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FEDERAL COURT PUTRAJAYA
ZAIDI KANAPIAH – Appellant
Versus
ASP KHAIRUL FAIROZ RODZUAN & ORS AND OTHER APPEALS – Respondent
What is the constitutionality of section 4 of the Prevention of Crime Act 1959? Are the appeals academic due to subsequent remand orders? Does section 4 of POCA violate the separation of powers under Article 121 of the Federal Constitution?
Key Points: - The Federal Court ruled that section 4 of the Prevention of Crime Act 1959 (POCA) is constitutional, as it does not violate separation of powers or Article 121 of the Federal Constitution (!) (!) (!) (!) . - The majority held that Magistrates exercise judicial discretion under s 4 POCA to ensure compliance with legal, procedural, and constitutional safeguards before issuing remand orders (!) (!) (!) (!) . - The appeals were allowed solely because there was no evidence in the record that the Magistrate exercised discretion judicially in issuing the remand orders under s 4(1) POCA, rendering them invalid (!) (!) (!) (!) . - The preliminary objection that the appeals are academic was overruled, as habeas corpus applications must address the detention as a cumulative transaction (!) (!) (!) (!) . - Unlawful gaming under para 5 of the First Schedule to POCA falls within "organised violence against persons or property" under Article 149(1)(a) of the Federal Constitution (!) (!) (!) . - The basic structure doctrine does not apply to the Malaysian Federal Constitution, as confirmed in prior cases like Loh Kooi Choon (!) (!) (!) . - No mala fides was established in the appellants' detention, as they were suspects in MACC investigations, not mere witnesses (!) (!) (!) . - Writs of habeas corpus were issued for the appellants' release specifically in respect of the remand orders under s 4 POCA (!) (!) (!) (!) .
Introduction
[1] The central issue in these appeals is the constitutionality of s 4 of the Prevention of Crime Act 1959 (" POCA "). The Federal Constitution (" FC ") is the heartbeat of this great Nation defining the Legislature, Executive, and Judiciary parameters, intricately woven yet profoundly independent of each other. The sanctity of the must be respected, jealously protected, staunchly defended, and guarded at all times.
The Appeals
[2] The appeals emanated from the decision of the learned Judicial Commissioner (JC) made on 2 November 2020. The learned JC dismissed the appellants' applications for a writ of habeas corpus as he was satisfied that the detention orders issued by the Magistrate against the appellants were lawfully made. Aggrieved by the decision of the High Court the appellants filed their respective appeals.
[3] We heard the oral submissions of the respective counsel for the parties on 28 December 2020. As we needed time to consider the submissions of the parties we had indicated to the parties that we will inform them of our decision once we are ready to do so. This is the decision of the majority and the reasons for having
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