per Raja Azlan Shah FJ in Loh Kooi Choon:
It is therefore plain that the framers of our Constitution prudently realised
that future context of things and experience would need a change in the
G Constitution, and they, accordingly, armed Parliament with “power of
formal amendment”. They must be taken to have intended that, while the
Constitution must be as solid and permanent as we can make it, there is
no permanence in it. There should be a certain amount of flexibility so
as to allow the country’s growth. In any event, they must be taken to have
intended that it can be adapted to changing conditions, and that the
H
power of amendment is an essential means of adaptation. A Constitution
has to work not only in the environment in which it was drafted but also
centuries later ... .
[192] Putting an implied limitation on the powers of Parliament as
postulated by the basic structure concept, clearly contravenes the very
I
provision of the FC as art. 4(1), which states that the FC is supreme and that
only Parliament has the power to make constitutional amendments even if
they are inconsistent with the FC. Parliament may amend the FC as it deems

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94 Current Law Journal [2021] 4 CLJ

fit, so long as they comply with the necessary requirements precedent and A
subsequent regarding the manner and form prescribed by the FC as stated in
art. 159. In addition, putting an implied limitation on the powers of
Parliament as postulated by the basic structure concept “concedes to the
court a more potent power of constitutional amendment through judicial
legislation than the organ formally and clearly chosen by the Constitution for B
the exercise of the amending power.” (as per Raja Azlan Shah FJ (as he then
was) in Loh Kooi Choon). Following thereto, as was aptly held by Suffian
L.P. in Phang Chin Hock:
(3) it is unnecessary ... to decide whether or not Parliament’s power of
constitutional amendment extends to destroying the basic structure of the C
Constitution.
[193] In the context of the challenge in the present appeal, the determination
of the constitutionality of the impugned provision has to be based on what
is provided in the FC. It cannot be premised on some foreign basic structure
concept which is amorphous where uncertainty will ensue in the application D
of our law. Historically, and textually, there is nothing in our Constitution
to indicate which provision constitutes basic structure and hence,
unamendable or to remain as eternity clause.
[194] One must bear in mind of the dangers of relying on concepts/theories
which had developed mostly in foreign countries, as they evolved from the E
historical, social and political context of foreign nations. The basic structure
concept which took root in an alien soil under a distinctly different
Constitution and differs from our own historical and constitutional context,
should not be pressed into use in aid of interpretation of our very own FC.
There is a need for deeper analysis of the rationale and specific historical F
background which underpins such foreign doctrines, no matter how popular
it may seem. The basic structure concept was accepted by the courts in India
at the material time due to the political and social climate surrounding the
composition of the Executives and the Judiciary at that time which was only
peculiar to India then. Such is not the situation in this country. G
[195] The adoption of the basic structure doctrine would create a situation
that although Parliament had followed the procedure in amending the laws
as stated in art. 159, nevertheless the courts can strike it down, if in the
opinion of the courts that the amending law struck at the basic structure of
the FC. Hence, the court will declare that Parliament has no power to amend H
that particular article when art. 159 of the FC allows it, if the correct
procedure is followed. Does that not seem like the courts are over and above
the FC, thus going against what art. 4(1) provides?
[196] Hence, to sum up, on point no (iv): given the aforesaid, the basic
structure doctrine is not applicable in construing the constitutionality of I
s. 15B(1) of POCA in view of art. 159. There is nothing stated in the FC as
to which provision in the FC forms the basic structure. To challenge the

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A constitutionality of s. 15B of POCA, it has to be tested against any of the

provisions of the FC, not against the concept of basic structure. Section 15B
of POCA derived its force of law and validity from art. 149 of the FC. It
cannot be said that s. 15B oust the courts from exercising its powers under
arts. 4(1) or 121(1) of the FC. The courts can exercise its supervisory judicial
B powers in cases where there is non-compliance of procedural requirement.
It is not the basic structure that an aggrieved person is entitled to the fullest
form of remedy in challenging a public authority’s decision. Neither can it
be said to contravene art. 4(1) and to that extent contravenes the “basic
structure” of the FC.
C Effect Of The Trilogy Of Cases
[197] Counsel for the appellants relied on the trilogy of cases of Semenyih
Jaya, Sivarasa Rasiah and Indira Ghandi to support the contention of the
unconstitutionality of s. 15B of POCA. However, such reliance is misplaced
as to the facts and constitutional issues raised in the trilogy of cases are
D
distinguishable and the provisions which the cases dealt with were not
enacted pursuant to art. 149 of the FC. The distinguishing facts and issues
in the trilogy of cases are as follows:
(i) Sivarasa Rasiah concerned a challenge by the appellant on the provision
of the Legal Profession Act 1976 as to his rights to be elected to the Bar
E
Council;
(ii) Semenyih Jaya is a challenge against s. 40D of the Land Acquisition Act
1960 which claimed that the presence of assessors in the determination
of compensation to owners of land acquired usurps the powers of the
F court; and
(iii) Indira Ghandi relates to the jurisdiction of the civil courts in dealing with
whether the certificate of conversion issued by Pengarah Jabatan Agama
Islam Perak which converted the three children of Mrs Indira Ghandi
is valid. It concerned the interpretation of art. 121(1A) of the FC, in
G particular whether the clause had the effect of granting exclusive
jurisdiction on Syariah Court in all matters of Islamic law including
those relating to judicial review. Hence, Indira Ghandi concerned a
jurisdictional issue whether the Syariah Court had certain powers to the
exclusion of the civil courts.
H [198] All the impugned legislations in the three aforesaid cases were not
enacted pursuant to art. 149 of the FC and it has got nothing to do with laws
pertaining to preventive detention or national security of the country. In
addition, there was never any attempt to amend any of the provisions of the
FC in the trilogy of cases cited, that justified the importation of the basic
I structure concept.

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[199] The distinguishing factor between the trilogy of cases and the present A
appeals is that, the present appeals are not concerned with the issue of
removal of judicial power or conferment of judicial power to non-judicial
branch (as in Semenyih Jaya) or jurisdictional issue (as in Indira Ghandi).
[200] This court in PP v. Kok Wah Kuan [2007] 6 CLJ 341; [2008] 1 MLJ
B
1, referred and agreed to the reasoning by Raja Azlan Shah FJ in Loh Kooi
Choon v. Government Of Malaysia which held that in determining the
“constitutionality or otherwise of a statute under our Constitution by the
court of law, it is the provision of our Constitution that matters, not a
political theory by some thinkers” and that “The ultimate touchstone of
constitutionality is the Constitution itself and not any general principle C
outside it”.
[201] That has been the position until Sivarasa Rasiah was decided by this
court in 2010. The learned judge in Sivarasa Rasiah made three preliminary
observations and imported the basic structure concept in reliance on
D
Kesavananda Bharati. It is undisputed that Sivarasa Rasiah was never about the
challenge on the basic structure of the FC and neither was it an attempt to
amend the provision of the FC. From the three broad grounds relied upon
by the appellant therein, he was challenging s. 46(1) of the Legal Profession
Act 1976 as against specific provisions of the Constitution, namely:
E
(i) that the section violates his rights of equality and equal protection
guaranteed by art. 8(1) of the Constitution;
(ii) that it violates his right of association guaranteed by art. 10(1)(c); and
(iii) that it violates his right to personal liberty guaranteed by art. 5(1).
F
Notably also that, in the event the said section violates any provisions of the
FC, the same would be struck down as being unconstitutional, regardless
whether it forms the basic structure of the FC. Whatever may be the features
of the basic structure of the FC, the impugned provision of the Legal
Profession Act 1976 had not destroyed the basic structure (whatever that may
G
be) of the FC. Neither was there any attempt by the appellant therein, to
amend any provision of the FC. Hence there is no necessity to introduce or
import the basic structure principle or the implied limitations on the power
of constitutional amendment in Sivarasa Rasiah, as it was never applied any
way. Therefore the decision of Sivarasa Rasiah vis-à-vis the basic structure
doctrine, was, at best obiter. H

[202] Despite the basic structure doctrine was never applied, the judgment
in Sivarasa Rasiah established the principle and the law that some provisions
of our FC form the basic structure of the FC and cannot be amended by
Parliament at all, and it was readily adopted by Semenyih Jaya. Further, the
I
judgment also laid down the principle that if Parliament amends such
provision which forms the basic structure of the FC, the court will (when

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A challenged in court) strike down such amendment, although it was unclear

as to which provision form the basic structure of the Constitution and where
precisely would the courts obtain such powers to do so.
[203] Hence the reliance on the basic structure concept premised on the
trilogy of cases to strike down s. 15B, enacted by Parliament despite it being
B
enacted according to art. 149 is, with respect, misplaced.
The Case Of R (On The Application Of Privacy International) v. Investigatory
Powers Tribunal And Others [2019] UKSC 22 And Its Application To
Section 15B(1) of POCA
C [204] The case of Privacy International, is seminal as it has been perceived
to have diluted the concept of Parliamentary sovereignty, while
strengthening the constitutional separation of powers between the
Legislature, Executive and Judiciary. The Supreme Court of UK in its
judgment, by a slim majority of 4:3 held that an “ouster clause” in s. 67(8)
D of the Regulation of Investigatory Powers Act 2000 (RIPA), that purports to
exclude from challenge or appeal any decision of the Investigatory Powers
Tribunal (“IPT”), does not prevent a judicial review challenge based on an
error of law.
[205] The case of Privacy International strikes at the issue of whether the
E court has jurisdiction to judicially review decisions of the Investigatory
Powers Tribunal (IPT) despite the exclusion of such jurisdiction by s. 67(8)
of the Regulation of Investigatory Powers Act 2000 (RIPA). IPT is the body
which has jurisdiction to examine the conduct of the security service, the
secret intelligence service and the Government Communications
F Headquarters (GCHQ). IPT is the court where a person can challenge the
lawfulness of a decision to put them under surveillance.
[206] Privacy International, the claimant, sought to challenge the IPT’s
interpretation of s. 5 of the Intelligence Services Act 1994 as an error of law
before the High Court but they were confronted by s. 67(8) of RIPA. Section
G 67(8) provides as follows:
Except to such extent as the Secretary of State may by order otherwise
provide, determinations, awards, orders and other decisions of the
Tribunal (including decisions as to whether they have jurisdiction) shall
not be subject to appeal or be liable to be questioned in any court.
H
[207] The courts were tasked to determine whether, on its proper
construction, s. 67(8) of RIPA precluded judicial review of such decisions.
Notably, s. 67(8) of RIPA is a complete ouster clause as opposed to s. 15B
of POCA which is a partial ouster clause.
[208] The majority held that, as a matter of construction, the wordings in
I
s. 67(8) was not explicit enough to exclude judicial review. It was suggested
that a more explicit formula could have excluded challenges to any
determination or “purported determination” as “a nullity by reason of lack

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98 Current Law Journal [2021] 4 CLJ

of jurisdiction, error of law, or any other matter” [111]. Hence the majority A
held that there was no “ouster” of the High Court’s jurisdiction to review a
decision of the IPT for an error of law. Although obiter, the majority
remarked that it is ultimately for the courts, not the Legislature, to determine
the limits set by the rule of law to the power to exclude judicial review.
B
[209] Lord Sumption and Lord Wilson in their dissenting judgment held that
s. 67(8) cannot be any clearer in ousting the court’s jurisdiction and that the
rule of law was “sufficiently vindicated” by the judicial character of the IPT
[172]. Lord Sumption also considered that the part in parenthesis in s. 67(8)
which includes within the “ouster” clause challenges to decisions of the IPT
as to whether it has jurisdiction, was included by the Parliamentary C
draftsman expressly to address the Anisminic judgment, and was sufficient to
oust the court’s jurisdiction even in respect of errors of law. Lord Wilson was
of a similar view.
[210] However, Lord Sumption considered that while s. 67(8) was clear
D
enough to oust a review of the IPT’s substantive decision (ie, a merits
review), if there were manifest, procedural failings then the ouster clause
would not apply [205].
[211] It is important to analyse the focus and context used by both the Court
of Appeal and the Supreme Court in Privacy International. It is rather
E
interesting not to lose sight of Sales LJ, who was a notable and well-known
public law litigator prior to His Lordship’s elevation to the English Bench.
Sales LJ, in delivering the majority decision of the Court of Appeal, focused
more on the Legislative context of s. 67(8) and his emphasis on the nature
of the subject matter with which the IPT deals, ie, security matters. His
F
reasoning at paras. [7], [10], and [12] of the judgment are illustrative.
[7] The context in which the IPT functions is one in which there is
particular sensitivity in relation to the evidential material in issue and the public
interests which may be jeopardised if it is disclosed. The intelligence services may have
valuable sources of information about terrorist organisations, organised crime and
hostile activity by foreign powers which would be lost if those targets of investigation G
and monitoring became aware of them. Human sources, such as informers, might be
killed or threatened with serious harm if their identities (or even the possibility of their
existence) were revealed. Technological capacities to obtain information might be
rendered useless if it were revealed they existed and new strategies to evade them or
block them were developed. Opportunities for exploitation of simple lapses of care on
the part of targets which allow the intelligence services to obtain valuable information H
about them would be lost if the targets learned about them and tightened up their
procedures. The aspects of the public interest which would be jeopardised
if these things occurred, as referred to in r. 6(1), are of the most pressing
importance.
... I

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A [10] The Legislative regime for the IPT deliberately creates a judicial body with
powers to examine in private and without disclosure any relevant confidential evidence
which cannot safely be revealed to the complainant, which body is at the same
time subject to an imperative overriding rule which forbids it from
requiring disclosure of such material. In this way, the regime provides a
guarantee that the important aspects of the public interest referred to
B above are safeguarded while at the same time enabling the IPT to
examine the merits of claims against the intelligence services and others
on the basis of the relevant evidence in a closed proceeding.
...
[12] In my view the procedural regime governing the IPT and its differences from
C
that applicable to the ordinary courts at the time RIPA was enacted are significant
features of the legal context in which s. 67(8) of RIPA falls to be construed.
(emphasis added)
[212] Employing a literal interpretation, Sales LJ ruled that s. 67(8) operates
D as an effective ouster clause with the effect of totally excluding the
supervisory powers of the High Court, including in respect of the IPT’s
decisions which are erroneous in law. He was of the view that the language
of s. 67(8) was clear and unambiguous. It was materially different from the
language considered by the House of Lords in Anisminic, especially the
E
words in parentheses. Section 67(8) also applies to IPT’s decisions arrived
in an unfairly manner. But in the context of s. 67(8) of RIPA, the IPT’s
decision on the point would be a decision as to whether they had jurisdiction
to proceed in the particular way in issue, which could not be questioned in
any court.
F [213] For Sales LJ, some limitation on the rule of law and a total exclusion
of the supervisory powers of the courts are justified if the subject of a judicial
review proceeding concerns security matters.
[214] Sales LJ’s approach to security matters is more restrictive than the
regime provided for under POCA. POCA was drafted to strike a balance
G between fairness to complainants to raise legal issues on procedural non-
compliance with the Act itself and the need to safeguard security interests.
These interests could also include the non-disclosure of sensitive material
and confidential information establishing the facts which go to the merit of
the arrest and detention of a detainee.
H
[215] Sales LJ’s national security exceptionalism was considered by the
Supreme Court. Here, the focus of the Supreme Court’s majority decision by
Lord Carnwath in Privacy International was directed at the total
non-reviewability of the IPT’s decisions which are erroneous in law.
[216] The majority view of the Supreme Court held that clear words must
I
be used to exclude judicial review.

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[217] The majority view by Lord Carnwath distinguished the IPT’s A

decisions which are wrong in law with those which are wrong in facts. Lord
Carnwath ruled that s. 67(8) of RIPA applies to IPT’s decisions which are
wrong in law. Similarly, Lord Lloyd-Jones, who delivered a supporting
judgment of the majority, agreed at para. [166] of the judgment that s. 67(8)
does not apply to errors of fact. B

[218] The distinction between errors of fact and errors of law as articulated
by Lord Carnwath and Lord Lloyd-Jones is consistent with the Legislative
scheme in POCA. Section 15B allows judicial review in respect of procedural
non-compliance (which is an aspect of law) and excludes judicial review in
respect of the Board’s decision on non-procedural aspects such as the reasons C
and merits behind a person’s arrest and detention (which is a decision based
on facts).
[219] The Supreme Court’s conception of the rule of law is one that exists
side by side with parliamentary sovereignty and that it is for the courts to
D
determine the limits set by the rule of law to the power to exclude judicial
review. In answering the second issue, Lord Carnwath made the following
observation:
[123] ... To deny the effectiveness of an ouster clause is again a
straightforward application of existing principles of the rule of law.
Consistently with those principles, Parliament cannot entrust a statutory decision- E
making process to a particular body, but then leave it free to disregard the essential
requirements laid down by the rule of law for such a process to be effective ...
[131] ... it is ultimately for the courts, not the Legislature, to determine the limits
set by the rule of law to the power to exclude review.
F
[132] This proposition should be seen as based, not on such elusive concepts as
jurisdiction (wide or narrow), ultra vires, or nullity, but rather as a natural
application of the constitutional principle of the rule of law (as affirmed by s. 1 of
the 2005 Act), and as an essential counterpart to the power of Parliament to make
law.
... G

[144] In conclusion on the second issue, although it is not necessary to

decide the point, I see a strong case for holding that, consistently with the
rule of law, binding effect cannot be given jurisdiction of the High Court to review
a decision of an inferior court or tribunal, whether for excess or abuse of jurisdiction,
or error of law. In all cases, regardless of the words used, it should remain ultimately H
a matter for the court to determine the extent to which such a clause should be upheld,
having regard to its purpose and statutory context, and the nature and importance
of the legal issue in question; and to determine the level of scrutiny required by the
rule of law.
(emphasis added) I

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A [220] It is important to note that the context of the above observation was
specifically made in the context of the IPT’s power to decide issues of law.
Therefore, the observation should not be applicable to s. 15B of POCA
which purpose, objective and statutory context, is in relation to preventive
detention which limits the non-reviewability of the Board’s decisions to
B decisions made based on facts (ie, decisions not based on procedural
non-compliance).
[221] The effect of Privacy International as can be captured from Lord
Carnwath’s judgment is that it is for the courts to determine the extent to
which an ouster clause restricts review or appeal in any particular situation.
C However, his view failed to consider the intention of Parliament in
legislating RIPA, as traditionally it would have been the touchstone in
determining the court’s approach in interpreting any ouster clause, as it
would be with any other statutory provision. The majority expressed
concerns that the rule of law being undermined if Parliament is given the
D power to alter the modes of judicial review of a decision of the Executive
when it is undertaken by a “judicial body” like the IPT which is not the
court. In our present context, Privacy International is not an authority to
establish that national security should be a basis in which judicial review
should be totally excluded neither is it an authority to establish that judicial
E
review may be used to scrutinise every aspect of Executive’s action.
[222] Additionally, in determining the extent to which an ouster clause
should be upheld, the court should have regard to the purpose and statutory
context and the nature and importance of the legal issue in question.
[223] This, to our mind, requires an assessment of the impugned provision,
F
namely the purpose and objective of POCA, the scheme of POCA via-a-vis
the nature of determination by the Board. We have highlighted earlier the
historical background of how art. 149 came about, from which s. 15B(1)
derives its force of law and validity, the scheme of POCA and the acts and
decisions that may be made by the Board together with the purpose and the
G statutory context of POCA. The scheme of POCA deals with preventive
detention hence the effect of ouster clause therein may be given a different
treatment as it involves national security and question of policy which is
within the province of the Executive to determine.
[224] In this case, before the Board can make any order, whether to put a
H registered person under police supervision or in a detention centre, the Board
must be satisfied that there are reasonable grounds for believing that such a
person is a member of any of the registrable categories. The Board’s decision
is based on the finding of the inquiry officer submitted under s. 10 and the
complete report of the police investigation submitted under s. 4A.
I
[225] The question is can a person who is a member of any of the registrable
categories involves a determination of issues of facts, be subjected to the
assessment of legality?

