Q CASE 2

Discuss critically the constitutional impact and significance of the following decided case with
special emphasis on the judicial power and doctrine of separation of powers: Rovin Joty
Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors And Other Appeals [2021] 4 CLJ 1/
[2021] MLJU 196 (20 marks)
Q CASE 2

ROVIN JOTY KODEESWARAN v

LEMBAGA PENCEGAHAN JENAYAH & ORS AND OTHER APPEALS [2021] 4
CLJ 1
FEDERAL COURT, PUTRAJAYA
ABANG ISKANDAR CJ (SABAH AND SARAWAK); NALLINI PATHMANATHAN
FCJ; VERNON ONG LAM KIAT FCJ; ZABARIAH MOHD YUSOF FCJ; HASNAH
MOHAMMED HASHIM FCJ
[CRIMINAL APPEALS NO: 05(HC)-304-12-2019(B), 05(HC)-308-12-2019(B),
05(HC)-303-12-2019(B),05(HC)-305-12-2019(B), 05(HC)-307-12-2019(B) & 05(HC)-
7-01-2020(W)]
26 FEBRUARY 2021

2.0 FACTS AND COURT DECISION

The six appellants were against the decision of the Judicial Commissioner
who had dismissed the application by them for a writ of habeas corpus. The
six appellants had been ordered to be detained under s 19A(1) of the
Prevention of Crime Act 1959 ('POCA') by the Prevention of Crime Board ('the
Board') for a period of two years. Their appeal as to why they should be
granted with a writ of habeas corpus were based on the grounds that is based
on fact that S. 15B of POCA is unconstitutional by virtue of art 4(1) federal
constitution (FC). On top of this appeal the 6 th appellant made one more
additional appeal stating that there was no procedural compliance to S 7B of
POCA, by the Board in respect to their detention.

The federal courts decision by a majority dismissed the appeals by all the six
appellants. Pursuant to the order, the respective appellants were detained at
the respective Pusat Pemulihan Khas (PPK).

3.0 CONSTITUTIONAL ISSUE

1) Whether s 15B of POCA is unconstitutional by virtue of art 4(1) Federal

Constitution (FC).

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 2) Whether there was any procedural non-compliance with s 7B of POCA by
the Board.

Corollary (Bersamaan) to the above issues there were four points ie: (i)
whether s 15B POCA which was enacted under art. 149 of the Federal
Constitution ('FC') which ousts the jurisdiction of the courts to perform judicial
review, is unconstitutional by virtue of art. 4(1) of the FC; (ii) whether the
ouster clause in s. 15B POCA was an attempt by Parliament to suppress
constitutional powers given to the courts as provided under art 121(1) FC; (iii)
whether s. 15B of POCA encroaches on judicial power thus breaching the
doctrine of separation of powers; (iv) whether s 15B of POCA which sought to
oust the courts from exercising their rights under art 4(1) FC contravened that
very article and to that extent contravened the "basic structure" of the FC.

4.0 GROUNDS OF JUDGEMENT

The Federal Court judges majoritily dismissed all six appellants appeals on
the following grounds:

1) POCA sections 15B and 21A were drafted with article 151(3) in mind ie both
subsections 15B and 21A of the POCA were enacted to implement the aim
and objective of the POCA, as well as FC articles 149 and 151(3). As
subsections 15B and 21A POCA originated from article 149 of the
Constitution and were bolstered by article 151(3) of the Constitution, section
15B was valid because it was created to strengthen the emphasis on national
interest under article 151(3). In accordance with article 151(3) of the FC and
section 21A of the POCA, the authority was prohibited from disclosing
information that would be against the national interest. The competent
executive would have the authority to determine what the public interest was
in this particular appeal.
2) Article 149 of the Constitution authorised Parliament to enact the POCA,
including section 15B. While article 4 of the Federal Constitution (FC)
declared that the FC was the ultimate law of the land and outlined
circumstances in which legislation adopted by Parliament may be contested.
Article 4(1) would apply if section 15B(1) POCA was inconsistent with
constitutional provisions that gave legitimacy and legal force, such as article

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 149 FC. In this instance, article 149 was not conflicting with article 4(1)
because it authorised the legislature to enact legislation against subversion
and public order. In light of article 4(1) of the FC, section 15B of the POCA,
which limited judicial review by the courts to solely procedural violations, was
not unconstitutional.

3) Separation of powers is alive and well within the system. There should be no
fear of power abuse or infringement on the rights of the citizen if each branch
is mindful of and understands its respective function in carrying out that job
responsibly. As much as it is the responsibility of the court to interpret laws, it
is also the responsibility of the legislature to pass laws, so long as it does so
in accordance with article 159 of the FC. Consequently, the test of
constitutionality to be developed by the courts in determining whether a
challenged provision is constitutional or not and "to what extent the doctrine
(of separation of powers) applies" depends on the provision of the
constitution, even if it is inconsistent with the doctrine. By limiting judicial
review to procedural non-compliance pursuant to section 15B POCA,
Parliament did not infringe upon the judicial powers of the court in this
instance, as it was within their authority to do so. In using these powers, the
court complied with and was constrained by POCA, a federal statute. Thus,
Section 15B POCA was not in conflict with Article 121(1) of the FC.

4) The wording in section 15B of the POCA was clear and unambiguous, since it
clearly prohibited judicial review of the Board's decision save in cases of
procedural noncompliance. Given that section 15B was passed under article
149 of the FC and was framed with foresight and clarity, it was not the court's
role to give a different interpretation than that intended by the legislature.

