In this case, six appellants were 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 two years. Their application for a writ of habeas corpus was dismissed and they appealed against the decision. S.15B of POCA (“S.15B”) excludes judicial review, inter alia, in respect of a writ of habeas corpus. The appellants contend that S.15B which purport to oust the judicial powers [as enshrined under Art.121(1)], to review the decision to detain them under POCA is unconstitutional. The main issue of this case is whether S.15B which was enacted under Art.149 ousts the jurisdiction of the Courts to exercise judicial review is unconstitutional by virtue of Art.4(1) and/or Art.121(1)?

 

In the majority judgement, the Court observed that S.15B is only a partial ouster clause where it only limits judicial review to procedural non-compliance. POCA which is legislated under Art.149 was held to be challengeable under Art.4 as Art.4 is not suspended by Art.149. The Court construed Art.4(1) in two ways, 1. inter alia, Art.4(1) cannot operate by itself to strike down any law that is inconsistent with FC , 2. Art.4(1) only operates if S.15B is inconsistent with other provisions of the FC. Subsequently, the court proceeded to determine the latter. Art.149 empowers Parliament to legislate in respect of preventive detention，where pursuant to the ground stated in Art.149(1) the Parliament may restrict fundamental rights (Art.5, 9, 10 or 13). Referring to Art.149(2) which provides that law pursuant to Art.149 must contain a recital as is mentioned in Art.149(1), the Court affirm that POCA is valid since it contains the recital of Art.149(1)(a).

 

The Court then highlighted that S.15B of POCA was enacted with Art.151(3) in mind and was meant to give effect to the objective of POCA, i.e., to amplify the importance of national interest. As such, it is legitimate for the Legislature to provide for limited judicial review as in S.15B under Art.149. In conclusion, S.15B is constitutional as Art.149, read together with Art.151(3) authorized it. The Court reminded that they must give full effect to what is provided by Federal law as Parliament confers the court jurisdiction and power according to Art.121(1). The extent of the review jurisdiction may be determined by the Legislative intervention as in this case S.15B explicitly excluded judicial review on procedural non-compliance.

 

However, in light of Art.4 and Malaysia's constitutional supremacy, YA Datuk Nallini Pathmanathan refused to follow the majority and found that s.15B is constitutionally unsound due to its exclusion of the right of the judiciary to review the Executive's decision save in omitting procedural issues. Art. 4(1), she said, authorises the Judiciary to strike down laws that are in conflict with "this Constitution." Art. 4 of the Constitution is included in this definition (1). To interpret rt.121 consistently with Art.4(1), it must be understood that just because the judicial power is "subject to federal laws," it doesn't mean that Parliament can deviate from its role of acting as a check and balance mechanism. This means that S.15B is illegal since it prevents the court from having jurisdiction because Art.149 does not offer immunity to any legislation that is subject to dispute under Art.4 (1).

 

With all due respect, the bulk of people seem to have missed the point of judicial review as a whole. As a result of the majority's literal interpretation of Art. 121(1), which states that the judicial power is subordinate to federal law, the issue has only gotten worse. There is a tragedy if Art.4 is applied strictly, along with the literal interpretation of Art.121; this would allow the Legislature to undermine the notion of separation of powers, by limiting the judiciary's ability to evaluate laws passed by it. In fact, this is a situation of judicial passivity that undermines one of our Constitution's most important basic structure precepts, namely, judicial review.

 

The conservativeness of the judges in giving full effect to the operation of Art.4 in determining whether a legislation is constitutional or not shows that they are not fulfilling their duty of being the Constitution defenders. According to this interpretation, the inherent judicial power would be curtailed and the Constitution may be exploited to the harm of the Rakyats, which would suggest that Art.121 should not be taken literally. All in all, this would mean that the fundamental liberties would be exploited if all legislation that are enacted pursuant to Art.149 which seeks to restrict those liberties would be allowed.