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[226] We are of the view that such determination is fact-finding, which, A

according to both cases mentioned above, are beyond the court’s
intervention, bearing in mind the inquiry by the inquiry officer that may
involve consideration of evidence or materials that are not admissible in the
ordinary rule of law of evidence or criminal procedure.
B
[227] It must also be highlighted that the inquiry officer is allowed, subject
to the proviso, if he considers it necessary in the public interest or to protect
a witness, or his family or associates, to receive evidence in the absence of
the person who is subject of the inquiry (s. 9(3)).
[228] This goes on to show that there are matters which are sensitive in
C
nature, involving the security and safety of the witnesses involved in the
inquiry, which altogether is inappropriate to be made public.
[229] The nature of the subject matter in question involves handling
sensitive information. It is not like reviewing other administrative works or
decisions where all materials are available for the court’s assessment to D
measure the legality or otherwise of the decision.
[230] In this case, the determination of whether a person is a member of any
of the registrable categories is a question of fact, the finding of which may
be based on both admissible and inadmissible evidence and on other sensitive
information. E

[231] Privacy International was reviewed, for errors of law involved in the
decision by the Tribunal. In the present case, we are dealing with a wholly
question of fact.
[232] Hence, by applying Privacy International, the ouster clause in F
s. 15B(1) of POCA can still survive the constitutional challenge in the present
appeal. What is of significance is that in Privacy International which placed
importance on rule of law as a basis in its decision is from a jurisdiction
where there is no written Constitution, unlike Malaysia where we have a
written FC with specific provisions therein on powers of the courts and the
G
Legislatures and where the constitutionality of any impugned provision is
tested against the provisions of the FC. But most significant is that, Privacy
International is not a case which dealt with preventive detention laws and the
likes of the provision of art. 149 of the FC.
The Application Of Alma Nudo Atenza With The Present Appeals H
[233] Counsel for the appellants, Encik Najib Zakaria submitted that this
court in Alma Nudo Atenza had struck down s. 37A of the Dangerous Drugs
Act 1952 (DDA) as being unconstitutional and hence reduced the conviction
from one under s. 39B of trafficking under the DDA to one of possession
under s. 39A(2) of the same. Counsel urged this court to act likewise in the I
present appeal and to release the appellants as they had been detained under

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 103

A an unconstitutional provision. However, we are not with counsel on this

point because the facts and issues in Alma Nudo Atenza are poles apart from
our present appeal.
[234] Alma Nudo Atenza concerned a decision of the Federal Court which
struck down s. 37A of the DDA on grounds of double presumption which
B
was invoked by the trial judge against the accused, as it was prescribed as
being disproportionate to the Legislative objective of the legislation. In other
words, it was based on the principle of proportionality. The Federal Court
in PP v. Gan Boon Aun [2017] 4 CLJ 41; [2017] 3 MLJ 12 said at p. 83 (CLJ);
p. 46 (MLJ):
C
(e) there is prohibition against presumptions in principle, but the principle
of proportionality must be observed, a balance must be struck between the
general interest of the community and the protection of fundamental
rights. The substance and effect of presumptions adverse to an accused
must not be greater than is necessary and must be reasonable.
D (f) the test to be applied is whether the modification or limitation pursues
a legitimate aim and whether it satisfies the principle of proportionality;
[235] In the present appeals, Alma Nudo Atenza’s principle of proportionality
is inapplicable to the facts of the case. Here, it is in relation to an ouster
clause which was enacted under a special law pursuant to art. 149 FC which
E
clearly oust the courts from reviewing the decision of the Board except in
procedural non-compliance. Hence the facts, issues and the law are distinct
and distinguishable from Alma Nudo Atenza.
[236] This court in Alma Nudo Atenza also emphasised the importance of the
doctrine of the separation of powers, namely, each component of the
F
administration to confine its powers within the confines of their intended
limits. The impugned provision prescribes the powers of the court in
exercising powers of judicial review. The impugned provision is a Federal
piece of legislation and the court is bound to act according to what has been
prescribed by the Federal law. It is not within the court’s powers to impose
G
reliefs which the law does not permit.
Whether Section 7B of POCA Was Complied With (For The Applicant Nivesh Nair
Mohan)
[237] Section 7B(2) of POCA states:
H
(2) Every member of the Board shall, unless he sooner resigns, hold office
for a period not exceeding three years and is eligible for re-appointment.
[238] The appellant alleged that Dato’ Abdul Razak bin Musa in his affidavit
in reply at para. 2 states that the other two members of the Board are Dato’
Mohamad Fazin bin Mahmud and DCP Mazupi bin Abdul Rahman.
I
Nowhere in the entire affidavit is it stated the date of appointment of
Dato’ Mohamad Fazin or Dato DCP Mazupi as members of the Board or

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104 Current Law Journal [2021] 4 CLJ

when the tenure of their terms of office took effect. This is very crucial as A
s. 7B(2) stipulates that every member of the Board shall hold office for a
period not exceeding three years.
[239] It was further ventilated by the appellant on this point by referring to
the case of Tan Teck Guan lwn. Lembaga Pencegahan Jenayah & Yang Lain
B
[2017] 1 LNS 274; [2017] MLJU 510 where the appellant therein filed a writ
of habeas corpus against his detention vide order dated 26 November 2015. In
the aforesaid case, the order was presumably signed by Dato’ Mohamad
Fazin in 26 November 2015 in his capacity as Deputy Chairman of the
Board. Given the date the order was signed, Dato’ Mohamad Fazin’s term
of office would have expired on 25 November 2018 unless he sooner resigns. C
There is nothing before the court in our present appeals indicating that he was
reappointed following the expiration of his term in office as a member of the
Board thereby his continued term in office as of the date made against the
appellant here is unlawful. It was submitted that this amounts to a serious
breach of the legality of the composition of the Board which, if found to be D
in breach, renders any order made by the Board null and void. Consequently,
the appellant has been deprived of his liberty not in accordance with law.
Such deprivation is unlawful, as such the writ of habeas corpus is
non-discretionary and must be issued by the court.
[240] Coming back to the present appeal by Nivesh Nair a/l Mohan, the E
aforesaid issue was considered by the learned trial judge in his judgment at
p. 21, paras. 27-33 of Jilid 1 of the records of appeal and His Lordship had
rejected this issue, reason being the appellant never raised this in his affidavit.
This issue was raised by the appellant only in his submission. There was no
dispute on the date of appointment of Dato’ Fazin and/or DCP Mazupi as F
members of the Board. The appellant also failed to dispute the reappointment
of Dato’ Fazin after the expiry of his appointment.
[241] In any event, the appellant had never challenged nor rebutted the
averment in the affidavit of Dato’ Abdul Razak bin Musa, the Chairman of
the Board (appeal records jilid 2 p. 51, para. 2). There was no affidavit in G
reply by the appellant to rebut the positive averment of the chairman of the
Board. Hence, the learned High Court Judge deemed it unrebutted by the
appellant. It is trite law that in a trial by affidavit, the court held that such
positive assertion is deemed to be admitted by the opponent, if such positive
averment is unrebutted. This court in Nagaraja Ponusamy v. Menteri Dalam H
Negeri, Malaysia & Ors [2010] 4 CLJ 133 at p. 137 held that:
[3] In the circumstances adumbrated, what approach is the court to adopt?
The answer to this question is well settled by a legion of authorities we
find unnecessary to cite. It is this. Where the deponent to an affidavit
makes a positive assertion, which is not inherently incredible or inherently I
improbable, and his opponent in his affidavit does not credibly deny that
allegation, a court should accept the former assertion as standing
unrebutted. Now apply that test here.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 105

A See also:
(i) Ng Hee Thoong & Anor v. Public Bank Bhd [1995] 1 CLJ 609;
(ii) Keng Kien Hock v. Timbalan Menteri Keselamatan Dalam Negeri Malaysia
& Ors [2007] 5 CLJ 171 at p. 183 para. 10;
B (iii) See Kok Kol v. Chong Kui Seng & Ors And Another Appeal [2010] 2 CLJ
481 at p. 485 para. 13.
[242] This issue would have merits only if there is no evidence or averments
by the respondent on this issue. However in this appeal, as at p. 51 para. 2
of the appeal records jilid 2, ie, the affidavit in reply by Dato’ Abdul Razak
C
bin Musa made positive averments on the appointment of the Chairman and
the committees of the Board under s. 7B of POCA.
[243] In relation to this particular issue, ss. 41 and 50 of the Interpretation
Acts 1948 and 1967 are equally relevant which read:
D Powers of certain bodies not affected by vacancy, etc.
41. A Board, Commission, committee or similar body (whether corporate
or unincorporated) established by or under a written law may act
notwithstanding any vacancy in its membership; and its proceedings shall
not be invalidated by:
E
(a) any defect afterwards discovered in the appointment or qualification
of a person purporting to be a member; or
(b) any minor irregularity in the convening or conduct of a meeting; or
(c) the presence or participation of a person not entitled to be present
F
or participate.
...
Appointment may be made by office and with retrospective effect.
50. Where under any written law the Yang di-Pertuan Agong, a State
Authority, a Minister or any other authority is empowered to appoint a
G
person to exercise any function, to be a member of any Board,
Commission or similar body or to be or do any other thing, he may:
(a) instead of appointing a person by name, appoint the holder of an
office by the term designating the office; and

H
(b) If he thinks fit, make the appointment with retrospective effect to
a date not earlier than the commencement of the law under which
it is made.
[244] In any event, this issue raised does come within the ambit of
procedural non-compliance as envisaged under s. 15B(1) of POCA.
I [245] In Lee Kew Sang v. Timbalan Menteri Dalam Negeri, Malaysia & Ors
[2005] 3 CLJ 914 where the appellant applied for the issuance of a writ of
habeas corpus, contending that the order issued by the Deputy Minister of
Home Affairs Malaysia (“the Deputy Minister”), the first respondent,

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106 Current Law Journal [2021] 4 CLJ

pursuant to s. 4(1) of the Emergency (Public Order and Prevention of Crime) A

Ordinance 5, 1969 (“the Ordinance”) was invalid on the following grounds:
(i) the Deputy Minister did not consider whether criminal prosecution ought
to be taken against him; and (ii) the ground of detention was stale and remote
in point of law to support his detention under the Ordinance. The application
was dismissed at first instance and he subsequently appealed to the Federal B
Court.
The panel of the Federal Court expressed concern that similar cases
involving challenges to detention under the Ordinance; the Internal Security
Act 1960 (“ISA 1960”); and the Dangerous Drugs (Special Preventive
Measures) Act 1985 (“DD (SPM) Act 1985”), were often decided without C
reference to relevant statutory provisions with the result that material
statutory amendments were not given effect.
Hence, the Federal Court found it necessary to emphasise the importance of
several statutory amendments relating to judicial review in those statutes,
D
specifically the amendments relating to the Ordinance. We can do no better
than what has been held by the Federal Court, speaking through Abdul
Hamid Mohamad FCJ, dismissed the appeal and held that:
[1] The Ordinance was amended by the Emergency (Public Order and
Prevention of Crime) (Amendment) Act 1989 (“Act A740”) which came
into force on 24 August 1989. Similar amendments were also made to the E
ISA 1960 and the DD (SPM) Act 1985, respectively by Act A739 and Act
A738. Act A740, inter alia, inserted new ss. 7C and 7D into the Ordinance,
which clearly restricted challenges to detention orders made by the
Minister under s. 4(1) of the Ordinance to grounds of non-compliance
with any procedural requirement, and nothing else.
F
[2] The cases decided prior to the amendments, ie, 24 August 1989,
showed various grounds upon which the detention orders were
challenged. Mala fide appeared to be the most important ground. Courts
seemed to place lesser importance on procedural non-compliance unless
the requirement was mandatory in nature. However, the amendments
appear to have reversed the position by limiting the ground to only one G
ground – non-compliance with procedural requirements.
[3] Courts must give effect to the amendments. Thus, in a habeas corpus
application where the detention order of the Minister is made under
s. 4(1) of the Ordinance or, under equivalent provisions in the ISA 1960
or DD (SPM) Act 1985, the first thing the courts should do is to see H
whether the ground forwarded is one that falls within the meaning of
procedural non-compliance.
To determine the question, the courts should look at the provisions of
the law or the rules that lay down the procedural requirements. It is not
for the courts to create procedural requirements because it is not the I
function of the courts to make law or rules. If there is no such procedural
requirement then there cannot be non-compliance thereof.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 107

A [4] In the instant case, the grounds forwarded for habeas corpus were clearly
not within the ambit of the term “procedural non-compliance”. There
appeared to be no provision in the law or the rules – and neither was the
Federal Court referred to any such provision – that required the Minister
to consider whether criminal prosecution ought to be taken against the
appellant or that the order had to be made within a certain time from the
B date of the alleged criminal acts. Thus, the grounds were not such that
could be relied on in an application for habeas corpus, by virtue of ss. 7C(1)
and 7D(c) of the Ordinance. On this ground alone, the application should
be dismissed.
[246] Further, premised on Chua Kian Voon v. Menteri Dalam Negeri Malaysia
C & Ors [2020] 1 CLJ 747 where this court considered the application of the
provisions of the Dangerous Drugs (Special Preventive Measures) Act 1985
(1985 Act), and held that:
[17] It must be borne in mind that the ambit of judicial review of the
ministerial detention order issued under the 1985 Act is restricted and
D curtailed by ss. 11C and 11D which provides as follows:
Judicial review of act or decision of Yang di-Pertuan Agong and Minister
11C. (1) There shall be no judicial review in any court of, and no court
shall have or exercise any jurisdiction in respect of, any act done or finding
or decision made by the Yang di-Pertuan Agong or the Minister in the
E exercise of their discretionary power in accordance with this Act, save in
regard to any question on compliance with any procedural requirement in
this Act governing such act or decision.
[18] It is apparent that the provisions of ss. 11C and 11D were inserted
in the 1985 Act with the intention to oust the court’s power to review all
F acts done or decision made in the exercise of the Minister’s discretionary
powers except on non-compliance with any procedural requirements
(see: Lee Kew Sang v. Timbalan Menteri Dalam Negeri Malaysia & Ors [2005]
3 CLJ 914; Mohd Faizal Haris (supra).
...
G [80] Before departing from the present appeal, we would like to emphasize
that under the provision of 1985 Act, non-compliance with any procedural
requirement are the only safeguard available to detenu since the court is
not allowed to go beyond the subjective satisfaction of the Minister.
Therefore, the procedure requirements must be strictly and faithfully
complied with.
H
[247] In the circumstances, Nivesh Nair a/l Mohan failed to show that there
has been non-compliance of any procedural requirements.
Conclusion

I
[248] We need to be reminded that art. 4(1) of the FC states that the FC is
the supreme law of the federation. It provides that any post-Merdeka law
inconsistent with the provision of the FC is void. Article 149 of the FC is
part and parcel of the very fabric that clothes the FC, which empowers

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108 Current Law Journal [2021] 4 CLJ

Parliament to pass special preventive laws to prevent any substantial body A

of persons from taking or threatening the Commission of the categories of
acts stipulated under para. (1)(a) - (f). Section 15B POCA was enacted under
art. 149 of the FC. It derives its force of law and validity from art. 149 of
the FC. Nowhere, in the submissions of the appellants was it ever mentioned
that s. 15B is inconsistent with any of the provisions of the FC. Although the B
appellants submitted that s. 15B is ultra vires art. 121(1), that cannot be so
because art. 121(1) confers powers on Parliament to set up an
institutionalised mechanism with the power and jurisdiction on the extent
and manner which is derived from Federal law. POCA is the Federal law,
which provides the extent and manner as to how that power of the courts is C
to be exercised. POCA does not remove judicial power of the courts and
neither does it confer judicial powers to another non-judicial body, as in
Semenyih Jaya (powers given to assessors) or Privacy International (powers
given to Investigatory Powers Tribunal). Hence how could POCA be
inconsistent or ultra vires art. 121(1) of the FC?
D
[249] It has been perceived by certain quarters that on the basis of Semenyih
Jaya, Sivarasa Rasiah and Indira Ghandi, courts can prevent Parliament from
destroying the “basic structure” of the FC. In the process whatever provision
that is being challenged, can be struck down by the courts as being
unconstitutional. However, the concept of basic structure, may be applicable E
where the impugned legislation seeks to amend the Constitution. Suffice for
us to reiterate here that the statutes under scrutiny in the trilogy of cases were
not statutes passed by Parliament to amend any of the provisions of the FC.
[250] No provision of the law can be struck out if it is not inconsistent with
the FC, although it is inconsistent with a doctrine. Doctrines are not F
provisions of the FC, hence one cannot use doctrines/concepts to premise the
inconsistency of any provision of the law so as to strike it down as being
unconstitutional. This runs contrary to the express provision of art. 4(1)
which provides that “ ... any law passed after Merdeka day which is
inconsistent with this Constitution shall, ... be void.” The ultimate test for G
constitutionality of any impugned provision is the FC itself.
[251] We do not deny the need for separation of powers as advocated by
Baron de Montesquieu as the concentration of power in one hand leads
invariably to tyrannical and autocratic tendencies in those welding power, in
the public sphere. On the other hand, it is also undesirable if judges step into H
the shoes of the Executive and that of the Legislature in the guise of novel
interpretation of the laws. It has been said that the dividing line between
judicial activism and judicial overreach is a very thin one. Assuming over the
function of the Executive in areas, not within the purview of the courts and
where the courts of justice is ill-equipped to decide, is certainly a judicial I
overreach. In the words of Thomas Jefferson when he was commenting on
judicial despotism, that “judicial activism reduces the Constitution into mere
wax in the hands of the Judiciary which they may twist and shape into any
form they please.”

