Extradition sections that bypass judicial discretion violate constitutional rights and expectations of due process.

[1] The facts in this Originating Summons are not seriously disputed.

[2] The plaintiffs are said to be fugitive criminals and were arrested on 14 September 2020. A fugitive criminal is defined under s 5 of the Extradition Act 1992 (" EA ") as a person:

... who is accused of or convicted of an extradition offence committed within the jurisdiction of another country and is, or is suspected to be, in some part of Malaysia.

[3] In arresting the plaintiffs, the Royal Malaysian Police ("PDRM") was purportedly executing a provisional warrant of apprehension ("PWA"), which was issued by the Kuala Lumpur Magistrates Court on 11 September 2020. The PWA was made under s 13(1)(b) of the EA . It states as follows:

The matter having been filed for hearing on this day in the presence of Mr Mohd Ashrof Adrin Kamarul, Deputy Public Prosecutor on behalf of the Applicant [Public Prosecutor] AND AFTER READING the Notice of Application and the Affidavit filed herewith AND AFTER HEARING the abovementioned Deputy Public Prosecutor IT IS ORDERED that the application for provisional warrants of arrest to be issued against the Respondents under s 13(1)(b) of the Extradition Act 1992 [Act 479] be hereby granted.

[4] The PWA issued against the plaintiffs was based on a request made by the Government of the United States ("the US Government") dated 3 September 2020 to the 4th defendant, the Government of Malaysia ("GOM"). The request was made under Art 11 of an Extradition Treaty dated 3 August 1995 between the US Government and GOM ("the Extradition Treaty").

[5] Section 13 (1)(b) of the EA provides that where a fugitive criminal is in or suspected of being in Malaysia, a Magistrate may issue a PWA of such fugitive criminal on such information and evidence and under such circumstances as would, in his opinion, justify the issue of a warrant if the offence had been committed in Malaysia.

[6] After the arrest was executed on 14 September 2020, the plaintiffs were ordered by the Kuala Lumpur Magistrates Court to be remanded for a period of 60 days from 14 September 2020 pursuant to s 16(1) of the EA .

[7] On 8 October 2020, the Minister of Home Affairs ("the Minister"), the 2nd defendant herein, issued an order and signified to the Magistrate that the US Government had made a requisition for the return of the plaintiffs pursuant to s 12 of the EA . Subsequent to that, the learned Magistrate ordered that the proceedings before her be transmitted to the Kuala Lumpur Sessions Court. The plaintiffs' remand was extended until their appearance before the Sessions Court in accordance with s 16(2) of the .

The Order Under Section 20 Of The Encik Awang

[8] On the same day, 8 October 2020, the Minister also made an order under s 4 of the EA to the Sessions Court Judge, directing that the procedures under s 20 be applied to the extradition proceedings ("Prima Facie Exclusion Order"). The effect of his direction is to exclude prima facie evidence for extradition as envisaged under s 19 of the . The difference in the legal implication of these ss 19 and 20 of the will be addressed in the later of this judgment.

[9] Section 4 of the EA provides that where there is a binding arrangement entered into between Malaysia and any country for the extradition of fugitive criminals contains a provision for the prima facie requirement to be dispensed with either generally or in relation to a class or classes of offences, the Minister may give a direction in writing that the procedure specified in s 20 shall apply to such cases. Section 4 puts into effect the treaty obligation under art 7(3) of the Extradition