5) Applying the doctrine of stare decisis, this court was bound to abide by the
principle establishing that art 4(1) of the FC (as expounded in both Semenyih
Jaya and Indira Gandhi) was sacrosanct and placed an express duty on the
courts to subject any statute or Executive action or omission arising therefrom
to scrutiny, when challenged, to ensure that it complied with the FC.
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6) It was important to emphasise that there was a difference between the
concept of judicial review and the remedies available in respect of judicial
review. In Semenyih Jaya and Indira Gandhi comprised authority for the
proposition that judicial review was a concept that formed a part of the basic
structure of the FC. However, remedies were separate and were found largely
in ordinary law. The Legislature had the right to truncate remedies. But the
fundamental concept of judicial review or judicial scrutiny as enshrined in art 4
FC could not be removed, abrogated or truncated.

7) The FC as it stands must be interpreted objectively in the context of the nation

as a constitutional monarchy based on parliamentary democracy. Consider it
holistically. Unjust, arbitrary, irrational, harsh, or disproportionate laws were
not considered. Thus, the courts and judicial power existed to verify that our
legislation' substantive and procedural content did not violate the FC's
guarantees. Article 149 of the FC authorises the suspension of fundamental
rights in arts 5, 9, 10 and 13 but must comply with arts 4, 8, 121 and 151.
These concepts were unaffected by the Reid Commission reports' history.
They clearly allowed for the same but later decided that a single document
could not cover the many and varied reliefs needed for FC offences, thus this
was better left to ordinary law. This did not affect the separation of powers
and rule of law, which required the judiciary to check the other two branches
of government. Judicial power and remedies could not be curtailed by
ordinary or federal legislation.

8) In view of the interpretation that judicial power under the FC had always
remained intact, section 15B POCA could not have the effect of removing the
courts' authority to examine legislation and Acts enacted in response to such
legislation to assure their constitutionality. The scope and breadth of article
4(1) FC in relation to section 15B POCA were, however, limited. The impact of
section 15B POCA being deemed unconstitutional was to let the courts to
judicially examine the decision in question, utilising the full powers of judicial

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 review available to a court of law performing its supervisory function. It did not
always follow that the Board's act or judgement was invalid or void.

9) Ouster clauses addressed the constitutionality or lack thereof of legislation on

the basis of its substantive merits. In this scenario, if ouster clauses were
permitted to prevail, the right of challenge in Article 4(1) of the Constitution
would be diminished. The prerogative writs, such as judicial review and
habeas corpus, were the means or vehicle by which Article 4(1) of the Federal
Constitution was given life or effect. If these procedural or adjectival means of
contesting the legality of a law were not permitted, article 4(1) of the
Constitution would be rendered null or ineffective. Consequently, any statutory
measure adopted with the intent of removing the court's authority to determine
the constitutionality of a provision violated article 4(1) of the FC. Such a
violation rendered invalid any such statutory requirement. Hence, the right of
challenge of adopted legislation could not be removed, and consequently, S
15B POCA was null and void.

5.0 LEGAL CRITIQUE

The legal rule that can be derived from the case to guide future conduct in this
area of Judicial power and separation of power is as follows:-

1. The legal rule is that S. 15 of POCA is constitutional. Although it purports

to limit the excise of judicial power it is not ultra vire of the FC.
In this case, the issue arose on whether POCA is unconstitutional. The
court held that POCA was enacted by the Parliament under Art.149(1) FC.
As a result, it is vital to have a discussion on the extent to which Article
149(1) of the Federal Constitution permits the legislative to interfere in the
law. The court referenced Article 4 of FC, which declares that the FC is the
supreme law of the land and that any law that is passed that is
inconsistent with the FC must be void.

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2. The validity of the law passed by parliament shall be in line with that
presented under the FC. In Malaysia, we practiced constitutional supremacy,
whereby every regulatory body shall comply with the constitution. This
includes Parliament, as Malaysia didn’t not practice Parliament supremacy. In
another word, the validity of law passed by the Parliament under Art.149 must
comply with the conditions precedent and the manner and form prescribed
under the FC.

3. POCA is only invalid if it can be proven that the action is prejudicial to

public order.
In the context of POCA, Parliament may restrict fundamental rights on
grounds of public order and national security premised on Article 149(1)(a)
and (f) of the FC which provides that: “Legislation against subversion, action
prejudicial to public order, etc. Hence, in order to prove the invalidity of POCA,
the appellants must prove to the court that POCA is not action prejudicial to
public order.

4. It must be noted that an order for detention cannot be questioned in any

court of law as it is the discretion of the Executive. Detainees has a right to
apply for a writ of habeus corpus and judicial review towards a detention order
made by the prevention of crime Board. Detainee can only question the
procedural compliance aspect ie whether followed or not by the board to be in
line with S. 7B of POCA.

5. Ouster clauses similar to S. 15B of POCA has been established by courts

as being constitutional.

6. the burden of prove lies on the party who present the challenge as in the
case of PP v Datuk Harun Hj Idris.

In my personal opinion in going forward and to avoid clashes between

legislative and judiciary it may be best to have former retried members of the
judiciary who have a mountain of wealth of experience to be allowed to sit in
the legislative process as the legislative process is a legal one and this will
trash out problems of the judiciary ones it becomes law at a much later stage.
This will still be considered as separation of powers unlike in the United

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Kingdom where you have the present judiciary participating actively in the
legislature aspect.

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