The Court ruled that a failure to respect procedural requirements in a habeas corpus application constitutes a breach of natural justice, necessitating a rehearing.

Tengku Maimun Tuan Mat CJ:

Introduction

[1] Enclosure 1 is an application pursuant to r 137 of the Rules of the Federal 1995 to review and set aside the order of this Court dated 19 February 2021.

[2] The applicant is one Nivesh Nair Mohan ('detenu') whose case stems from an application for habeas corpus which was dismissed by the High Court. On appeal to this Court, the order of the High Court was upheld on 19 February 2021 by a majority of 4-1. This Court delivered two written judgments - one on behalf of the majority ('majority judgment') and the other the dissenting judgment ('minority judgment').

[3] After carefully considering parties' written submissions and upon hearing their oral submissions, we were satisfied that the high threshold of review was made out and as such, we unanimously allowed encl 1.

[4] We now provide our reasons for the said decision.

[5] Unless expressed otherwise, our references to 'section/sections' is to those of the Prevention of Crime Act 1959 (' POCA 1959') and likewise, 'Article/Articles' is to those of the Federal Constitution.

Salient Facts

[6] The detenu was detained for a period of two years pursuant to a detention order issued by the Chairman of the Prevention of Crime Board ('Board') dated 6 May 2019 under subsection 19A(1). He then filed an application for habeas corpus alleging that the detention was ultra vires and bad in law and that accordingly, he ought to be released by order of the Court.

[7] The primary basis of his allegation of ultra vires is premised on subsection 7B(2). The subsection, as we understand it and without having set it out, stipulates that members of the Board shall hold office for a period not exceeding three years unless re-appointed. According to the detenu, the noncompliance was borne out by the fact that the 1st respondent did not reply to the detenu's averments/question as to the validity of the appointments of certain members of the Board who ordered his two-year detention.

[8] As a corollary to the s 7B issue, the detenu also challenged the constitutional validity of s 15B which reads:

"Judicial review of act of decision of Board

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 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;

(b) an application for a declaration or an injunction;

(ba) a writ of habeas corpus; and

(c) 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.".

[9] Put simply, s 15B is an ouster clause which the detenu argued is constitutionally invalid for being in violation of cl (1) of art 4 and cl (1) of art 121. More specifically, para (ba) of subsection 15B(2) statutorily debars any Court from hearing any application for a writ of habeas corpus.

[10] Now, given the nature of the arguments, the principal issue is the validity of the detention of the detenu under s 7B of the habeas corpus. However, before that question could be dealt with, the preliminary question that arose was whether the application for habeas corpus is itself sustainable in light of the statutory bar against challenge imposed by s 15B.

The Review Motion

[11] As this was a motion for review and not an appeal, we do not consider it necessary to discuss in great detail the decisions of the courts below on the merits. We shall proceed to highlight the basis for the review motion.

[12] The grounds in support of encl 1 were as follows:

"(1) There is a serious breach of natural justice in the following instances:

a. Both parties agreed that the basic structure