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 109

A [252] Section 15B of POCA was enacted within the limit of what art. 149
of the FC allows. Article 149 gives Parliament the Legislative power to enact
POCA with the effect of curtailing fundamental liberties guaranteed under
arts. 5, 9, 10 and 13, which indicates the stature that is given to the law
enacted under it.
B
[253] Given the reasons as aforesaid, s. 15B of POCA which is not a
complete ouster clause but only limits the exercise of judicial review to
procedural non-compliance, is not ultra vires art. 121(1) of the Federal
Constitution (FC). We are not persuaded by the arguments forwarded by
counsels for the appellants to support their proposition on the
C unconstitutionality of s. 15B of POCA.
[254] Therefore, s. 15B of POCA is not unconstitutional and is therefore
valid. As the appeals by the five appellants who were represented by Encik
Najib Zakaria, hinged their appeal on this single issue of constitutionality of
s. 15B(1) of POCA, their case therefore falls.
D
[255] As for the appellant, Nivesh Nair a/l Mohan who was represented by
Dato’ Seri Gopal Sri Ram, his appeal was dependent on the constitutionality
issue and the procedural non-compliance issue, he failed to raise any
procedural non-compliance in the decision making by the Board.
E [256] Consequently, given the aforesaid, the appeals by all the appellants are
hereby dismissed.
[257] My learned brother and sister judges in the panel, Dato’ Abang
Iskandar bin Abang Hashim CJSS, Datuk Vernon Ong Lam Kiat FCJ and
Dato’ Sri Hasnah binti Dato’ Mohammed Hashim FCJ have read this
F judgment and have expressed their agreement to it, to form the majority
judgment of this court.
Nallini Pathmanathan FCJ (dissenting):
Introduction
G
[258] Preventive detention describes the practice of incarcerating
individuals without trial. They are imprisoned without their having been
found guilty of a crime. They are so imprisoned on the basis of allegedly
having committed, or suspected of having committed, crimes. There is a
further assumption that if released, they would be likely to commit
H additional crimes, thereby posing a danger to society at large.
[259] Under the Federal Constitution (“FC”), article (“art”) 149 allows for
Parliament to enact such legislation for the purposes of the security of the
nation and society. Articles 5, 9, 10 and 13 FC are suspended in the interests
of the security of the nation and society. However arts. 4, 8, 121 and 151
I
FC are not excluded. Neither are they subordinated to art. 149 FC.

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110 Current Law Journal [2021] 4 CLJ

[260] To that extent, preventive detention prioritises security over A

individual liberty. While such prioritisation may not in itself be
objectionable, the fact that such legislation effectively allows incarceration
without the individual going through the due process of law, makes it of
equal importance that individual liberties are not unjustifiably or
undeservedly transgressed. B

[261] The subject legislation under consideration in these appeals is the

Prevention of Crime Act 1959 (“POCA”), which was enacted pursuant to
art. 149 FC. Article 149, which is in Part XI of the FC, allows for legislation
against subversion as well as action prejudicial to public order. The title to
POCA describes it as legislation to provide for the more effectual prevention C
of crime throughout the nation, the control of criminals, members of secret
societies, terrorists and other undesirable persons. The registrable categories
include traffickers, smugglers of migrants, unlawful society or gang members
and terrorists.
D
[262] Under POCA, an individual may be arrested, without warrant by a
police officer who has “reason to believe” that grounds exist which would
justify holding an inquiry against that individual. An individual may be
detained at the behest of a police officer, who “reasonably believes” that the
individual has committed crimes, or suspects that he has committed crimes.
After arrest, an inquiry officer conducts an inquiry within a specified number E
of days. The findings of the inquiry officer as well as his recommendation
as to detention are then forwarded to the Prevention of Crime Board.
[263] The term of a detention order is two years and is renewable
indefinitely. This means that preventive detention can be for an indefinite
F
period, without the individual/s being charged and accorded an opportunity
to the due process of being heard and lawfully punished or released.
[264] Under art. 151 FC, which provides constitutional safeguards for the
detainee, no individual may be so preventively detained unless a Board of
Inquiry constituted under s. 7B of POCA, hears the detainee’s
G
representations. In short, the detainee is afforded an opportunity to be heard.
[265] The Board finds no merit in the detainee’s representations, or
conversely, directs the release of the detainee, if satisfied that the
representations are meritorious.
[266] If the Board finds that there is no merit in the detainee’s H
representations, it makes consequential orders under POCA. These orders
affect the liberty of the detainee as the orders that may be made include:
(i) Detention for a period not exceeding two years; however the detention
may be extended for a further two years at a time; or
I
(ii) Restricted residence for five years which may be extended for further
five-year period with an electronic monitoring device attached.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 111

A [267] Therefore, it is this decision of the Board of Inquiry that effectively

determines whether the individual will be preventively detained or
otherwise. And it is that same decision in respect of which no judicial
scrutiny is permitted under s. 15B of POCA. The net effect is that the
decision to detain the individual is seemingly placed beyond the scrutiny of
B the courts.
[268] Section 15B of POCA provides as follows:
15B (1) There shall be no judicial review in any court of, and no court shall have
or exercise any jurisdiction in respect of, any act done or decision made by the Board
in the exercise of its discretionary power in accordance with this Act, except in
C regard to any question on compliance with any procedural requirement in
this Act governing such act or decision.
(2) In this Act, “judicial review” includes proceedings instituted by way of:
(a) an application for any of the prerogative orders of mandamus, prohibition and
certiorari;
D
(b) an application for a declaration or an injunction;
(ba) a writ of habeas corpus; and
(d) any other suit, action or other legal proceedings relating to or arising out of
any act done or decision made by the Board in accordance with this Act.
E
(emphasis added).
Ouster Clauses
[269] Section 15B is an ouster clause. As explained by amicus curiae
Professor Shad Saleem Faruqi, an ouster clause also known as a privative
F
clause is a provision in a statute that seeks to prohibit judicial review of acts
or decisions of the Executive or of a named authority. It seeks to remove the
court’s ability to scrutinise the legality of a determination made by statutory
bodies, tribunals and in the instant case, the decision of the Board to detain
an individual under POCA. Ouster clauses seek to strip the courts of their
G supervisory judicial function.
[270] The primary issue in this appeal is a consideration of the
constitutionality of s. 15B POCA in light of art. 4 FC. This article ensures
that all bodies stay within the limits of the FC, even in the face of ouster
clauses prohibiting judicial review. Where a complaint of unconstitutionality
H is involved can an act of Parliament or a statutory provision crafted to
exclude the scrutiny of the court prevail? It should be emphasised that this
appeal deals only with the ability of the courts to scrutinise the decision of
the Board. It does not mean that if the ouster clause is found to be invalid
the exercise of discretion or power by the Board is thereby automatically
I invalidated. That is a separate matter that is to be determined by way of
judicial review or administrative law principles.

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112 Current Law Journal [2021] 4 CLJ

[271] What is in issue here is whether a statutory provision which seeks to A

preclude the courts from exercising their basic supervisory function of acting
as a check and balance can be ousted, given the clear provisions of the FC.
The Six Appeals
[272] These six appeals relate to six different habeas corpus applications. B
They are brought/lodged against the six decisions of the High Court in Kuala
Lumpur delivered on a series of dates, dismissing the appellants’ applications
for a writ of habeas corpus to secure their release in relation to detention
orders made against the appellants by the second and third respondents under
s. 19A of POCA.
C
[273] The series of six appeals before us raise a fundamental albeit
controversial question of law in relation to the constitutionality of ouster
clauses in legislation dealing specifically with preventive detention enacted
pursuant to art. 149 FC.
[274] The six appellants who are detainees under POCA challenge the D
constitutionality of s. 15B POCA, ie, the ouster clause which stipulates that
the courts are precluded from judicially reviewing and scrutinising the
decision of the Prevention of Crime Board. It is this decision that affirmed
or endorsed the decision of the Board to detain them under POCA, save on
the grounds of procedural non-compliance. E

[275] The appeals in question are:

Appeal No. Parties

05(HC)-304-12/2019(B) Rovin Joty a/l Kodeeswaran v. Lembaga
F
Pencegahan Jenayah & 4 Ors
05(HC)-308-12/2019(B) Darweesh bin Raja Sulaim v. Lembaga
Pencegahan Jenayah & 4 Ors
05(HC)-303-12/2019(B) Ragu a/l Vitee v. Lembaga Pencegahan
Jenayah & 4 Ors G
05(HC)-305-12/2019(B) Velu a/l Rajakumar v. Lembaga Pencegahan
Jenayah & 4 Ors
05(HC)-307-12/2019(B) Devandren a/l James v. Lembaga Pencegahan
Jenayah & 4 Ors
H
05(HC)-7-01/2020(W) Nivesh Nair a/l Mohan v. Dato’ Abdul
Razak bin Musa, Pengerusi, Lembaga
Pencegahan Jenayah

[276] It was determined that these appeals be heard together as they all deal
with the same fundamental issue, namely the constitutionality of s. 15B of I
POCA.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 113

A [277] In the event the statutory ouster clause is found to be constitutionally

valid, it follows that the provision will be strictly adhered to, such that only
procedural non-compliance will comprise the subject matter of any habeas
corpus application.
[278] If s. 15B POCA is found to be constitutionally invalid and thereby null
B
and void, it follows that the courts may then undertake a full judicial review
of the decision of the Board. This does not mean that the detainees will
necessarily be released. The courts will simply be at liberty to judicially
review the decision of the Board to reject the representations of the detainee
within circumscribed limits. In short, the decision of the Board to detain the
C detenu under POCA will be subject to judicial scrutiny, but again under
circumscribed limits relating to the legality of the decision.
Representation At The Hearing Of These Appeals And Assistance Afforded
By Amicus Curiae
D [279] In determining these appeals, we were assisted considerably by
distinguished and renowned counsel Dato’ Seri Gopal Sri Ram, who led the
arguments on behalf of the appellants, and Najib Zakaria, whose proficiency
in this area of the law is well-respected.
[280] We were equally fortunate to have experienced and knowledgeable
E Senior Federal Counsel (“SFC”) Shamsul Bolhassan, and the skilful and
meticulous SFC, Liew Horng Bin from the Attorney-General’s Chambers,
assisted by the diligent SFC Sinti bin Mohamed, to aid us with clear and
cogent arguments on the necessity for such ouster clauses to be given effect,
particularly in the field of preventive detention. I express my gratitude to
F them for their well-reasoned and researched submissions.
[281] As the issues in this series of appeals are of pivotal significance,
because they will have a binding effect on the reviewability of such ouster
clauses in future cases relating to POCA, we considered it necessary and
prudent to enlist the assistance of amicus curiae to enable the court to ascertain
G and explore the full scope of the law in this area.
[282] We were privileged to receive the erudite treatise of the eminent
constitutional expert, Emeritus Professor Shad Faruqi on this matter. In
court, we heard the eloquent and expert counsel, Dato’ Nijar as amicus curiae,
present a full and detailed submission on the entire scope of the appeal, as
H well as answering the questions we raised. We express our gratitude to them
for their enlightening and comprehensive submissions.
[283] As stated at the outset, the substance of the submissions turned on the
constitutional validity of the ouster clauses in s. 15B POCA. We turn
immediately to the submissions put forward by the various parties. In view
I
of the length of the parties’ submissions, we provide a summary of the same.

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114 Current Law Journal [2021] 4 CLJ

The Appellant’s Submissions On The Constitutionality Of Section 15B A

POCA
[284] In summary, the appellants contend that these statutory provisions,
which purport to oust the jurisdiction of the court to review the decision to
detain them under POCA are unconstitutional. They submit that such
B
statutory provisions effectively restrict judicial powers as enshrined under
art. 121(1) FC, and are to that extent, void. In support of this submission,
reliance is placed on the now renowned trilogy of cases, namely Semenyih
Jaya Sdn Bhd v. Pentadbir Tanah Daerah Hulu Langat & Another Case [2017]
5 CLJ 526; [2017] 3 MLJ 561 (“Semenyih Jaya”), Indira Gandhi Mutho
v. Pengarah Jabatan Agama Islam Perak & Ors And Other Appeals [2018] 3 CLJ C
145; [2018] 1 MLJ 545 (“Indira Gandhi”) and Alma Nudo Atenza v. PP And
Another Appeal [2019] 5 CLJ 780; [2019] 4 MLJ 1 (“Alma Nudo”).
[285] More specifically, learned counsel Gopal Sri Ram submitted that
s. 15B POCA is unconstitutional as it infringes the provisions of art. 121(1)
D
FC in relation to judicial power and should therefore be struck down. This
in turn is because it curtails the right to judicial review save on procedural
grounds. The ouster clause infringes judicial power vested in the High Court
to remedy, through judicial review, the detention of a detainee who seeks to
challenge the lawfulness or legality of his detention. It also removes the
constitutionally guaranteed right of a detainee under art. 5 FC to challenge E
his detention on substantive grounds. In other words, a detainee ought to be
able to challenge his detention on both procedural as well as substantive
grounds.
[286] The ouster clause also impedes access to justice under art. 5(1) FC,
F
recognised as a fundamental right in PP v. Gan Boon Aun [2017] 4 CLJ 41;
[2017] 3 MLJ 12. This envisages the right to a just and effective remedy
(see Anita Khushwaha v. Pushap Sudan AIR 2016 SC 3506, and AIC Limited
v. Fischer [2013] SCC 699).
[287] It was further submitted that s. 15B POCA is unconstitutional because
G
it violates the basic structure of the Constitution and the doctrine of
separation of powers by impeaching judicial power as enshrined in art. 121
FC.
[288] Further to Indira Gandhi, s. 15B POCA renders the detention order
unlawful and void and liable to be set aside. (see Minerva Mills Ltd v. Union H
of India AIR 1980 SC 1789 for the proposition that judicial power may not
be removed from the High Courts).
[289] Moreover POCA was enacted pursuant to art. 149 FC, which suspends
the operation of arts. 5, 9, 10 and 13 but not art. 121 FC. Accordingly s. 15B
POCA is unconstitutional, the detention is illegal and improper and a writ I
of habeas corpus should ensue.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 115

A [290] Najib Zakaria guided us in the course of his written submissions

through the law on ouster clauses in Malaysia commencing with the earliest
decision in this jurisdiction on the application of ouster clauses in emergency
or preventive legislation in Re Tan Boon Liat & Anor Et Al; Tan Boon Liat
v. Menteri Hal Ehwal Dalam Negeri & Ors And Others Appeals [1977] 1 LNS 110;
B [1977] 1 MLRA 22. The Federal Court in that case dealt with ouster clause
construction in preventive detention legislation in the form of s. 6 of the
Emergency (Public Order and Prevention of Crime) Ordinance 5, 1959.
[291] There, it was provided that recommendations of the Advisory Board
were to be given to the Yang di-Pertuan Agong who could then give the
C Minister such directions, if any as he thought fit. Such decision was final and
“shall not be called into question in any court.”
[292] In Re Tan Boon Liat there was a contravention of art. 151(1)(b) FC in
that the decision confirming the detention was made beyond the prescribed
period of three months in the said article. The Advisory Board had exceeded
D
the period, and accordingly the Yang di-Pertuan Agong’s decision was
similarly out of time as prescribed under the FC.
[293] Lord President Suffian held that the ouster clause applied only to real
decisions and not to ultra vires decisions, relying on Anisminic Ltd v. Foreign
Compensation Commission [1969] 2 AC 147. As His Majesty’s orders were
E
ultra vires, the detainee was ordered to be released. In other words, the ouster
clause had no effect where the decision itself was flawed.
[294] Chief Justice Lee Hun Hoe CJ (Borneo) emphasised that in matters as
fundamental as the liberty of the subject it was imperative that there should
F be strict compliance with the requirements of the Constitution, and
notwithstanding the ouster clause, the breach of duty on the part of the
Advisory Board rendered the continued detention after the prescribed three
month period unlawful. Justice Ong Hock Sim FCJ reiterated a similar view.
[295] It was submitted that as far back as 1977 the Federal Court recognised
G that an ouster clause cannot effectively oust the jurisdiction of the court and
thereby salvage an illegality premised on a constitutional contravention.
[296] Najib Zakaria then submitted on the position of ouster clauses in
England as opposed to Malaysia. In England, ouster clauses are construed
restrictively and only given effect where there are express words to that effect
H or the clearest of implications. However Malaysia is governed by
constitutional supremacy while England subscribes to parliamentary
supremacy. The FC is the supreme law of the land as borne out by the
legendary case of Ah Thian v. Government Of Malaysia [1976] 1 LNS 3; [1976]
1 MLRA 410 where Suffian LP famously stated:
I
The doctrine of the supremacy of Parliament does not apply in Malaysia.
Here we have a written Constitution. The power of Parliament and of
State Legislatures in Malaysia is limited by the Constitution, and they
cannot make any law they please.

