The court held that legislative powers can constitutionally limit judicial review to procedural compliance in preventive detention, affirming the separation of powers and rejecting the applicability of the basic structure doctrine in Malaysian constitutional law.

[1]The 6 appellants appealed against the decision of the learned Judicial Commissioner which dismissed the application by the appellants for a writ of habeas corpus. The 6 appellants were ordered to be detained under section 19A(1) Prevention of Crime Act 1959 ( POCA )

B. THE ISSUE IN THE APPEALSThe basis of the challenge

[2]Encik Najib Zakaria, counsel for the 5 appellants, Rovin Joty a/l Kodeeswaran, Darweesh bin Raja Sulaim, Ragu a/l Vitee, Devandren a/l James and Velu a/l Rajakumar indicated that he would be raising only one issue before this Court, namely, whether section 15BPOCA

[3]Dato’ Seri Gopal Sri Ram, counsel for the appellant Nivesh a/l Mohan, raised an additional issue in addition to the issue raised by the other 5 appellants, namely, whether section 7BPOCA

[4]Corollary to the issues raised in paragraphs [2] and [3] above, the following 4 points were raised by the appellants in the course of arguments, namely:

(i)section 15BPOCAcourts to perform judicial review is unconstitutional by virtue of Article 4(1) of the FC ;

(ii)the ouster clause in section 15BPOCAcourts as provided under Article 121(1) of the FC . This will be taken together with the main issue as aforesaid;

(iii)section 15B of POCA encroaches on judicial power thus breaching the doctrine of the separation of powers between the 3 branches, namely the executive, legislative and the judiciary;

(iv)section 15B of POCA which seek to oust the courts from exercising their rights under Article 4(1) of the FC contravenes that very Article and to that extent contravenes the “basic structure” of the . We will address these 4 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 section 15BPOCAcourt. 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 POCA , as it involves the fundamental rights of the appellant.

[8]The 2^nd ground is that the impugned provision impedes access to justice under Article 5(1) of the FC . Following Public Prosecutor v Gan Boon Aun [2017] 3 MLJ 12substantial 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 223court cannot even enquire on an administrative plea and the appellant cannot cross the threshold because he could not invite the court to look into whether there is an anisminic error. Effectively the ouster has impacted on the fundamental rights of the appellants on access to justice.

[9]He submitted that these appeals do not involve any novel question but settled principle of law based on the trilogy of cases, namely Semenyih Jaya v Pentadbir Tanah Daerah Hulu Langat [2017] 3 MLJ 561Semenyih Jaya), Sivarasa Rasiah v Badan Peguam Malaysia & Anor 2009 MarsdenLR 4405 (Sivarasa Rasiah) and Indira Ghandi a/p Mutho v Pengarah Jabatan