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 ZAIDI BIN KANAPIAH v ASP KHAIRUL FAIROZ BIN RODZUAN AND
OTHER CASES
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3 MLJ 759

Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases
[2021] MLJU 668
Malayan Law Journal Unreported

FEDERAL COURT (PUTRAJAYA)

TENGKU MAIMUN TUAN MAT CHIEF JUSTICE, VERNON ONG LAM KIAT, ZALEHA YUSOF, HASNAH
MOHAMMED HASHIM AND RHODZARIAH BUJANG FCJJ
CASE NOS 05(HC)-153-11 OF 2020(W), 05(HC)-155-11 OF 2020(W) AND 05(HC)-156-11 OF 2020(W)
27 April 2021

Gopal Sri Ram (Gobind Singh Deo, Jacky Loi Yap Loong, Nur Aminathul Mardiah bt Md Nor and Sara Ann
Chay with him) (TY Teh & Partners) for the appellants.
Muhammad bin Sinti (Zulkipli bin Abdullah, Nur Jihan bt Mohd Azman, Shahidah Nafisah bt Leman and
Muhamad Safuan bin Azhar with him) (Senior Federal Counsel, Attorney General’s Chambers) for the
respondents.

Tengku Maimun Tuan Mat Chief Justice:

GROUNDS OF JUDGMENT

Introduction

[1] Article 5(1) of the Federal Constitution (‘FC’) guarantees that no person shall be deprived of life or personal
liberty save in accordance with law. While our constitutional jurisprudence has read into Article 5(1) many other
implied rights under the banner of a broad, generous and liberal interpretation, one must not forget that detention –
especially preventive detention – is the most basic deprival of personal liberty.

[2] In this regard, Article 5(2) is an expressly enumerated provision guaranteeing judicial supervision and protection
over those who have been unjustifiably detained in contravention of the law. The mechanism for its enforcement
(itself an inherent judicial power) is statutorily codified in paragraph 1 of Schedule 1 of the Courts of Judicature Act
1964 (‘CJA 1964’).

[3] These appeals, which involve three different appellants/detenus and four common respondents, call into
question the application of these very elementary principles. These appeals also once again call into question
judicial power but specifically as regards the constitutional validity of certain provisions of the Prevention of Crime
Act 1959 (‘POCA 1959’) (post amendment in 2014) and certain administrative acts effected pursuant to those and
other provisions leading up to the eventual detention of the three appellants. Apart from the above, these appeals
raise questions on the breadth and application of Article 149 of the FC vis- à-vis section 4 of POCA 1959.

[4] I remind myself of the cardinal principles on habeas corpus that the burden to justify the legality of a detention
rests on the detaining authority (see the pronouncements of this Court in Chua Kian Voon v Menteri Dalam Negeri
& Ors [2020] 1 CLJ 747 (‘Chua Kian Voon’) at paragraph 14 and SK Takaliswaran Krishnan v Menteri Dalam
Negeri, Malaysia [2009] 6 CLJ 705, at paragraph 5).
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Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

[5] The above principle is in accord with the very language of Article 5(2) of the FC having regard to the words
‘unless satisfied that the detention is lawful’. The burden is constitutionally thrusted upon the detaining authority to
establish to the Court’s satisfaction that any given detention is lawful.
Background Facts

[6] The facts of these appeals are as gathered from the judgment of the learned Judicial Commissioner (‘JC’) and
from the submissions of parties. I respectfully adopt them subject to some modifications.

[7] The appellants/detenus were initially detained by the Malaysian Anti-Corruption Commission (‘MACC’) in a
specific investigation on corruption within the police force. The appellants, who were later released on MACC bail
were then subsequently arrested and taken into immediate custody by the police under section 3(1) of the POCA
1959. The appellants assert that they are material witnesses in that MACC investigation and that they were
detained by the very police officers who were the subjects of that corruption investigation.