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116 Current Law Journal [2021] 4 CLJ

[297] And in Sivarasa Rasiah v. Badan Peguam Malaysia [2010] 3 CLJ 507; A
[2012] 6 MLRA 375 (“Sivarasa Rasiah”), Gopal Sri Ram FCJ (as he then was)
reaffirmed the doctrine of the supremacy of the Constitution which means
that law that is not consonant with or transgresses the purview of the FC is
liable to be struck down.
B
[298] To complete this argument it was submitted that POCA was enacted
pursuant to art. 149 FC which does not suspend the operation of art. 121 FC.
Accordingly judicial power is not ousted (even if that were permissible), as
a consequence of which the ouster clause in POCA is ineffective as it cannot
override art. 121 FC.
C
[299] Najib Zakaria completed his submissions by reference to the
renowned trilogy of cases elucidating the full and proper construction to be
accorded to judicial power under art. 121 FC. As this was a common aspect
of all parties’ submissions, we detail those submissions more fully when
setting out the position taken by amicus curiae, Dato’ Nijar.
D
The Respondents’ Submissions On The Constitutional Validity Of Section
15B POCA
[300] SFC Shamsul Bolhassan responded to the appellants’ submissions also
by reference to the renowned trilogy of cases, namely Semenyih Jaya, Indira
Gandhi and Alma Nudo. He accepted that judicial power is vested in the High E
Court and that Parliament cannot amend those constitutional provisions that
comprise a part of the basic structure of the FC.
[301] However, he pointed out that in the context of the six appeals here
relating to POCA, there was an entirely different Legislative regime in place.
POCA was one of a series of special laws relating to preventive detention F
enacted pursuant to art. 149 FC. This was to be contrasted with the
legislation in the trilogy of cases all of which dealt with general laws enacted
pursuant to art. 74.
[302] He stated that there should be a general differentiation between these
G
two regimes. Legislation enacted pursuant to art. 149 was special and
operated under a different mechanism. To substantiate this point, he relied
on the preamble to POCA (as reproduced earlier), which dealt specifically
with subversion and the prevention of serious crimes and violence to ensure
public order.
H
[303] He further pointed out that protection against transgressions in the
conduct and operation of preventive detention legislation was provided for
within the FC itself in the form of art. 151 FC. Article 151 in itself affords
the detainee an opportunity to be heard and his representations as well as the
basis for the issuance of a detention order are scrutinised and analysed by an
I
independent Advisory Board/Board of Inquiry. This, SFC maintained, was
more than sufficient to provide a full “remedy” to the detainee.

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 117

A [304] In essence art. 149 FC, it was argued, comprises a separate “regime”
within the FC that is necessitated for security reasons. This is borne out by
the suspension of arts. 5, 9, 10 and 13 FC. The need to safeguard security
concerns for the country overrides the need for a full judicial scrutiny of the
Board’s decision. It was also stated that the jurisdiction of the court is not
B ousted in its entirety in that non-compliance with procedural safeguards
comprises sufficient basis for the grant of a writ of habeas corpus.
[305] The respondents, through SFC Mohammed Sinti, in their written
submissions, also rely on a long series of cases determined by this court, and
more recently reinforced both by further statutory amendments
C (see Amendment Acts – the Malaysia Act (Act 26/1963, in force from
16 September 1963) and the Constitution (Amendment) Act 1988 [A704, in
force from 10 June 1988, referred to as “the 1988 amendment”) and judicial
case-law, particularly Kerajaan Malaysia & Ors v. Nasharuddin Nasir [2004]
1 CLJ 81; [2003] 2 MLRA 399 (“Nasharuddin”) and Lee Kew Sang
D v. Timbalan Menteri Dalam Negeri & Ors [2005] 3 CLJ 914 (“Lee Kew Sang”),
which uphold the position that such ouster of the court’s jurisdiction to
review is constitutional given that such legislation is enacted under art. 149
FC.
[306] SFC Liew Horng Bin took us through the historical and philosophical
E context of the FC with a view to establishing that the courts do not enjoy an
unlimited jurisdiction and unbridled powers when it comes to the
enforcement of fundamental rights by way of judicial review. The submission
put forward is that the remedy for the enforcement of such rights is governed
by “ordinary law” on a reading of the historical aspects of the Reid
F Commission. As this series of contentions relates primarily to the report of
the Reid Commission and the circumstances in which our FC took its current
shape, these submissions are considered below in our analysis on judicial
power and art. 4(1) FC.
Submissions By The Amicus Curiae Professor Gurdial Singh Nijar
G
[307] In summary, Dato’ Nijar highlighted that judicial review is a
constitutional imperative operationalising the rule of law and separation of
powers underpinning the FC. Judicial review was a crucial mechanism to act
as an effective check and balance on the Legislative and Executive arms of
Government. Therefore any act by the Legislature undermining judicial
H review would be tantamount to altering the basic structure of the FC and is
void. Any attempt by the Legislature seeking to insulate Executive or
administrative action from review should be struck down as unconstitutional
no matter how widely worded. (See Pengarah Tanah Dan Galian, Wilayah
Persekutuan v. Sri Lempah Enterprise Sdn Bhd [1978] 1 LNS 143; [1979] 1 MLJ
I 135). Habeas corpus is another form of judicial review as they are both
grounded on common principles. He concluded that s. 15B POCA is
unconstitutional and void for these reasons.

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118 Current Law Journal [2021] 4 CLJ

Opinion By Amicus Curiae Professor Shad Saleem Faruqi A

[308] Professor Shad Saleem Faruqi’s extensively researched opinion

explained the concept of ouster clauses and how they work. He explained the
distinction between the position in the UK which is based on parliamentary
sovereignty unlike Malaysia which is premised on constitutional supremacy.
B
He pointed out that the latter allows any act of Parliament including an ouster
clause to be declared unconstitutional.
[309] With respect to ouster clauses in relation to legislation enacted
pursuant to art. 149, Professor Shad pointed out that notwithstanding the
suspension of art. 5 rights, the provisions of arts. 8 and 121 remained intact
C
and had to be complied with.
[310] He distinguished earlier case-law in this jurisdiction which upheld
ouster clauses on the grounds, notwithstanding arts. 4(1), 121, 128 and
162(6) FC, which were not considered at all. He explained this could be
attributed to the fact that (unlike other Commonwealth jurisdictions like D
India and Singapore) we were still influenced by colonial British case law,
premised on the English concept of parliamentary sovereignty.
[311] He emphasised that as all judges take an oath to preserve, protect and
defend the Constitution under the Sixth Schedule of the FC, an ordinary
piece of legislation or a constitutional amendment cannot neutralise the duty E
of the courts. He further stated that the courts have the constitutional
mandate to uphold the FC and strike down any Legislative or Executive
measure that is unconstitutional. His conclusion is that s. 15B POCA is
therefore unconstitutional and void as it seeks to remove the jurisdiction of
the courts to scrutinise legislation with a view to ascertaining whether such F
provision is consistent with the FC.
[312] It must be said that the summaries above do little justice to the
comprehensive and learned opinions of amicus curiae, which ought to be read
in original to appreciate the full context and extent of their treatises.
G
Analysis And Decision
[313] In light of the foregoing, I now turn to analyse and determine the issue
before us, namely the constitutional validity of s. 15B of POCA.
The Role Of Article 4(1) FC
H
[314] As stated at the outset, the significant issue that arose for consideration
by the parties and amicus curiae was whether in light of art. 4(1) FC, which
enables the Judiciary to strike out statutes or statutory provisions which are
not consistent with the FC, the ouster clause namely s. 15B in POCA, is
constitutional, given that it expressly precludes judicial review or scrutiny of
I
the decision of the Board pursuant to POCA?

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 119

A [315] Put another way, if art. 4(1) FC allows any statute or statutory
provision to be subject to judicial scrutiny for the purposes of ascertaining
whether its provisions or objective are consistent with the FC, can
Parliament enact a law effectively preventing the courts from undertaking the
judicial scrutiny expressly conferred on the Judiciary by art. 4(1)?
B
[316] Section 15B POCA expressly precludes the courts from exercising any
form of review function over decisions made by the Board on the grounds
that it was legislated pursuant to art. 149 FC for security reasons, save on
procedural grounds.
[317] Article 149 FC allows for the promulgation of special legislation to
C
deal with subversion and the other events specified there, for the ultimate
protection and benefit of the nation. For the purposes of such special
legislation, certain fundamental liberties such as arts. 5, 9, 10 and 13 FC are
suspended. This means that legislation enacted pursuant to art. 149 FC may
infringe personal liberties as set out in the foregoing articles, but still remain
D
constitutional.
[318] What then is the position if a challenge is brought in respect of the
constitutionality of either of these provisions, namely s. 15B POCA? This
provision explicitly provides that no such challenge can be brought. Does it
therefore follow that no such challenge can be brought against these
E
provisions because Parliament has expressly provided so? Or because these
provisions were enacted pursuant to art. 149 FC?
[319] In answering these questions it is imperative to bear in mind that we
practice constitutional supremacy where the Federal Constitution is the
F supreme law of the land. Therefore legislation, albeit preventive detention,
legislation must conform to, or fall within the ambit of the FC. If there is
a contravention of any of the provisions of the FC, the legislation or statutory
provision within such legislation is void, as set out in art. 4(1) FC.
[320] It follows that any such legislation or statutory provision that is
G challenged on the grounds of constitutionality as provided for under art. 4(1)
FC must be tested against the provisions of the rest of the FC to answer the
issue of constitutional validity. The answer as to whether there has been an
infringement of any provision of the FC will turn on a construction of the
statute as against the FC.
H [321] Article 4(1) FC provides:
This Constitution is the supreme law of the Federation and any law
passed after Merdeka day which is inconsistent with this Constitution
shall, to the extent of the inconsistency, be void.
(emphasis added)
I
[322] The article therefore provides for:
(i) Constitutional supremacy as opposed to parliamentary sovereignty; and
significantly for the purposes of these appeals.

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120 Current Law Journal [2021] 4 CLJ

(ii) The right to challenge the constitutionality of any “law” to ascertain A

whether it is consistent or inconsistent with the FC. If the legislation
falls within the former category, it is constitutional, but if it is
inconsistent with the provisions of the FC, it is unconstitutional.
[323] In other words, art. 4(1) FC enshrines the ability of the Judiciary to
B
entertain a challenge in respect of any legislation or statutory provision
enacted by Parliament. Whether the challenge is successful or otherwise is
a different matter. It must be the Judiciary that is armed to ascertain
constitutionality as such a function does not fall within the purview of the
other two arms of Government.
C
[324] It follows from this that any or all legislation (and therefore statutory
provisions in legislation) enacted by Parliament can be made the subject
matter of challenge under art. 4(1) FC. This is clear from the second part of
art. 4(1) FC which provides that law that is inconsistent with the FC is void.
[325] It is not possible to ascertain whether a law is consistent or D
inconsistent with the FC, until and unless a challenge is made as to its
constitutionality on the basis of art. 4(1) FC. So to enact a law which
precludes the application of art. 4(1) FC, would defeat the very objective and
purpose of that article. Article 4(1) FC would be rendered otiose. In other
words, there must be a means of challenging the “law” in question, failing
E
which the purpose and effect of art. 4(1) FC would be nugatory.
[326] As stated earlier, any such challenge would necessarily have to be
determined by the courts, the third arm of Government. The Judiciary’s role
in ensuring that there is a check and balance on both Legislative and
Executive action (namely the rule of law) is enshrined in art. 4(1) FC. F
[327] To that extent, art. 4(1) FC enshrines the twin fundamental pillars of
a constitutional democracy, namely the rule of law and the doctrine of the
separation of powers. It is the root or source for the conferment of judicial
power as exemplified in art. 121 FC. It reflects the scope and ambit of
judicial power, as it expressly recognises that it is the Judiciary that exercises G
the power to provide a check and balance for the acts and omissions of the
other two arms of Government, namely the Legislature and the Executive.
[328] The point being made here is that the right to challenge legislation is
an integral part of the FC. Any statutory provision which seeks to preclude
the courts from exercising their rights under art. 4(1) FC contravenes that H
very article and to that extent contravenes the substance of the FC and is
void. Section 15B POCA is an ouster clause that seeks to do precisely that,
namely preclude or oust the jurisdiction of the courts to examine decisions
made in relation to preventive detention by an Inquiry Board. It stipulates
that no court can exercise its powers of judicial review to do so. I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 121

A [329] That, in itself, is a contravention of art. 4(1) FC which enables all

statutory provisions to be examined for constitutional validity. In order to
examine its constitutional validity, it follows that s. 15B POCA, being a
component part of legislation enacted by Parliament, is subject to challenge
under art. 4(1) FC.
B
[330] Put another way, art. 4(1) FC prevails over these “ouster” provisions,
in so far as the right to challenge such provisions is concerned. The net effect
of art. 4(1) FC is that any attempt to preclude a challenge as to the
constitutionality of legislation, is ineffective. Ouster clauses are ineffectual in
so far as they seek to preclude the examination of legislation in relation to
C its constitutionality.
Article 149 FC
[331] The fact that this legislation was promulgated pursuant to art. 149 FC
does not make either the legislation itself, or statutory provisions within it,
D immune from such challenge or examination under art. 4(1) FC. There is
nothing in art. 149 FC that protects legislation enacted under it from
constitutional challenge under art. 4(1) FC. If it were not so, it would be
possible for Parliament to enact extreme legislation without any recourse to
examine or review such legislation to ascertain whether it complies with the
FC, the supreme law of the land, where constitutional supremacy reigns.
E
[332] As such, it may be said that it is implicit in art. 149 FC itself, that
there can be no ouster of judicial power as art. 4(1) FC is not excluded.
Instead, it provides that infringements of arts. 5, 9, 10 and 13 FC do not
render legislation made pursuant to it, unconstitutional.
F [333] Reverting to the power of the courts to ascertain the constitutional
validity of a statutory provision or legislation, it remains essential that laws
enacted by Parliament remain open to judicial scrutiny for that purpose.
Judicial Supremacy?
G [334] It should further be pointed out that the existence of art. 4(1) FC in
no way confers a system of judicial supremacy either. The fact that the courts
are tasked with ascertaining the constitutionality of legislation passed by the
Legislature and executed by the Executive, conforms to the most basic
precepts of the separation of powers and thereby the rule of law. Therefore
H any attempts to suggest that the Judiciary is usurping the powers of the
Legislature and thereby the franchise of the people is misplaced, because the
Judiciary functions only to point out and prevent acts that are inconsistent
with the FC. It is therefore the FC that is supreme, and the Judiciary merely
the means of ensuring that the provisions of the FC are protected.
I [335] At all times, the Judiciary is, or ought to be aware of its role as
performing such a check and balance and encroach no further. What this
means in real terms is that the courts do not and should not encroach on

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122 Current Law Journal [2021] 4 CLJ

matters of security, policy et cetera, which are not within the ambit of its A
scope of function. The Judiciary is very much alive to this boundary, as that
comprises an essential component of the doctrine of the separation of powers.
[336] As stated by amicus curiae Professor Shad Saleem Faruqi in his advice
to the court, “ ... there are overriding constitutional considerations for
B
ensuring that everyone stays within the limits of the Constitution, even if
there are privative clauses obstructing the path to judicial review. It is
submitted that if any complaint of unconstitutionality is involved, no
Legislative formula inserted into an Act of Parliament can prevent the courts
from exercising their function of scrutinising the impugned law or action and
enforcing the commands of the supreme law.” C

[337] Dato’ Nijar in turn submitted that the ouster clause is unconstitutional
particularly in light of the recent Federal Court decisions in Sivarasa Rasiah,
Semenyih Jaya and Indira Gandhi. He highlighted that these cases identified
“ ... judicial review as a constitutional imperative, operationalising the rule
D
of law underpinning the Constitution and its concomitant, the separation of
powers. These concepts taken together were declared as the basic structure
of the Constitution – sacrosanct and inviolate and not amenable to the
amendment provisions of the Constitution.”
[338] Indeed in Semenyih Jaya, this court speaking through Zainun Ali FCJ
E
referred to the leading case on basic structure:
[87] The principles laid down in Kesavananda Bharati v. State of Kerala AIR
[1973] SC 146 were reviewed and affirmed by the Supreme Court in Indira
Nehru Gandhi v. Shri Raj Narain & Anor AIR [1975] SC 2299. The Supreme
Court emphasised the sanctity of the doctrine of separation of powers and
F
the exclusivity of judicial power, Khanne J, in concurring with the
majority, inter alia, held at pp 2340-2347 that:
A declaration that an order made by a court of law is void is
normally part of the judicial function and is not a Legislative
function. Although there is in the Constitution of India no rigid
separation of powers, by and large the spheres of judicial function G
and legislation function have been demarcated and it is not
permissible for the Legislature to encroach upon the judicial
sphere. It has accordingly been held that a Legislature while it is
entitled to change with retrospective effect the law which formed
the basis of the judicial decision, it is not permissible to the
Legislature to declare the judgment of the court to be void or not H
binding. (emphasis added)
[339] An ouster clause such as s. 15B POCA does encroach upon judicial
power expressly and directly, as it proscribes judicial scrutiny for
inconsistency with the FC. As such, it does injury to the doctrine of the
separation of powers and thereby the rule of law. I

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 123

A [340] And in Indira Gandhi the primal importance of art. 4 FC was explained
by this court by reference to the well-known decision of the erudite former
Chief Justice of Singapore, Chan Sek Keong in Mohammad Faizal Sabtu v. PP
[2012] SGHC 163 at paras. 14 - 15:
... The first fundamental difference is that the UK’s Westminster model
B is based on the supremacy of the UK Parliament, under which the UK
parliament is supreme, with the result that the UK have no power to
declare an Act of the UK parliament unconstitutional and, hence, null and
void. In contrast, Singapore’s Westminster model is based on the
supremacy of the Singapore Constitution, with the result that the
Singapore courts may declare an Act of the Singapore parliament invalid
C
for inconsistency with the Singapore Constitution and, hence, null and
void. Article 4 of the Singapore Constitution expresses this constitutional
principle in the following manner:
This Constitution is the supreme law of the Republic of Singapore
and any law enacted by the Legislature after the commencement
D of this Constitution which is inconsistent with this Constitution
shall, to the extent of the inconsistency, by void.
It should be noted that art. 4 of the Singapore Constitution states that
any law inconsistent with this Constitution, as opposed to any law
inconsistent with any provision of this Constitution is void. The specific
E form of words used in art. 4 reinforces the principle that the Singapore parliament
may not enact a law, and the Singapore Government may not do any act, which
is inconsistent with the principle of separation of powers to the extent to which that
principle is embodied in the Singapore Constitution. (emphasis added)
[341] Indeed if the position were taken that ouster clauses render legislation
F such as s. 15B POCA immune from examination under art. 4(1) FC, that
would afford the Legislature and the Executive immense and arbitrary
powers with no redress or respite to persons affected and/or aggrieved by the
implementation of such legislation or the exercise of discretion within such
legislation, illegally or without valid basis. That would run counter to the
rule of law that comprises a basic and fundamental tenet of our Westminster
G
model of democracy and comprises the lifeblood of the FC. In these
circumstances, I can only respectfully concur with learned amicus curiae.
[342] Applying the doctrine of stare decisis I am of the view that this court
is bound to abide by the principle establishing that art. 4(1) FC (as expounded
H in both Semenyih Jaya and Indira Gandhi) is sacrosanct and places an express
duty on the courts of this land to subject any statute or Executive action or
omission arising therefrom to scrutiny, when challenged, to ensure that it
complies with the FC. To do any less would amount to an omission to adhere
to a judge’s oath to protect the FC.
I [343] However, the Attorney-General (“AG”) put forward submissions
opposing this particular construction of the remedies available in relation to
preventive detention legislation made pursuant to art. 149 FC. The thrust of
these submissions as alluded to earlier, turned on a historical perspective and

