JUDGMENT

Noorin Badaruddin J:

[1] The Applicant was arrested on 20 June 2021 and subsequently detained under subsection 4(5) of the Security Offences (Special Measures) Act 2012 ("SOSMA") from 20 June 2021 to 13 July 2021.

[2] On 28 June 2021, the Applicant filed a Writ of Habeas Corpus against the 28 days of his detention under SOSMA at the Kuala Lumpur High Court.

[3] On 13 July 2021, the Applicant was charged under s 130V(1) of the Penal Code before the Sessions Court in Kuala Lumpur.

[4] The High Court then dismissed the Applicant's Writ of Habeas Corpus application on the ground that the application has been rendered academic. The Applicant appealed to the Federal Court.

[5] On 11 January 2022, the Federal Court heard the appeal and remitted the case to the High Court and directed the Habeas Corpus application to be heard on its merits.

[6] The Habeas Corpus application was heard on its merits and on 8 June 2022, the High Court ruled that there has been a procedural noncompliance with subsection 4(2) of SOSMA but no Writ of Habeas Corpus was issued as the Applicant is now in remand pending trial for a charge under s 130V of the Penal Code.

[7] On 8 November 2022, the Applicant filed a second appeal before the Federal Court. A constitutional issue arose in the second appeal and the Federal Court directed that the constitutional issue be heard before the High Court.

[8] The only constitutional issue to be heard is "Whether subsection 4(5) of SOSMA is in contravention of art 121 of the Federal Constitution ("FC") and thus unconstitutional".

The Crux of Arguments

[9] The Applicant takes the position that subsection 4(5) of SOSMA is unconstitutional as it violates art 121 of the FC. The Applicant contends that the 28-day detention period under subsection 4(5) of SOSMA essentially constitutes a remand procedure and that a remand process is a judicial power of the judiciary. Hence, subsection 4(5) of SOSMA is argued to be a nullity as it takes away the judicial power and cuts across the doctrine of separation of powers which is part of the basic structure of the Constitution. The Applicant submits that this usurpation of judicial power infringes the sanctity of the doctrine of separation of powers, violates the basic structure of the FC and is therefore unconstitutional.

[10] The Respondents on the other hand argue that although it cannot be disputed that remand process is a power vested with the judiciary, SOSMA however is enacted with the intention of empowering the executive to detain a person for the purpose of conducting investigation in a manner pursuant to subsection 4(5) of SOSMA. SOSMA is argued to be a specific law with the core purpose to suit the objective of art 149 of the FC involving special measures relating to security offences to maintain public order. The Respondents argue that the Courts have recognised that security issues are matters vested within the purview of the executive which the Courts do not interfere with.

[11] In citing the decisions of the Apex Courts in ; [2022] 3 MLJ 356; [2022] 5 CLJ 1; [2022] 4 AMR 317, ; [2021] 1 MLJ 750; [2021] 2 CLJ 579 and ; [1988] 1 CLJ (Rep) 249, the Respondents argue that the Courts have chosen not to interfere with any matters falling within the purview of the other branches especially matters on policy because the Courts are not equipped to deal with such matters.

Analysis of This Court

[12] It is critical to note that subsection 4(5) of SOSMA presents itself in that it has not provided the judicial powers to determine the grant of the extension of detention. Unlike in the United Kingdom legislation and our Criminal Procedure Code, subsection 4(5) of SOSMA does not provide for a judicial authority, like a Magistrate, to be satisfied that an extension of the period of detention is necessary. Subsections 4(4) and 4(5) of SOSMA are essential to be reproduced to fully appreciate the constitutional question herein. The provisions read:

"4. Power of arrest and detent