The ouster clause in Section 15B of POCA is unconstitutional, violating judicial review principles enshrined in Article 4(1) of the Federal Constitution and preventing the courts from assessing compliance with the constitutional framework.

Nallini Pathmanathan FCJ:

Introduction

[1] Every habeas corpus application made to this Court brings to the fore the competing concerns of national security and individual liberty, in respect of which the right balance must be achieved, in accordance with the provisions of the Federal Constitution (FC) and, from a broader perspective, the rule of law.

[2] The instant appeal involved one Dhinesh Tanaphll. He was the detainee and appellant here ('Dhinesh') who was ordered to be preventively detained at a rehabilitation centre known as Pusat Pemulihan Khas Bentong, Pahang for a period of two years pursuant to a detention order dated 31 October 2019, issued by the Prevention of Crime Board Chairman under s 19A (1) of the Prevention of Crime Act 1959 (' POCA '). We were not accorded the benefit of sighting the Statement of Facts or the reasons for his detention under .

[3] Dhinesh sought to secure his release by applying for a writ of habeas corpus pursuant inter alia, to art 5(2) of the Federal Constitution and s 365 of the Criminal Procedure Code.

Chronology of Salient Facts Relating To Dhinesh's Detention Under POCA

[4] The salient facts relating to his appeal are as follows:

(a) On 4 September 2019, Dhinesh was arrested;

(b) The next day, Dhinesh was brought before a magistrate to be remanded. The magistrate granted an order remanding him for 21 days;

(c) The investigating officer began investigations after that, completing his investigation report on 18 September 2019 and submitting it to the Inquiry Officer at the Home Affairs Ministry. This report was only submitted to the Crime Prevention Board on 4 October 2019;

(d) On 25 September 2019, Dhinesh was brought before a registrar (sitting as a magistrate) for his remand order to be extended. The registrar granted an order for a further 38 days of remand until 1 November 2019;

(e) The Inquiry Officer carried out a physical inquiry on 2 October 2019. The Inquiry Officer found that Dhinesh ought to be registered under para 2, Part 1 of the First Schedule of POCA and prepared a report pursuant to s 10(2) , submitting it to the Crime Prevention Board on 25 October 2019;

(f) The Crime Prevention Board sat on 30 and 31 October 2019. On 30 October 2019, the Crime Prevention Board affirmed the findings of the Inquiry Officer and informed the registrar to duly register Dhinesh. The next day, Chairman of the Crime Prevention Board issued a detention order dated 31 October 2019 against Dhinesh under s 19A(1) POCA ;

(g) On 1 November 2019, Dhinesh was brought to the detention centre. On the same day, he filled in the representation form and the centre had it faxed to the Advisory Board;

(h) As that day happened to be a Friday and the form was received in the late afternoon, the official acknowledgement of receipt was dated the following Monday, 4 November 2019;

(i) On 10 December 2019, the Advisory Board ('Board') heard Dhinesh's representation;

(j) The Board sent their recommendations to the Yang di-Pertuan Agong (YDPA) on 14 December 2019. It was brought before the YDPA on 28 December 2019;

(k) On 30 December 2019, the YDPA accepted the recommendation of the Board and ordered that Dhinesh continue to be held in detention; and

(l) Dhinesh then applied to be released from such detention. His application before the High Court was rejected and he appealed.

Judgment

[5] We heard the appeal on 15 September 2021 and granted the remedy of habeas corpus on 1 October 2021. We issued a brief judgment when doing so in the following terms:

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"This is our unanimous decision. We order that habeas corpus be issued,inter alia, on the following grounds:

(i) There is non-compliance with s 4(2) of the Prevention of Crime Act 1959 ( POCA ) because the order of the Magistrate did not indicate that a statement from the Public Prosecutor was produced before the Magistrate when she ordered the 38-day remand as is required under s 4(2)(a)(ii);

(ii) The writ of habeas corpus is not academic following this Court's dec