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124 Current Law Journal [2021] 4 CLJ

construction of the Reid Commission’s formulations leading up to the FC, A

which historical provisions, it was contended, at all times accepted that all
remedies available in relation to preventive detention legislation such as
POCA were proscribed and limited by Federal law.
The Submissions Of The AG In Maintaining That Section 15B POCA Is
B
Constitutional
[344] SFC Liew Horng Bin began his comprehensive submissions on behalf
of the Attorney-General on this aspect by accepting and outlining the
position in law as enunciated in the trilogy of cases, namely Semenyih Jaya,
Indira Gandhi and Alma Nudo:
C
(i) Judicial power is enshrined in the High Courts under art. 121 FC. The
rule of law and the separation of powers denoting the independence of
the Judiciary are fundamental features of the basic structure of the FC.
The inherent judicial power of the civil courts under art. 121 FC is
“inextricably intertwined” with their constitutional role to provide a D
check and balance mechanism as envisaged by the FC;
(ii) Parliament does not have the power to amend the FC to the extent of
undermining its fundamental or basic features such as the doctrine of
separation of powers and the independence of the Judiciary. These core
features, which comprise the quintessence of the FC, cannot be E
abrogated or removed by way of constitutional amendment (see Indira
Gandhi at para. 39);
(iii) The courts can ensure that Parliament does not destroy the basic
structure of the FC. While the FC does not expressly refer to the
doctrine of a basic structure, what it means is that a statute is open to F
judicial scrutiny for violation of the provisions of the FC, both express
and the underlying principles that constitute the founding principles of
the FC (see Alma Nudo at para. 73);
(iv) Judicial power cannot be removed from the Judiciary and equally
G
cannot be conferred on other bodies in the absence of the constitutional
safeguards afforded to an independent Judiciary; non-judicial power
cannot be conferred by another arm of Government onto the Judiciary
(see Semenyih Jaya at paras. 54, 86 and 105; and JRI Resources at
para 17);
H
(v) The power of Parliament to make laws with respect to matters as
enumerated from the Federal or Concurrent Lists of the FC does not
mean that Parliament can enact law which is contrary to the entrenched
doctrine of the separation of powers or judicial power under art. 121 FC
(see JRI Resources at para. 19);
I
(vi) The FC is interpreted in light of its historical and philosophical context,
as well as its fundamental underlying principles comprising the structure
of the FC (see Indira Gandhi at paras. 29-30)

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A The Historical Background To The FC – The Reid Commission Report

[345] The learned SFC submitted that in order to comprehend the meaning
and content of the rule of law in the Federal Constitution, it is of relevance
to study the history and background of art. 4(1) FC. That takes us back to
the original draft of the FC, which was annexed to the Reid Commission’s
B
Report 1957 as the “Draft Constitution” (“Reid Draft Constitution”). The
original provisions were modified and shortened, bringing about the present
art. 4(1) FC.
[346] In relation to judicial power, it was reiterated, on behalf of the AG,
that Parliament could limit the remedy issued by the courts in the form of
C
judicial review or habeas corpus, by confining any challenge as to
constitutionality of a statutory provision, to procedural compliance of an
impugned decision.
[347] As the learned SFC put it, the issue was whether it comprises a basic
D structure of the FC that an aggrieved person is entitled to the fullest form of
remedy in challenging a public authority’s decision. This in turn called into
question whether it was a basic structure of the FC that the Judiciary enjoys
unlimited jurisdiction and unbridled powers when it comes to enforcement
of rights by way of judicial review.
E [348] In the original Reid Draft Constitution, draft art. 3 reflected the
import of the rule of law, and the marginal note reflected this. It comprised
a part of Part II of the Reid Draft Constitution relating to fundamental
liberties. The original draft art. 3 provided for the supremacy of the
Constitution over any law or Executive acts. It read as follows:
F 3. The Rule of Law
(1) This Constitution shall be the supreme law of the Federation, and any
provision of the Constitution of any State or of any law which is
repugnant to any provision of this Constitution shall, to the extent of the
repugnancy, be void.
G
(2) Where any public authority within the Federation or within any State
performs any Executive act which is inconsistent with any provision of this
Constitution or of any law, such act shall be void.
[349] The original art. 4 in the Reid Draft Constitution reads:
H 4. Enforcement of the Rule of Law
(1) Without prejudice to any other remedy provided by law:
(a) Where any person alleges that any provision of any written law is
void he may apply to the Supreme Court for an order so declaring
and, if the Supreme Court is satisfied that the provision is void, the
I Supreme Court may issue an order so declaring and, in the case of
a provision of a written law which is not severable from other
provisions of such written law, issue an order declaring that such
other provisions are void.

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126 Current Law Journal [2021] 4 CLJ

(b) Where any person affected by any act or decision of a public A

authority alleges that it is void because:
(i) the provision of the law under which the public authority acted
or purported to act was void, or
(ii) the act or decision itself was void, or
B
(iii) where the public authority was exercising a judicial or quasi-
judicial function that the public authority was acting without
jurisdiction or in excess thereof or that the procedure by which
the act or decision was done or taken was contrary to the
principles of natural justice,
C
he may apply to the Supreme Court and if the court is satisfied that the
allegation is correct, the court may issue such order as it may consider
appropriate in the circumstances of the case; ...
[350] Therefore it was originally envisaged that there be provision for the
rule of law and enforcement of the same, as set out in the original art. 3 and
D
art. 4 of the Reid Draft Constitution.
[351] These articles were amended and the original art. 4 removed because
it was concluded that “ ... it is impracticable to provide within the limits of
the Constitution for all possible contingencies. It is considered that sufficient
remedies can be best provided by the ordinary law.” (See Government E
White Paper “Constitutional Proposals for the Federation of Malaya.)
[352] In essence, it was contended on behalf of the Attorney-General that
the amendment to the original art. 4 as above, effectively circumscribed the
powers of the court such that remedies available to be issued by the court
were confined to that prescribed by laws enacted by Parliament. F

[353] It appears to me that it is not tenable to extract such a drastic

construction from the removal of the original art. 4. The removal of that
original draft art. 4 does not mean that the right to a remedy for a
transgression of the rule of law albeit in terms of a contravention of
fundamental rights as provided in Part II or elsewhere was taken away and G
given to Parliament instead. To my mind, that would result in a perverse
reading and construction of the progressive evolution of the FC.
[354] The preferable construction to be adopted is simply this: It was, at the
time, untenable and impractical to set out in the FC itself, the various
H
remedies for transgressions by the other arms of Government and public
bodies and the manner of procurement of such remedies. It was therefore
determined as a matter of practicality that the adjectival mode by which such
remedies could be procured would be determined and set out by Federal law.
That does not and cannot reasonably be construed to mean that contrary to
the rule of law, judicial powers or the remedies available for a transgression I
of fundamental rights were confined to legislation to be crafted entirely by
Parliament.

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A [355] More importantly, perhaps it is important to emphasise that there is

a difference between the concept of judicial review and the remedies
available in respect of judicial review. Semenyih Jaya and Indira Gandhi
comprise authority for the proposition that judicial review is a concept that
forms a part of the basic structure of the FC.
B
[356] However, remedies are separate and are found largely in ordinary law,
such as para. 1 to Schedule of the Courts of Judicature Act 1964. The
Legislature has the right to truncate remedies. But the fundamental concept
of judicial review or judicial scrutiny as enshrined in art. 4 FC cannot be
removed, abrogated or truncated.
C
[357] This would amount to thwarting access to justice at the threshold
stage.
Reading The Draft Reid Commission Report To Restrict Judicial Powers
– AG’s Submissions
D [358] SFC Liew Horng Bin however premised his submission for a
restrictive construction of the remedies available on the basis of the historical
records during the drafting stage of the FC. He submitted that insofar as
judicial power is concerned:
(i) The historical records of meetings show that the Judiciary was to be
E
completely independent of both the Executive and the Legislature and
that the Supreme Court should be vested with powers to decide
whether or not the actions of both Executive and Legislature are in
accordance with the Constitution;

F (ii) The initial draft on the “Judiciary” outlined the powers and
jurisdiction of the Supreme Court in item 60 while 61 and 62 set out
the composition powers and jurisdiction of the High Court;
(iii) At the 53rd Commission meeting it was agreed that there should be
a Supreme Court and instead of having a separate provision for the
G setting up of the High Court and its powers and jurisdiction, that
would be left for Parliament to decide whether or not to create a High
Court. The power and jurisdiction of the Supreme Court should
continue as it was then. That meant, according to the Reid
Commission Report that the jurisdiction of the courts was “within the
H Legislative powers of the Federation and subject to the express terms
of the federation agreement which provided for a Supreme Court
consisting of a High Court and a Court of Appeal, and where the
powers were determined by Federal law. That was reflected in
arts. 114(4), 118, 119(2), 122, 123, 124(1) and (2) of the Draft
Constitution;
I

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128 Current Law Journal [2021] 4 CLJ

(iv) Substantially, the same clauses were translated into the Constitutional A
Proposals for the Federation of Malaya. For the first time, art. 121
made mention of the vesting of the judicial power of the Federation
as being reposed in “a Supreme Court and such inferior courts as may
be provided by Federal law”;
B
(v) Article 121 was officially adopted in the Constitution of the
Federation of Malaya;
(vi) Following the formation of Malaysia, the Malaysia Act amended
art. 121 of the 1957 FC to establish High Courts such that each of the
High Courts should have unlimited original jurisdiction and such
C
appellate and revisional jurisdiction as may be provided by the
Federal law;
(vii) It was submitted that based on the historical context of judicial power,
it was the intention of the Reid Commission that the jurisdiction,
powers and procedures of the Supreme Court should continue in D
independent Malaya post-Merdeka. Further, it was submitted that the
“basic structure” inherent vis-a-vis the Judiciary was that jurisdiction
and powers conferred unto a court were matters purely within the
Legislative powers of the Federation. With the exception of the
Supreme Court, whose jurisdiction was expressly conferred by the
E
principal instrument the jurisdiction and powers of the courts were to
be determined by Federal law. Reference was made to cls. 14(1) and
(3) and 15 of the Malayan Union Order in Council 1946;
(viii) The conferral of the courts’ jurisdiction and powers by Federal law is
entrenched in our constitutional history such that it was accepted by F
the Reid Commission. This was not, it is contended contrary to the
separation of powers doctrine;
(ix) The Commission at their meeting on 10 October 1956 recognised the
principle of “non-justiciability” and expressed their view that matters
which were not enforceable in court should not be included. G
Preventive detention and emergency provisions were to be treated
narrowly. Major changes were introduced in the second draft and the
combined effect of those changes was that remedies for enforcement
of rights were to be proscribed by Federal law and those remedies may
be tightened or cutback in special circumstances; H
(x) However, the redrafted art. 2 was criticised and ultimately the
Commission removed the entire art. 2 and explained that on the issue
of the enforcement of the rule of law, the article was unsatisfactory and
was omitted on the ground that it was impracticable to provide within
the limits of the Constitution for all possible contingencies. I
Accordingly, it was held that sufficient remedies were best provided
by ordinary law;

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A (xi) It was submitted for the AG that the net effect of omitting the draft
art. 2 on the enforcement of rights is that there is no absolute right to
a full remedy. The type of remedy available, it is submitted is for the
Legislature to decide. This follows from the decision to defer the issue
of enforcement of a remedy of an aggrieved party to ordinary law;
B
(xii) It was then concluded by way of submission that such ouster clauses
are not per se constitutionally invalid, since what is sought to be ousted
is the availability of a remedy for the enforcement of rights and not
the exercise of judicial power. Limiting the scope and extent of
availability of remedies for the enforcement of rights by Federal law
C does not impinge on judicial power;
(xiii) Therefore, based on the drafting history of the FC, it was submitted
that following Semenyih Jaya, while the doctrines of the separation of
powers, independence of the Judiciary, rule of law, parliamentary
democracy and constitutional monarchy form a part of the basic
D
structure of the 1957 Constitution, the conferral of the courts’
jurisdiction and powers by Federal law is also a cornerstone of the FC;
(xiv) There is no departure from Semenyih Jaya. Rather it is the scope of
enforcement of fundamental rights which is in issue here and following
the Reid Commission drafting history, such remedies should be
E
prescribed by “ordinary law”, in this case s. 15B of POCA.
[359] Having considered the submissions on behalf of the AG, I am of the
view that:
(i) As stated above, it is important that the distinction between the
F concept of constitutional review is not confused with the remedies
available for judicial review. The principle or doctrine of judicial
review is an essential element in the milieu of the FC. It is an
inextricable component of art. 4(1) because the Judiciary cannot fulfil
its function under that article unless judicial review is employed. So
G equating the doctrine with the remedy, is with respect, misconceived;
(ii) The utilisation and reliance on the historical aspects of the Reid
Commission’s meetings and formulations, must, with the greatest
respect, be treated with the appropriate circumspection. While all
historical records and the chronology of the various versions of the
H draft Constitution reflect the stages of thought and intention of the
crafters, such evolution cannot displace or override the clear
provisions of the FC as they stand today. Nor can it be said
conclusively that a consideration of these records points with finality
to the construction that the AG seeks to place on judicial power and
I the extent of remedies available under the FC;

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130 Current Law Journal [2021] 4 CLJ

(iii) The FC as it stands today must be read in accordance with its A

provisions as objectively construed in the context of the nation as a
constitutional monarchy premised on parliamentary democracy. It
must be construed in a holistic manner. In doing so, it is apparent that,
as Professor Shad Saleem Faruqi frames it, the aim of our legal order
was a democratic Government under a fair and just system of laws. B
Parliament is not supreme;
(iv) As the FC now stands, it does not envisage a law that is unjust,
arbitrary, unreasonable, oppressive or disproportionate. (See Alma
Nudo). Accordingly the courts and judicial power subsist to ensure that
in accordance with the guarantee of the FC, both the substantive and C
procedural content of our laws should ensure that there is no
transgression of the limits of the FC. Article 149, while authorising the
suspension of fundamental rights in arts. 5, 9, 10 and 13, must still
comply with arts 4, 8, 121 and 151. The historical background of the
Reid Commission Reports did not derogate from these principles. On D
the contrary, they expressly provided for the same but determined
subsequently that as a single document could not encompass the
numerous and various reliefs required for transgressions of the FC,
this was best left to be provided for in ordinary law. This did not
however in any way detract from the doctrine of the separation of E
powers and rule of law which require the Judiciary to act as a check
and balance against the other two arms of Government. To that extent,
judicial power and accordingly remedies issued by the Judiciary
cannot be denuded, limited or restricted by ordinary or Federal law;
(v) Following the submissions of the AG, it would appear that as remedies F
for the enforcement of the transgression of fundamental rights would
be left to ordinary law, Federal law therefore somehow circumscribed
the Judiciary’s ability to frame remedies;
(vi) The necessary corollary of such a submission would be that
Parliament that enacts Federal law would be at liberty to frame the G
requisite remedies available and circumscribe those remedies as it
sought fit, notwithstanding art. 121 and art. 4. This would render both
arts. 121 and 4 nugatory and more importantly would effectively
restrict the ability of a court to provide remedies to only that
prescribed by Parliament; H
(vii) That in turn would effectively mean that parliamentary sovereignty
prevails, rather than constitutional supremacy because judicial powers
would be curtailed by legislation enacted by the Legislature. In the
instant case, what is in issue is the jurisdiction of the courts to examine
the decision of the Board under s. 15B of POCA. If the AG’s I
submissions are taken to their logical conclusion, it would follow that
as the courts’ power to issue remedies is confined to Federal law, it

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A would not be able to scrutinise or afford any remedy to detainees

under POCA, because the right to provide any such remedy is
curtailed by s. 15B POCA. As the courts’ powers and jurisdiction is
restricted to Federal law, then it necessarily follows that the court’s
remedies must be restricted to procedural deficiencies as envisaged
B under s. 15B;
(viii) That would, with the greatest respect, run awry of the substantive
effect of both arts. 4 and 121 FC, as has been explained exhaustively
above;
(ix) The construction placed on the historical chronology of events leading
C
up to the FC by the AG is somewhat strained, in an effort to support
the proposition that remedies available under specific legislation,
particularly legislation enacted under art. 149 FC, are circumscribed
by Federal law. As pointed out earlier, the amendments to the Reid
Commission’s Report particularly in relation the removal of art. 4 FC
D
does not lend itself to the conclusion that remedies for transgressions
of the FC would be determined and limited by Federal law;
(x) Any such construction would inevitably and logically amount to an
incursion into judicial powers, contrary to the submission of the
learned SFC. It is artificial to contend on one hand that judicial power
E
remains untrammelled by espousing Semenyih Jaya, Indira Gandhi and
Alma Nudo, while maintaining that remedies available for the courts
to issue on a transgression of constitutionally protected rights are
circumscribed by Federal law, ie, Parliament;
F (xi) On the contrary, it does infringe the doctrines of the separation of
powers, constitutional supremacy and ultimately the rule of law. It
would amount to mere lip service to the trilogy of cases to state that
there is adherence to the same, while at the same time effectively
stating that the powers of the courts are circumscribed by Federal law.
G [360] For these reasons, I am, with respect, unable to accede to, or accept
the submissions of the learned SFC on this issue. However, these submissions
bring to the fore yet again, despite the trilogy of cases, the ambit and extent
of judicial power under the FC, particularly in light of the 1988 amendment,
which many read to amount to an abrogation of judicial power.
H Judicial Power In The Federal Constitution Under Article 121 FC And
Article 4(1) FC
[361] Semenyih Jaya and Indira Gandhi, as discussed above categorically
stipulate that the 1988 amendment did NOT have the effect of eroding or
removing judicial power. However, prior to Semenyih Jaya, this court in its
I
majority judgment in PP v. Kok Wah Kuan [2007] 6 CLJ 341; [2008] 1 MLJ
1 (“Kok Wah Kuan”) took the position that judicial power had indeed been
eroded and was circumscribed to, and by, Federal law. This conclusion was
reached on a literal reading of the express provisions of art. 121(1) FC.

