Section 15B of the Prevention of Crime Act is unconstitutional as it limits judicial review and infringes the fundamental right to challenge detention under Article 4(1) of the Federal Constitution.

Zabariah Mohd Yusof FCJ:

A. Background

[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 the 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 the order, the respective appellants are to be detained at the respective Pusat Pemulihan Khas (PPK).

B. The Issue In The Appeals

The Basis Of The Challenge

[2] Encik Najib Zakaria, counsel for the five appellants, Rovin Joty Kodeeswaran, Darweesh Raja Sulaim, Ragu Vitee, Devandren James and Velu Rajakumar indicated that he would be raising only one issue before this court, namely, whether s 15B POCA (an ouster clause provision) which purports to limit the exercise of judicial power is ultra viresart 121(1) of the Federal Constitution ( FC ) and therefore unconstitutional.

[3] Dato' Seri Gopal Sri Ram, counsel for the appellant Nivesh Mohan, raised an additional issue in addition to the issue raised by the other five appellants, namely, whether s 7B POCA had been complied with by 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 POCA which was enacted under art 149 which ousts the jurisdiction of the courts to perform judicial review is unconstitutional by virtue of art 4(1) of the FC ;

(ii) The ouster clause in s 15B 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 POCA encroaches on judicial power thus breaching the doctrine of the separation of powers between the three branches, namely the executive, legislative and the judiciary;

(iv) Section 15B 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 .

We will 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.

C. Submission By The Appellants

[6] Dato' Seri Gopal Sri Ram acting for and on behalf of the appellant, Nivesh submitted as his first ground in challenging s 15B 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 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 requirement in the POCA , as it involves the fundamental rights of the appellant.

[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] 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 dimensions, namely substantial justice and remedial justice. It is submitted that even if the appellant 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 cannot even enquire on an administrative plea and the appellants cannot cross the threshold because they could not invite the court to look into whether there is an anisminic error. Effectively the ouster has impacted on