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[362] The strong dissenting judgment of Richard Malanjum FCJ (later CJ) A
is renowned. It pointed out that the inherent power of the superior courts,
being inherent powers, could not be eradicated or made subordinate to
Parliament such as to render the Judiciary a mere agent of Parliament. This
would naturally run awry of the doctrine of the separation of powers and the
rule of law. B

[363] The trilogy of cases, namely Semenyih Jaya, Indira Gandhi and Alma
Nudo legally analysed and explained why a construction of the 1988
amendment leading to an erosion of judicial power was wholly untenable.
These cases present the current and trite position, namely that judicial power
is as it always was, and is certainly not circumscribed in the exercise of its C
powers by Federal law.
[364] In these cases, the focal point of concentration in the course of the
legal analysis was art. 121(1) FC. Having set out the scope and ambit of
art. 4(1) FC above, it is my considered view that in construing judicial power
D
as it subsists in the FC, the starting point should be art. 4(1) FC.
[365] The legal rationale for this lies in the scope and ambit of art. 4(1) FC.
It is in Part I of the FC and described as the law of the Federation. In its
singular form, it stipulates that the FC is the supreme law, thereby defining
and indubitably guaranteeing constitutional supremacy as the law of the land.
E
The shoulder note further validates constitutional supremacy, by stipulating
once again that the FC is the supreme law.
[366] However, that is not all. To give effect to constitutional supremacy,
art. 4(1) FC allows the striking down of any law that is inconsistent with the
FC. These words hold within them, and encompass, both the rule of law and F
the doctrine of the separation of powers.
[367] Any discursive and rational construction of the scope and ambit of
judicial power as expressed in art. 121 FC must therefore commence with
art. 4(1) FC, as the basis for construing the scope and ambit of judicial power.
From art. 4(1) FC it is clear that judicial power extends to striking down G
Federal law that is inconsistent with the FC.
Article 121 And Article 4 FC – Harmonious Construction
[368] Article 121(1) FC must therefore be construed harmoniously with
art. 4(1) FC. The two provisions cannot be construed so as to give rise to a H
significant and fundamental difference relating to the jurisdiction and ambit
of judicial power. The seeming anomaly that arises if a literal reading of the
express words of these two articles is considered is this.
[369] Article 4(1) FC allows the Judiciary to strike down legislation ie,
Federal law that is inconsistent with the FC. However art. 121(1) FC, on a I
literal reading, appears to suggest that judicial power is circumscribed by
and/or under Federal law.

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A [370] The latter proposition means in effect that the powers of the Judiciary
are established and delineated by Federal law as enacted by Parliament. That
has the effect of:
(i) abrogating inherent judicial powers including the power to scrutinise
legislation for constitutional validity;
B
(ii) ignoring completely the effect of art. 4(1) FC;
(iii) effectively imposing a constitutional system of parliamentary supremacy
as opposed to constitutional supremacy
[371] With the greatest of respect, such a construction is wholly untenable.
C
A harmonious construction of judicial power as contained in these two
articles would entail ensuring the doctrines of a separation of powers and the
rule of law remain as foundational features of judicial power.
[372] Therefore, in construing art. 121 FC in relation to the phrase “ ... shall
D have such jurisdiction and powers as may be conferred by or under Federal
law” the only harmonious meaning that can be accorded to those words is
that the specification, description and arrangement of the powers of the
courts is to be enacted by Parliament. However, any such description or
listing or setting out of the powers of the various courts in the hierarchy of
the judicial arm of Government by Parliament, cannot in any manner
E
derogate the powers of the courts to act as a check and balance vis-a-vis the
Executive and the Legislature, as enshrined in art. 4(1) FC.
[373] Put another way, Parliament under art. 121 may enact laws specifying,
arranging and describing the powers of the courts, which are not detailed in
F the FC, in accordance with the foundational principles of the rule of law and
separation of powers as set out in art. 4(1) FC.
[374] To read art. 121 FC in any other manner would be to do violence to
the basic and foundational structure of the FC. In order to retain its role
under art. 4(1) FC, art. 121(1) FC cannot be given the literal reading adopted
G in the majority decision in Kok Wah Kuan and since overruled in the trilogy
of cases of Semenyih Jaya, Indira Gandhi and Alma Nudo.
[375] The present case serves to cement the position that the powers of the
court were never abrogated or removed by the 1988 amendment, given the
continued existence of art. 4(1) FC throughout, thereby enabling the courts
H to continue to exercise their powers to strike down Federal law where it was
inconsistent with the FC.
Meaning Of “Law” In Article 121 FC And Article 4 FC
[376] The second line of reasoning that supports such a construction is that
I “law” or “Federal law” as enunciated in art. 121 FC must have the same
meaning as “law” in art. 4(1) FC. If not so, and the word “law” in both

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134 Current Law Journal [2021] 4 CLJ

articles carried different meanings, there would be confusion and the FC A

would be anomalous, unpredictable and unreliable. Such a jarring
construction is again unsound.
[377] And “law” in art. 4(1) FC must refer to “law” that is valid under the
FC. It follows that “law” under art. 121 FC must also be law that is valid
B
under the FC. That in turn means that any “Federal law” as stated in art. 121
FC can be constitutionally challenged to ensure that it is constitutionally
valid under art. 4(1) FC. And only the courts can ascertain this issue. So the
courts will only enforce, recognise and give effect to law that is
constitutionally valid.
C
[378] It follows that Parliament cannot enact any law and expect the courts
to exercise their judicial power in accordance with such law, no matter its
content and no matter whether it conforms to the FC or not. So the courts
only act in accordance with constitutionally valid Federal law, where the
role of ascertaining constitutional validity falls on them.
D
[379] Again, therefore art. 121 FC cannot be construed to mean that the
Judiciary is bound to act in accordance with any Federal law enacted. As
such, the 1988 amendment did not result in an erosion of powers at all, even
if that was the intent. Objectively viewed, given art. 4(1) FC, judicial powers
remained intact.
E
[380] As stated earlier, the fact that the courts continued to retain the power
to test the constitutional validity of legislation post-1988, and did in fact do
so, lends greater force to this construction. The fact that the Judiciary
declined to do so in cases such as Nasharuddin and Lee Kew Sang does not,
with respect, support the proposition that the courts were bound to give effect F
to ouster clauses in relation to preventive detention.
[381] In light of the foregoing construction that judicial power under the FC
remains and has always remained intact, s. 15B POCA cannot possibly have
the effect of divesting the courts of their power to scrutinise legislation and
Acts following from such legislation to ensure that they are constitutional. G

[382] However, it must be noted that the scope and ambit of art. 4(1) in
relation to s. 15B POCA is limited. The effect of s. 15B being declared
unconstitutional, is that it allows the courts to judicially scrutinise the
decision in issue, applying the full powers of judicial review available to a
court of law exercising its supervisory function. It does not automatically H
follow that the act or decision of the Board is invalid or void.
[383] It may well be the case that the challenge is unsuccessful and that the
acts or decisions made within the particular legislation or “law”, in this case
POCA, is found to be valid on administrative law principles.
I

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A [384] But with ouster clauses, we are not dealing with the constitutionality
or otherwise of legislation on its substantive merits. We are dealing with the
right to challenge the constitutionality of legislation. If ouster clauses were
allowed to prevail then that right of challenge in art. 4(1) FC would be
eroded.
B
[385] To that extent art. 4(1) is the fountainhead of the FC and reflects the
essence of democracy in that it comprises the fundamental right of the people
of this nation to guard against arbitrary, invalid or wrongful Legislative and
Executive acts or omissions.
The Adjectival Mode Of Challenge
C
[386] To complete the picture on the ambit and scope of art. 4(1) FC, an
ancillary but important issue is how the challenge in relation to the
constitutionality of “law” is made. I have concluded above that in keeping
with the doctrine of the rule of law as expressly espoused in art. 4(1) FC, it
D is Judiciary or the courts that make the determination of whether “law” is
consistent or inconsistent with the FC.
[387] The fact that art. 4(1) FC does not descend into the particulars of how
such challenge is brought in the courts, in no way detracts from a citizen’s
substantive legal right to do so. In point of fact, the mode of challenging the
E constitutionality of legislation (or statutory provisions in such legislation) is
set out in the Courts of Judicature Act 1964 (“CJA”).
[388] In other words, the CJA affords the adjectival remedy to give effect
to art. 4(1) FC. Section 25 of the CJA provides for the additional powers of
the High Court which include the right to issue prerogative writs such as
F certiorari or judicial review, mandamus, habeas corpus and such other
proceedings as may be necessary to give effect to the right to challenge the
validity of legislation. These common law remedies are given effect by
inclusion in the CJA. Habeas corpus is another means of judicial review.
Additionally, the Criminal Procedure Code (CPC) in s. 363 also affords the
G adjectival basis for the bringing of habeas corpus applications.
[389] Therefore, the prerogative writs such as judicial review or habeas
corpus comprise the mode or vehicle through which art. 4(1) FC is given life
or effect. If these procedural or adjectival modes of challenging the
constitutionality of legislation are not allowed, then art. 4(1) FC would be
H rendered nugatory or ineffectual. These prerogative writs such as judicial
review comprise the lifeblood/pacemaker of art. 4(1) FC. Article 128(2) FC
and s. 84 CJA provide other means of challenge of the constitutionality of
legislation.
[390] Given the actuality of art. 4(1) FC and the adjectival provisions which
I
allow for its enforcement, it follows that legislation or statutory provisions,
such as s. 15B POCA which purports to preclude or oust judicial review or
the jurisdiction of the courts is null and void.

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Constitutional Supremacy Versus Parliamentary Sovereignty A

The Position In Earlier Case-Law

[391] The arguments articulated above have not been considered or raised
in the not inconsiderable history of case law in this jurisdiction on preventive
detention. A good starting point for a consideration as to why or how this B
came to be, is borne out by the decision in Karam Singh v. Menteri Hal Ehwal
Dalam Negeri (Minister Of Home Affairs), Malaysia [1969] 1 LNS 65; [1969]
2 MLJ 129; 1 MLRA 412 (“Karam Singh”).
[392] This case is often cited primarily for the purposes of determining
whether a subjective or objective test should be utilised in determining C
whether Ministerial discretion has been exercised correctly or otherwise in
the course of judicial review. However, Karam Singh is of importance in the
present context, because it traces the history of the path taken by our courts
in adjudicating on preventive detention.
[393] The path taken by our courts has generally been that of examining the D
relevant statute within its confines, with a view to ascertaining or interpreting
parliamentary intent. This accords with English administrative law
principles. This is exemplified in Karam Singh.
[394] In that case, in the course of reviewing Ministerial discretion, there
E
was, with the greatest of respect, little or no consideration given to the
fundamental difference between constitutional law in Malaysia and the
United Kingdom. The stark and essential difference, often-cited, but less
appreciated as stated at the outset, is that the FC reigns supreme in Malaysia
while Parliament is supreme in the United Kingdom.
F
[395] That single but immeasurable difference makes Legislative action
sovereign in the United Kingdom, but not in Malaysia. Our FC affords the
inalienable right to the citizens of Malaysia to challenge enacted legislation
in our courts, with a view to striking it down for inconsistency with the FC.
No comparable right subsists in British constitutional law.
G
[396] The general position taken by our courts in earlier case law, was to
defer to Executive policy decisions on national security grounds, as evident
in Karam Singh, which dates back to 1969. In that case, the then Supreme
Court adopted the now discarded and overruled majority decision of the
House of Lords in Liversidge v. Anderson [1942] AC 206. The reasoning there H
was that as long as the detaining authority was subjectively satisfied that the
detention was necessary to ensure that the detainee did not act in a manner
prejudicial to the country’s security, it was sufficient to deem the exercise of
discretion unreviewable.
I

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A [397] The rationale was that security matters fell within the purview of the
Executive, which arm is therefore best positioned to determine these matters,
and certainly not judges. This is exemplified by Azmi LP’s reasoning
(affirming Lord Macmillan’s judgment in Liversidge v. Anderson [1942] AC
206 at 253):
B ... how could a court of law deal with the question whether there was a
reasonable cause to believe that it was necessary to exercise control over
the person proposed to be detained, which is a matter of opinion and
policy, not of fault? A decision on this question can manifestly be taken
only by one who has both knowledge and responsibility which no court
can share.
C
[398] The adoption of this stance meant that the courts here, like the United
Kingdom, effectively accepted the legislation passed by Parliament as being
absolute, and incapable of scrutiny from a constitutional aspect. This meant
in turn that the issue of ascertaining whether the decision or legislation fell
D within the purview of the Constitution, notwithstanding that it had been
enacted under art. 149, was never considered.
[399] As pointed out by Emeritus Professor Shad Saleem Faruqi, the English
concept of parliamentary supremacy “ ... wrongly found its way into many
Commonwealth courts which developed a reluctance to review an act of
E Parliament on the ground of unreasonableness, lack of proportionality or
harshness ... .” (see for example Andrew Thamboosamy v. Superintendent Of
Pudu Prisons, Kuala Lumpur [1976] 1 LNS 5; [1976] 2 MLJ 156).
[400] However, parliamentary supremacy has no place in Malaysia as
expressly stipulated in Ah Thian v. Government of Malaysia [1976] 1 LNS 3;
F [1976] 2 MLJ 112. All laws enacted by Parliament are subject to judicial
review by reason of arts. 4(1), 121, 128 and 162(6) FC. Notwithstanding
Ah Thian, Malaysian jurisprudence particularly in relation to preventive
detention has remained under the influence of the British doctrine of
parliamentary supremacy. This is borne out by our case-law which has
G approached the review of ministerial acts under preventive detention purely
from an administrative law perspective, rather than from that of
constitutional validity under the FC. The conceptual distinction between
judicial review under constitutional law as opposed to the administrative law
context has not been applied or undertaken.
H [401] As a consequence, the provisions in the FC, which clearly envisage
that fundamental liberties as set out in Part II of FC require protection, were
somewhat abrogated at best, or simply ignored at worst. The net result was
that there were no effective legal checks on Legislative powers or the exercise
of Executive power, which is contrary to art. 4(1) FC, our express
I constitutional provision on the rule of law.

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[402] Matters progressed further down this path when Parliament amended A
the Internal Security Act 1960 in 1989 to insert an ouster clause namely
s. 8B(1), to restrict judicial review to only matters relating to procedural
non-compliance. The Executive was further immunised from any form of
check and balance.
B
[403] In like manner, such ouster clauses found their way into other
preventive detention legislation such as POCA.
[404] In Nasharuddin, the rationale and reasoning adopted in Karam Singh
was affirmed by Steve Shim FCJ in this court in the following terms
(at p. 95 (CLJ); p. 406 (MLRA)):
C
... In my view, the words in s. 8B are explicit. They are clear and precise.
They are exclusionary in nature and effect. The intention of Parliament
is unmistakably obvious ie, that the jurisdiction of the court is to be
ousted in terms stated in s. 8B. In the premises, adopting the test taken
by the Federal Court in Sugumar Balakrishnan, the court must give
expression to Parliament’s intention. Section 8B is therefore intended to D
exclude judicial review by the court of any act done or any decision made
by the Minister in the exercise of his discretionary power in accordance
with the ISA except as regards any question on compliance with any
procedural requirement relating to the act or decision in question.
Given the proper interpretation to be placed on s. 8B what is the position E
in the instant case? Here, there is evidence that the impugned order was
issued by the relevant Minister. There is also evidence that he had issued
it in the exercise of his discretionary power under or in accordance with
s. 8(1) of the ISA. Furthermore, evidence shows that all the necessary
procedural requirements had been complied with by the Minister in
issuing the detention order. Indeed, the respondent made no complaint F
on this score.
[405] The twin approaches found in Nasharuddin and other case law in this
area, all deal with the interpretation of parliamentary intent within the
legislation under consideration. There is no consideration of the
constitutional aspects of the impugned legislation, which is permissible under G
the doctrine of constitutional supremacy in our FC.
[406] This is not permissible under English judicial review jurisprudence,
which is premised on parliamentary sovereignty and must therefore work
within the confines of ascertaining or interpreting parliamentary intent. The
H
examination is confined to whether Ministerial discretion has been exercised
correctly or ultra vires the legislation.
[407] The interpretive powers of the courts are focused on ascertaining the
intent of Parliament when enacting the law and determining whether the
Minister has acted outside the given mandate. That is the reason why the I
English decisions are based on whether a Minister has exercised his
discretion ultra vires the Act.

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A [408] In other words, the courts undertake the function of ascertaining

whether Ministerial acts are effected in accordance with parliamentary
intent. There can be no consideration of whether the legislation or the
Executive act is itself fundamentally constitutional. The ultra vires theory
only allows the courts in that jurisdiction to ascertain whether parliamentary
B intent as provided in the legislation has been given effect.
[409] Therein lies the difference between our jurisdiction and that of the
United Kingdom. It is open to the courts in this jurisdiction to not only
examine the exercise of the Executive discretion but to also examine and
declare void, if necessary, legislation or statutory provisions that purport to
C restrict such a right in a manner inconsistent with the FC. Ultimately, the
purpose of art. 4(1) FC is to ensure that both procedurally and substantively,
the underlying legislation and the relevant statutory provisions are
constitutionally enacted, and secondly whether the exercise of Ministerial
discretion is constitutionally exercised, or exercised in accordance with
D administrative law principles.
[410] In doing so, the courts are bound to balance the fundamental liberties
accorded in Part II FC against the national security needs of the country. As
stated earlier, it may well be that legislation is ultimately found to be
constitutional, as many of the fundamental liberties are effectively suspended
E in relation to such legislation. However, the examination process involves a
consideration of both constitutionality as well as the “vires” of the Ministerial
discretion.
[411] Both access to justice and adherence to the rule of law are ensured in
this jurisdiction under the FC.
F
[412] Ultimately, constitutional supremacy has a far wider reach in terms of
checking Governmental power than parliamentary sovereignty as practised
in the United Kingdom. As such, these principles as contained in the FC,
should form the normative basis for judicial review rather than the limiting
jurisprudence of the United Kingdom. It is in this context that the history of
G
our case law has failed to differentiate between two disparate systems of
jurisprudence.
[413] The consequence of this disparity is that in interpreting legislation, our
courts are bound to give effect to constitutional provisions. This is
H particularly so when a statute is capable of more than one construction. This,
in turn, means adopting an interpretation that seriously considers and gives
weight to the need to protect human rights and adhere to the rule of law. The
provisions seeking to derogate from fundamental liberties should be
restrictively construed, such that any derogation must be stated in clear and
unequivocal terms.
I

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[414] The fact that art. 149 FC allows for the abrogation of certain A
constitutional rights including art. 5(1) FC does not mean that the court
cannot adopt an interpretation which seeks to intrude minimally on such
fundamental liberties. Article 149 is not a licence to forfeit fundamental
liberties altogether.
B
[415] Legislation enacted pursuant to art. 149 FC should defer to the general
tenor of the FC, which enshrines the rule of law, and to that extent recognises
that there are express limits on Legislative and Executive power. Adopting
a literal approach to preventive detention legislation would allow for
arbitrary and unfettered discretion cannot be right.
C
[416] Nothing stated here should be construed as in any manner demeaning
the immense importance of security measures deemed necessary by the
Legislative and Executive arms. Legislative and Executive responsibility is
acknowledged by the fact that the constitutionality of such legislation is a
difficult hurdle to cross.
D
Lee Kew Sang and Other Case-Law
[417] As alluded to earlier, Parliament in 1989 sought to immunise
Executive or ministerial acts under introducing wide-ranging ouster clauses
precluding the courts from reviewing preventive detention.
E
[418] This court in several decisions held that the ouster clauses were valid
and enforceable. Of primary relevance is the case of Lee Kew Sang. This case
is of considerable importance because it is the basis on which all subsequent
habeas corpus applications relating to preventive detention have and continue
to be decided.
F
[419] The appeal there involved a consideration of Emergency (Public
Order and Prevention of Crime) Ordinance 5, 1969, but in the course of
doing so, the Federal Court speaking through Abdul Hamid Mohamad FCJ
(later CJ) considered the provisions of other preventive detention legislation
including the then Internal Security Act 1960 and the Dangerous Drugs
G
(Special Preventive Measures) Act 1985 (“DDA (SPM)”). Consideration
was given to the ouster clause in ss. 7C and 7D of the Emergency (Public
Order and Prevention of Crime) Ordinance 5, 1969 (since amended)
precluding judicial review save on the grounds of procedural non-
compliance.
H
[420] In setting out a detailed chronology of cases dating from the 1960s
until 2005, the court dealt with two major issues – firstly, the issue of
whether a subjective or objective test ought to be adopted in reviewing the
exercise of Executive or police discretion in preventive detention cases;
secondly, the effect of ouster clauses as set out in ss. 7C and 7D of the
I
Emergency (Public Order and Prevention of Crime) Ordinance 5, 1969 and
other similar legislation. It is the second aspect that is of relevance at this
juncture.

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A [421] With regard to ouster clauses, it was pointed out that after the
amendment, there ought to have been no grounds on which the Executive
discretion to order preventive detention would be challenged save for
non-compliance with procedural requirements. Surprise was expressed that
scant respect was afforded to the amendments as in several cases, the grounds
B of challenge still sought to rely on substantive grounds such as mala fides.
[422] Abdul Hamid Mohamad FCJ held that the courts were bound to give
effect to the amendments. The ratio of the case in relation to ouster clauses
is contained in the following paragraph:
In our view, courts must give effect to the amendments. That being the
C
law, it is the duty of the courts to apply them. So in a habeas corpus
application where the detention order of the Minister made under s. 4(1)
of the Ordinance or, for that matter, the equivalent ss, in ISA 1960 and
DD(SPM) Act 1985, the first thing that the courts should do is to see
whether the ground forwarded is one that falls within the meaning of
D procedural non-compliance or not. To determine the question, the courts
should look at the provisions of the law or the rules that lay down the
procedural requirements. It is not for the courts to create procedural
requirements because it is not the function of the courts to make law or
rules. If there is no such procedural requirement then there cannot be
non-compliance thereof. Only if there is that there can be non-compliance
E thereof and only then that the courts should consider, whether on the
facts, there has been non-compliance. (emphasis added)
[423] And that indeed has been the approach adopted by the courts since
2005 in relation to all preventive detention law. From the earlier analysis,
relating to art. 4(1) FC, it is apparent that in Lee Kew Sang this court did not
F consider that the FC itself allows the ouster clause to be challenged as it
purports to preclude the courts from undertaking any form of review of the
exercise of Executive discretion, save in terms of procedural non-
compliance. The court instead took the position that where law has been
enacted by Parliament, then it is incumbent upon the courts to follow the
G law, without question.
[424] In so concluding, no account was taken of the role of the court under
the FC as comprising the arm of Government that provides checks and
balances for both Legislative and Executive action or omissions. Again, it is
stressed that the mere fact of challenge does not mean unequivocally that
H legislation or a particular statutory provision will be held null and void. On
the contrary, the provision might well be found to be constitutional,
particularly in relation to legislation enacted pursuant to art. 149 FC, where
infringement of several fundamental liberties does not in itself render
legislation null and void, in the interests of national security.
I

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[425] In light of the fact that this court in Lee Kew Sang failed to consider A
or give effect to art. 4(1) FC, I am of the view that decision is per incuriam.
In my view, it is necessary for this court to depart from the decision in
Lee Kew Sang as it gives effect to the validity and constitutionality of ouster
clauses generally. That in my respectful view is erroneous.
B
[426] In Lee Kew Sang, there was a failure to point out to this court that
unlike the United Kingdom, the challenge to ss. 7C and 7D of the Emergency
(Public Order and Prevention of Crime) Ordinance 5, 1969 was not merely
subject to an interpretive function to ascertain and give effect to Parliament’s
intent. This is because in the United Kingdom, Parliament being supreme,
the Judiciary’s role is different, and confined to interpretation of the ouster C
clauses.
[427] Such interpretation is undertaken in that jurisdiction by giving such
clauses a very narrow and confined meaning, so that that any attempt to oust
the jurisdiction of the court must be absolutely clear. When these interpretive
D
principles are applied in this jurisdiction, the necessary result is that prima
facie, the jurisdiction of the court to undertake judicial review (as defined in
those sections) is precluded.
[428] But to apply those interpretive principles alone, is inherently flawed
in the context of our jurisdiction, where the Constitution is supreme. The
E
validity and constitutionality of those statutory provisions has to be
measured against the provisions of the FC.
[429] Having done so, it is undisputable that art. 4(1) FC carries the right
of review of legislation to determine the constitutionality of the same.
[430] To reiterate therefore, any statutory provision enacted with a view to F
ousting the court’s jurisdiction to determine the constitutionality of a
provision, infringes art. 4(1) FC itself. Such a transgression renders any such
statutory provision null and void. The right of challenge of enacted
legislation cannot be ousted. For this reason, it is again apparent that s. 15B
POCA is null and void. G

The Approach To Be Adopted

[431] What then is the correct approach to be adopted when reviewing
preventive detention legislation in light of ouster clauses as contained in
s. 15B POCA? H
[432] In determining the approach to be adopted, it is instructive to refer to
two recent decisions from other jurisdictions that reflect the contemporary
approach to ouster clauses:
(i) The decision of the UK Supreme Court in R (On The Application Of
I
Privacy International) v. Investigatory Powers Tribunal And Others [2019]
UKSC 22 (“Privacy International”); and

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A (ii) The decision of the Singapore Court of Appeal in Nagaenthran v. PP

[2019] SGCA 37.
Privacy International
[433] Privacy International concerned the Investigatory Powers Tribunal
B (“IPT”) a special tribunal established under the UK statute known as the
Regulation of Investigatory Powers Act 2000 (“RIPA”) with jurisdiction to
examine the conduct of the intelligence services. Section 67(8) RIPA
provides:
Except to such extent as the Secretary of State may by order otherwise
C provide, determinations, awards, orders and other decisions of the
Tribunal (including decisions as to whether they have jurisdiction) shall
not be subject to appeal or be liable to be questioned in any court.
[434] The issue before the courts was whether s. 67(8) ousted the court’s
power to review the IPT’s decision on the ground of error of law. By a
D 4-3 majority, the Supreme Court held that it did not. However, it was held
that s. 67(8) would be effective in ousting the court’s power to review the
IPT’s decision on errors of fact even those going to jurisdiction. Two major
points may be gleaned from this judgment which emanates from a jurisdiction
governed by the doctrine of parliamentary supremacy:
E First, the limit of Parliament’s power to exclude review is ultimately determined
by the rule of law:
(i) The scope of judicial review should be no more and no less than is
“proportionate and necessary” to maintain the rule of law. Not
every case requires the same level of scrutiny, all depends on the
F
circumstances (see paras. 92-96, and 132);
(ii) Where the form of an ouster clause satisfies such a test, it will be
held to be effective. A limited scope of judicial review can be
justified as providing a sufficient and proportionate level of
protection in some cases;
G
(iii) It is for the courts, not the Legislature to determine the limits set by
the rule of law to the power to exclude review. The court can deny
the effectiveness of an ouster clause by applying the rule of law. It
is ultimately for the court to determine the extent to which an ouster
H clause should be upheld (paras. 123 and 131) and
(iv) Consistent application of the rule of law requires that the law
applied by a specialist tribunal is not developed as a “local law” in
isolation but conforms to the general law of the land. Since legal
issues decided by the IPT may have implications beyond its remit,
I the rule of law requires its errors of law to be susceptible to review
in appropriate cases (para. 139);

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Secondly a more flexible and pragmatic approach is required to determine the A

scope of judicial review:
(i) The courts have not adopted a uniform approach, but have been free
to adapt or limit the scope and form of judicial review. This is to
find an appropriate balance between respecting Legislative
B
Legislature on one hand and upholding the rule of law on the other
(para 130);
(ii) In determining the extent to which an ouster clause should be
upheld, the court should have regard to the purpose and statutory
context, and the nature and importance of the legal issue in question
C
(para 134);
(iii) What is required is a more evaluative approach guided by certain
fundamental principles. A relevant factor is “whose relative opinion
on the question should be held to be authoritative” (paras 83-84).
[435] It is apparent from the foregoing that despite Parliament being D
supreme in the UK, the courts have adopted a robust stance in holding that
it is for the courts and not the Legislature to determine “the limits by the rule
of law to the power to exclude review.” In short, the courts will adhere to
the rule of law and in appropriate cases hold that the rule of law precludes
the exclusion of judicial review. E

[436] Under our FC, the Judiciary has been accorded specific powers under
art. 4 FC to undertake the exercise of judicial review, when a challenge is
made to the constitutionality of a law. Far greater powers have been accorded
to the courts in this jurisdiction. And this is ultimately to ensure compliance
with the rule of law. If the UK, despite being a jurisdiction where Parliament F
is supreme, can determine that even Parliament is subject to the rule of law,
what more in the context of our jurisdiction where such powers have been
expressly provided under art. 4 FC (and the adjectival mode of doing so
provided under the CJA as well as the CPC).
G
[437] However, it is equally important to note that any such judicial review
that is undertaken ought to be no more or no less than is proportionate and
necessary to maintain the rule of law in the context of the statute or statutory
provision in issue. What this means in the present context of s. 15B POCA
is that the courts must circumscribe their powers of judicial review to ensure
that the courts do not usurp or seek to substitute their decisions in place of H
that of the Board. To that extent, it is the legality of the decision in issue that
is subject to judicial scrutiny. This means that the Board’s decision is
authoritative unless it is found to be made with mala fides or for a collateral
purpose. Further, it is also open to judicial scrutiny on the available bases
for judicial review in this jurisdiction, namely illegality, irrationality and I
procedural impropriety (which already forms a basis). A decision would also
be subject to judicial review where it is premised on an illegal basis.

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A [438] The extent of judicial scrutiny will depend on the facts of each
particular case, but the courts should restrain themselves from intervening on
the basis of the factual merits of the Board’s decision.
Departure From Anisminic
B [439] The third aspect of Privacy International that is of importance is that the
majority departed from the famous Anisminic approach to ouster clauses. In
Anisminic, the position adopted was that only errors of law that took the
tribunal outside its jurisdiction would render the determination a nullity. Not
all errors of law render a determination a nullity (see paras. 48-50). The UK
Supreme Court went on to hold that the approach in Anisminic is “highly
C
artificial” and “somewhat insulting” with an “obscure” conceptual basis.
The discussion on ouster clauses needs to move beyond the Anisminic
framework. The proper approach should not be based on “somewhat
technical debates” on “elusive” concepts such as nullity and ultra vires
(see paras. 79, 82, 99, 128, 129 and 132).
D
[440] This aspect of the decision in Privacy International is of importance
because cases in this jurisdiction have routinely relied on Anisminic to
ascertain the validity of ouster clauses and in their general approach to
decisions sought to be quashed. It is apparent that with the UK Supreme
Court itself departing from Anisminic on the basis that it is somewhat
E
technical and artificial to be mired in debates about errors of law going to
nullity et cetera, it is time indeed for adjudication on judicial review in this
jurisdiction to cease to rely so wholly on Anisminic and the principles set out
there.
F [441] In our jurisdiction, the foremost consideration is the constitutionality
of the statutory provision or statute given the existence of art. 4 FC. If the
statutory provision in question is constitutionally valid, then the decision
comes under judicial scrutiny by way of judicial review. It is at this juncture
that the principles of administrative law come into play and it is apparent that
the overriding principle that must be adhered to is the rule of law.
G
[442] In the context of the particular statute in question in this jurisdiction,
such as s. 15B POCA, as the ouster clause is unconstitutional, it follows that
the attempt to preclude judicial scrutiny is invalid. Accordingly, the Board’s
decision is subject to judicial scrutiny to ascertain whether his decision is
H consonant with the rule of law, applying the principles of administrative law.
[443] As stated earlier, in the context of s. 15B, the proportionate and
necessary judicial scrutiny to be undertaken is whether the Board’s decision
to detain the detainee under POCA is tainted with illegality or mala fides and
whether it is consonant with the objectives of the legislation and art. 149 FC.
I It is subject to the normal principles of judicial review where the court
undertakes to ascertain whether the decision is tainted by illegality,

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irrationality and procedural impropriety. This does not translate into an A

intricate study of the factual basis for detention. Judicial scrutiny is
circumscribed as outlined above.
The Decision Of The Singapore Court Of Appeal In Nagenthran
[444] In 2012, the Singapore Misuse of Drugs Act (“MDA”) was amended B
to give the court a discretion to sentence the offender to life imprisonment
instead of death subject to two conditions: namely that the offender was a
mere courier, and that the Public Prosecutor issues a certificate that the
offender had substantively assisted the Central Narcotics Bureau in
disrupting drug trafficking activities within or outside Singapore. Section
C
33B(4) MDA limits the grounds on which the court can review the
determination of the Public Prosecutor whether or not to issue the certificate
in the following terms:
The determination of whether or not any person has substantively
assisted the Central Narcotics Bureau in disrupting drug trafficking D
activities shall be at the sole discretion of the Public Prosecutor and no
action or proceeding shall lie against the Public Prosecutor in relation to any such
determination unless it is proved to the court that the determination was done in bad
faith or with malice.
(emphasis added)
E
[445] The Public Prosecutor declined to issue the certificate for the
appellant. The appellant challenged the decision by way of judicial review.
It was contended on behalf of the appellant that he had in fact rendered
substantive assistance to the Central Narcotics Board by providing
information. In the earlier case of Prabagaran Srivijayan v. PP [2017] 1 SLR
F
173 the Court of Appeal held that giving the Public Prosecutor the sole
discretion to issue the certificate was within the Legislative power on
sentencing and did not violate judicial power. The issue in Nagaenthran was
whether s. 33B(4) MDA precluded judicial review of the PP’s decision on
grounds other than bad faith or malice.
G
[446] The Singapore Court of Appeal held that s. 33B(4) precluded judicial
review of the merits of the decision but not the legality of the decision. In
its unanimous judgment of the court, speaking through the Chief Justice,
Sundaresh Menon made the following points:
(i) Section 33B(4) is not an ouster clause but an immunity clause; H

(ii) Its purpose was to immunise the Public Prosecutor from suit except
on the grounds of bad faith or malice;
(iii) The section does not exclude the jurisdiction of the court to review the
legality as opposed to the merits of the PP’s decision; I
(iv) The court can review the decision on the usual grounds of judicial
review, such as illegality, irrationality and procedural impropriety
(see paras 47, 50 and 68);

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 147

A (v) The merits of the Public Prosecutor’s determination is not capable of

being reviewed by a court. This is because the issue of whether there
was substantial assistance or not is a matter that requires wide-ranging
assessment which a court is simply not equipped to assess. It might
also require the consideration of some materials that are not
B admissible evidence;
(vi) “The courts are simply ill-equipped and ill-placed to undertake such
an inquiry”;
(vii) The disclosure of confidential information, such as intelligence and
operational details of the Central Narcotics Bureau, might jeopardise
C
the effectiveness of the war on drugs and is “a very significant
concern”.
The Court of Appeal pointed out that as s. 33B(4) does not oust review on
legality as opposed to merits, there is no infringement of judicial power:
D (viii) The court’s power of judicial review is a core aspect of judicial power.
This follows from the supremacy of the Singapore Constitution in
art. 4;
(ix) A provision ousting the court’s power of judicial review would be
constitutionally suspect for violating the constitutional principles of
E
judicial power and the separation of powers.
[447] It follows from the Nagaenthran that the constitutional supremacy
provisions of art. 4 preclude the efficacy of ouster clauses which encroach
upon and seek to restrain the exercise of judicial power under the FC. This
F decision further bolsters the position adopted earlier in this judgment in
relation to art. 4 and art. 121. However, it is equally clear that the scope and
ambit of judicial review is clearly circumscribed and the courts should
confine such scrutiny to the legality of the decision by the application of the
well-accepted principles of ascertaining whether the decision is tainted by
illegality, irrationality or procedural impropriety. An extensive factual
G
assessment is inappropriate, as the courts are simply not equipped to do so.
To this extent, a judicial review premised on the factual basis of the Board’s
decision is not permitted.
[448] In the present case, as s. 15B POCA is null and void and therefore
H ineffective, it follows that it is open to the court to review:
(i) The legality of the exercise of the Board’s discretion, so as to ascertain
whether the decision was in accordance with the intent and object of
POCA and meets the requirements of legitimacy proportionality and
procedural propriety (see Council of Civil Service Unions v. Minister for the
I Civil Service [1984] UKHL 9 (‘the GCHQ case’)). In this context, it is
important to emphasise that the exercise of the Board’s discretion may
be judicially scrutinised in respect of matters other than procedural
non-compliance;

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148 Current Law Journal [2021] 4 CLJ

(ii) In other words, not only are matters disclosing procedural non- A
compliance available for review, other substantive matters are equally
available for review in the course of determining habeas corpus matters.
The courts are not restricted to examining those decisions within the
narrow confines of mistakes relating to procedure stipulated in the
relevant legislation in the course of detaining a person under such B
legislation;
[449] Therefore, it is open to the courts to consider both procedural and
substantive grounds in reviewing the exercise of discretion of the Board in
the course of a habeas corpus application. It is equally open to the courts to
review the constitutionality of the underlying legislation to ensure that it falls C
within the ambit of art. 149, as that is a matter of legality. However, that is
not the subject matter of adjudication before us, and will not be considered.
Post Script: Judgment Of Right Honourable The Chief Justice In Civil
Appeal No: 01(f)-5-03-2019(W)(“Maria Chin”)
D
[450] Pending the delivery of this judgment, the Federal Court delivered its
judgment in Maria Chin. I respectfully adopt my reasoning in my dissenting
judgment which concurs with the judgment of the Right Honourable the Chief
Justice of Malaysia. The issue of law there is identical to the issue of law
here, save that the present case deals with the constitutionality of an ouster
E
clause in legislation enacted pursuant to art. 149(1) FC.
[451] The reasoning of the Chief Justice in that case is pertinent to the issue
of law here and I would respectfully refer to the following passages from Her
Ladyship’s judgment which are of particular significance here and which is
consonant with what I have expressed in this judgment. F
[452] With respect of arts. 4(1) and 121(1) FC and judicial power, this is
what the learned Chief Justice said:
[447] Coming back to the FC, any law passed inconsistent with the
provisions of the FC are void. But, it is obvious that the FC is not
self-executing. It cannot therefore proactively protect itself from breach. G
The organ of Government tasked with this onerous obligation is the
Judiciary. The power to do it is loosely described as judicial power and
the mechanism by which it is done is called judicial review.
...
H
[452] The answer to the criticism may be provided thus: this court in both
Semenyih Jaya and Indira Gandhi appeared to have taken the approach of
reading down the 1988 amendment to art. 121(1). Having taken that
approach, there was thus no real need to expressly strike down the
amendment to art. 121(1). Similar effect had been achieved by reading
down the amendment. I
...

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 149

A [454] Accordingly, art. 121(1) should be read in the sense that the words
“the judicial power of the Federation shall be vested in the two High
Courts of co-ordinate jurisdiction and status’ still exist despite their
deletion and in the same vein, the words inserted by the 1988 amendment
to the extent that “the High Courts ... shall have such jurisdiction and
powers as may be conferred by or under Federal law” as having no effect
B whatsoever of diminishing or subordinating judicial power to Parliament
or declaring Parliament supreme in any way.
And on the issue of the role of the Judiciary:
[480] The holding that ouster clauses are invalid does not in any way
suggest that the courts are now supreme. As the guardian of the FC, the
C
Judiciary must forever remain mindful that there are certain matters in
which it cannot trespass. The larger point to be made is that the Judiciary
too must observe the doctrine of separation of powers ...
[491] The ratio decidendi extracted from CCSU is that on the facts of certain
cases, the Judiciary cannot tread into certain matters as they may fall
D within the prerogative of the Executive. In the larger context, the reason
for this self-imposed judicial exclusion is that the Judiciary is simply not
armed with the expertise or the information to deal with those matters
such as national security. For example, judges are not privy to intelligence
reports and secret police investigations. Lest I am misunderstood, the
concept of non-justiciability does not mean that the Judiciary shirks its
E
constitutional obligation to decide the legality of Government action or
abstention. It also does not mean that the Judiciary can or does take
instructions from the Legislature or the Executive as to what it can or
cannot adjudicate. Although ouster clauses were not in issue before their
Lordships in CCSU, the lesson learned from that case is that the Judiciary
F
has an inherent obligation to understand what it can and cannot
adjudicate upon, given the inherent constitutional limits of the institution.
[492] Accordingly, given that the FC is supreme and how this is translated
through judicial power, and in light of the right of access to justice, the
rule can be summarised thus. All persons are equally entitled to approach
the courts for a ruling as to their rights and liabilities. The courts are in
G turn constitutionally required to examine the claim on face value as they
did in CCSU. However, whether the litigant is definitively entitled to the
remedy sought is another matter entirely and it remains for the courts to
decide on the facts and circumstances of each case whether the subject
matter is justiciable. By way of example, it is insufficient for the
Government to rely on an ouster clause as a convenient means to tell the
H
courts what they can and cannot look at. Whatever concern they have
may perhaps be more properly ventilated, in such cases, by way of an
affidavit deposing why the matter is non-justiciable stating clearly the
reason for the view eg, national security.
[453] Finally, I respond to some of the matters raised in the majority
I
judgment. I refer to para. 50 of the majority judgment. It is suggested there
that the Reid Commission recognised that the scope and extent of jurisdiction
and powers of the courts with the exception of the Supreme Court was

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150 Current Law Journal [2021] 4 CLJ

determined by Federal law. But the salient point that appears to have been A
left out, is that the reference to the Supreme Court in the Reid Commission
Report is now equivalent to a reference to the current superior courts of
Malaysia, namely the High Courts and the appellate courts. Therefore,
jurisdiction is not confined or defined by Federal law but is inherent judicial
power as provided for in the FC under arts. 4(1) and 121. In other words, B
to suggest that the judicial power of the superior courts is circumscribed by
Federal law by a reading of a portion of the Reid Commission report is
simply flawed. In point of fact a reading of para. 123 reveals:
First, we consider that the function of interpreting the Constitution
should be vested not in an ad hoc Interpretation Tribunal, as provided by C
the Federation Agreement, but (as in other federations) in the ordinary
courts in general and the Supreme Court in particular. The States cannot
maintain their measure of autonomy unless they are enabled to challenge in the courts
as ultra vires both Federal legislation and Federal Executive acts. Secondly, the
insertion of Fundamental liberties in the draft Constitution requires the
establishment of a legal procedure by which breaches of those D
Fundamental Liberties can be challenged. (emphasis added)
[454] The highlighted portion makes it clear that the Judiciary was to be
vested with sufficient powers to allow a challenge of Federal law. As such,
it cannot be said that the Judiciary’s powers were relegated or circumscribed
by Federal law. Therefore, the drafters clearly intended that the Judiciary be E
constitutionally empowered to review Legislative and Executive acts. The
argument that Federal law may circumscribe judicial power or oust it
entirely, as is suggested in the majority judgment and by the AGC, runs
contrary to the intent and express provisions of the FC, particularly in
arts. 4(1) and 121 FC. F

[455] As for para. 55, where it is suggested that by reason of the existence
of arts. 149, 150 and 151, Parliament is at liberty to suspend fundamental
rights by virtue of these special powers, it needs to be considered that the
Reid Commission Report expressly stipulates that any infringement of
fundamental rights is only justified to such an extent as may be necessary to G
meet a particular danger. More pertinently, it does not exclude art. 4(1) FC
as I have pointed out earlier, and this is pertinent because it means that where
there is inconsistency with arts. 4 itself, 8, 121, 151 and other articles in the
FC which are not excluded, the courts retain the right to scrutinise Executive
action or review legislation. The majority judgment referred to para. 174 of H
the Reid Commission Report but did not quote it in full in that it did not
highlight the following salient statement:
... It would be open to any person aggrieved by the enactment of a
particular infringement to maintain that it could not properly be so
regarded and to submit the question for decision by the court ... . I

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[2021] 4 CLJ Jenayah & Ors And Other Appeals 151

A [456] This clearly shows that:

(i) article 4(1) FC was deliberately excluded from the list of derogated
articles in art. 149; and
(ii) the court remained at liberty to scrutinise and review the subject
B legislation or Executive acts emanating therefrom.
[457] Therefore, it is inaccurate and flawed to suggest that the courts are
capable of being restrained or ousted by Federal law.
[458] At para. 60, it is suggested that the courts’ powers of judicial review
are statutory rather than constitutional. This again is incorrect by reason of
C
art. 4(1) where the express powers of constitutional judicial review are
derived and recognised in the words “any law passed after Merdeka Day
which is inconsistent with this Constitution shall, to the extent of the
inconsistency, be void.” At the risk of repetition, no law can be struck down
unless the Judiciary has the power to do so. It therefore defies logic that
D Federal law which can be struck down by the Judiciary, may control and
circumscribe judicial powers, contrary to art. 4(1) FC.
[459] The majority also suggests that s. 15B merely limits judicial review
does not completely oust judicial power and it is not therefore a “complete
ouster clause”. This again fails to appreciate the definition of judicial review
E
in the sense of the word. As stated by the Honourable Chief Justice of
Malaysia in Maria Chin’s case:
... [445] The term “judicial review”, in a wider and more holistic sense,
is used to describe the exercise of judicial power of review by the courts
over the conduct of either the Legislative or the Executive branches of
F
Government. It involves the application of the judicial mind of the
assessment of the legality of their conduct. It is not an ancillary but
integral and corollary feature of the Rule of law and democracy ...
[460] Clearly relatively, trivial matters like a computation of the number of
days that transpire between the passing of reports, or the transportation of a
G
detainee, or the number of sheets of paper that are provided to him to write
his complaint can scarcely comprise judicial review.
[461] The next paragraph which warrants comment is para. 64 where it is
suggested by the majority that “law” in art. 4(1) FC means only ordinary
H
laws, and excludes laws to amend the Federal Constitution under art. 159.
These propositions are taken from two judgments namely Loh Kooi Choon
v. Government Of Malaysia [1975] 1 LNS 90; [1977] 2 MLJ 187 and Phang
Chin Hock v. PP [1979] 1 LNS 67; [1980] 1 MLJ 70. In my view, these
judgments have been overruled by this court in Semenyih Jaya, Indira Gandhi
and Alma Nudo. In any event, these judgments failed to consider the
I
overarching role of art. 4(1) in the FC when seeking to sever “Federal law”
in art. 159(1) from art. 4(1) as I explain below.

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[462] Firstly, the use of the words “ordinary law” is not to be found in the A
FC. The phrase employed in art. 159(1) is “Federal law”. Federal law is
defined in art. 160 to mean:
(i) any existing law relating to a matter with respect to which Parliament
has power to make laws, being a law continued in operation under
B
Part XIII; and
(ii) any Act of Parliament;
[463] Whereas “law” is far wider in its definition and includes “written
law” which in turn is defined as “... includes this Constitution and the
Constitution of any State”. Therefore, Federal law is and has to be C
subordinate to written law as defined in the FC. It therefore follows that
art. 159(1) has to be subordinate to or follow upon art. 4(1) FC. And this is
important because it allows for any amending law to be struck down if it is
inconsistent with the FC.
[464] Secondly, the precise words utilised in art. 159(1) are “the provisions D
of this Constitution” while art. 4(1) stipulates anything inconsistent with
“this Constitution”. When juxtaposed it is evident that “the provisions of this
Constitution” must fall within or be subject to the far wider “this
Constitution”. The latter refers to the concept of the FC in its original form
and as it has evolved to date. While the “provisions of this Constitution” E
refers to the Constitution as it subsists at any given point in time only.
[465] The argument put forward by the majority is that only ordinary laws
need to conform to the FC, and that laws seeking to amend the Constitution
do not, because if art. 4(1) is given its proper construction, it would mean
that Parliament could never amend the FC. This is, with respect, F
fundamentally flawed. It is incorrect to carve out art. 159(1) as not being
subject to art. 4(1) because that does not accord with the definitions of “law”
in the FC itself as pointed out above.
[466] In point of fact, art. 4(1) is the fulcrum, and art. 121(1) and art. 159(1)
G
both of which use “Federal law” can be harmoniously construed with
art. 4(1) FC. It follows that the amendment of art. 121(1) in 1988 when read
that way is constitutionally valid. Therefore, Parliament can and did make
a constitutional amendment without affecting either judicial power or the
power of Parliament to amend the FC. As I have stated earlier, this entire
problem has arisen by reason of the grammarian approach adopted by this H
court in Kok Wah Kuan.
[467] Moving on to para. 66, it is suggested that because s. 15B emanates
from art. 149, it cannot be subject to judicial scrutiny. And the reasoning for
this is reliance on Loh Kooi Choon where it was stated that: “the Constitution
I
as the supreme law, unchangeable by ordinary means, is distinct from
ordinary law and as such cannot be inconsistent with itself.” (see p. 190 of
the case).

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Rovin Joty Kodeeswaran v. Lembaga Pencegahan

[2021] 4 CLJ Jenayah & Ors And Other Appeals 153

A [468] However, s. 15B is not part of the Constitution. There is a tangible

difference between art. 149 itself and s. 15B, which is enacted as ordinary
law pursuant to art. 149. Therefore, the clear distinction cannot be papered
over, and s. 15B is subject to scrutiny under art. 4(1) FC. It is not insulated
simply by the fact that it was enacted pursuant to art. 149. If that were the
B case, any and all legislation enacted pursuant to particular articles of the FC
would be immune from judicial scrutiny. That would render art. 4(1) otiose.
Even the Reid Commission Report rejected this idea.
[469] It is suggested in the last two lines of para. 67 of the majority judgment
that a law cannot be struck down for being inconsistent with art. 4(1) itself
C and that such law can only be struck down for being inconsistent with some
other article in the FC. In other words, it is suggested that art. 4(1) provides
a mechanism for striking down and that that is its only function. This is
misconceived. Article 4(1) apart from stipulating that it is the supreme law
of the land allows the Judiciary to strike down law that is inconsistent with
D “this Constitution”. This means every article in the Constitution including
art. 4(1). It does not exclude art. 4(1). Therefore, any law that seeks to
prevent judicial scrutiny or review falls foul of art. 4(1), because the purport
of that article is to ensure that there is adherence to the FC. As I have pointed
out earlier, if the court is precluded from even reviewing legislation for
E
inconsistency, how is art. 4(1) to take effect? Article 4(1) would be
emasculated. The proposition in para. 67 is therefore flawed.
[470] A further fundamental issue that has to be addressed is the fact that the
law relating to the doctrine of basic structure is not in issue before us. This
is evident from the clear acceptance of that doctrine in the seminal cases of
F Semenyih Jaya and Indira Gandhi, and which has been expressly
acknowledged by the AGC in their submissions. Notwithstanding this, the
majority judgment purports to strike down the doctrine. As it is not in
dispute, or a part of the lis, it ought not to have been addressed as being either
flawed or inapplicable under our law, in the majority judgment. In choosing
G
to focus on this issue, and in trying to preclude the use of the doctrine in this
case, despite acceptance of the same by both parties to the lis a breach of
natural justice has been occasioned. See Janagi v. Ong Boon Kiat [1971]
1 LNS 42; [1971] 2 MLJ 196:
An issue arises when a material proposition of law or fact is affirmed by
H one party and denied by the other. The court is not entitled to decide a
suit on which no issue has been raised by the parties ...
[471] There are other general reasons why I am unable to agree with the
majority judgment. I do not propose to highlight each and every point as I
have set out the thrust of my legal reasoning in the main body of my
I dissenting judgment and the points I have mentioned above. The final

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154 Current Law Journal [2021] 4 CLJ

observation is in respect of that portion of the majority that seeks to address A

the basic structure doctrine in the Malaysian context and their reasons for
rejecting it. I can do no better than to quote from the Right Honourable the
Chief Justice of Malaysia in Maria Chin in this regard:
(v) Although judicial precedent plays a lesser role in construing the
provisions of the FC, there is no reason for this court, not to adhere to B
the doctrine of stare decisis. It is of supreme importance that people may
know with certainty what the law is. Little respect will be paid to our
judgments if we were to overthrow today what we have resolved the day
before, especially if it concerns our supreme law – the Federal
Constitution.
C
[472] In this context, the majority have sought to distinguish the seminal
decisions of this court in Semenyih Jaya, Indira Gandhi and Alma Nudo on the
grounds that the facts there are different. This ignores the ratio of those cases
each of which clearly dealt with judicial power. It is therefore insufficient to
use a basic factual matrix to distinguish such fundamental principles D
pertaining to the Federal Constitution.
Conclusion
[473] For the reasons set out above, I conclude that s. 15B POCA is
unconstitutional, and is hereby struck down for being inconsistent with
E
art. 4(1) FC. The appeals are allowed to that extent, namely that the
appellants’ applications for habeas corpus are no longer confined to a review
of procedural irregularities under POCA. The appellants are entitled to raise
and be heard in respect of any substantive matters pertaining to their
detentions which reflect alleged illegality, a lack of proportionality or
procedural impropriety. F

[474] It follows from above that the decision and reasons of the Board for
the detention of the appellants, are or ought to be available for consideration
under these habeas corpus applications. This is in order to enable the court to
ascertain whether the decisions of the respondents to detain the appellants
G
under POCA, fall within the scope and ambit of that statute and art. 149 FC.
[475] By reason of s. 15B POCA, the respondents did not file any affidavits
explaining the basis or the reasons for the detention of the appellants. It is
therefore necessary to accord the respondents an opportunity to be heard in
relation to the detention of the six appellants, by way of filing the requisite
H
affidavits, if the respondents so desire.
[476] The original applications for habeas corpus are therefore fixed for
further hearing in the High Court to afford the respondents the opportunity
to file the requisite affidavits to explain and/or substantiate the reasons for
the detention of the appellants. I

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