[8] The basis for the detention of the appellants under POCA 1959 was purportedly pursuant to the Common
Gaming Houses Act 1953 (‘CGHA 1953’). This must be read together with section 4 of POCA 1959 which stipulates
the procedure before a Magistrate and section 22 of POCA 1959 which confers power on the Minister to amend the
Schedules to POCA 1959. Vide an amendment to the Schedules in 2014, item 5 was inserted in the First Schedule.
Item 5 provides that all persons concerned in the organization and promotion of unlawful gaming constitute a
registrable category of persons for the purposes of POCA 1959.

[9] On 14.10.2020, the appellants were produced before the 2nd respondent, the Magistrate, who ordered their
remand for a period of 21 days under section 4(1) of POCA 1959 (‘First Remand’). The First Remand was to expire
on 3.11.2020 but on 21.10.2020 the appellants filed the present applications for habeas corpus.

[10] The return date for the habeas corpus applications was fixed on 2.11.2020. On 30.10.2020, the 1st and 3rd
respondents produced the appellants again before a Magistrate for a fresh remand order. A new remand order for a
period of 38 days was issued on the same date (‘Second Remand’).

[11] When the applications for writ of habeas corpus (premised on the First Remand) came up for hearing on
2.11.2020, learned Senior Federal Counsel (‘SFC’) for the respondents recorded an objection against the
applications to wit, that the habeas corpus applications had become academic on account of the Second Remand.

[12] The learned JC agreed with the respondents. He held that the issue of the appellants’ detention had become
academic by virtue of the Second Remand. His Lordship nevertheless proceeded to examine the applications on
their merits. He did not appear to address the arguments raised by the appellants on the constitutional issue but
focussed his attention mostly on whether the detention was coloured by mala fides. He concluded that the
appellants had not made out a case to entitle them to the remedy of habeas corpus. The applications were thus
dismissed and, hence these appeals.

[13] I have read the majority judgment in draft of my learned sister Justice Hasnah Mohammed Hashim and it is
with deep regret that I do not share her views for the reasons stated in this judgment.
The Appeals

[14] Before us, learned SFC submitted that there have been further developments in the case. He claimed to have
information from the Advisory Board that the appellants have been further detained under section 19A(1) of POCA
1959 for a period of two years beginning 25.11.2020. Learned counsel for the appellants took issue with this
submission, contending it to be an averment from the Bar. With respect, we agree with the appellants. In any event,
the gist of the complaint as well as the prayer for habeas corpus relates to the First Remand and the detentions
continuing therefrom. In the circumstances, whether the appellants were subsequently detained by virtue of the
decision of the Advisory Board is not materially relevant to these appeals.

[15] In this judgment, I shall confine my analysis primarily to the First Remand as adjudicated by the Court below
as it is the initial detention upon which all the subsequent detentions are predicated.
Part ies ‘ Submiss ions

[16] Learned counsel for the appellants made the following five-fold arguments.

[17] Firstly, he argued that the entirety of section 4 of POCA 1959 is unconstitutional. Secondly, that the
preliminary objection by the respondents that the application is academic is invalid in light of Article 5(2) of the FC.
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Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

He contended that the detention must be viewed as a cumulative transaction and not piecemeal. Thirdly, that the
detention is tainted by mala fides. Fourthly, the Minister’s exercise of power under section 22 of POCA 1959 to
include the CGHA 1953 in Item 5 of the First Schedule to POCA 1959 is ultra vires Article 149(1) of the FC. Fifthly,
and as a result, the statement of facts delivered under section 4(1) of POCA 1959 do not coincide with the recital in
POCA 1959.

[18] Learned counsel Datuk Seri Gopal Sri Ram submitted that on all the above grounds, or any one of them, the
appellants’ detentions are unlawful and that accordingly, they ought to be granted, as of right, a writ of habeas
corpus ordering their release.

[19] It is a trite principle of law that if the detaining authority fails to justify the lawfulness of a detention, habeas
corpus must issue as of right unlike other prerogative writs such as certiorari which the Court otherwise has
discretion to refuse even if the breach is proved (see the judgment of this Court in Mohammad Azanul Haqimi Tuan
Ahmad Azahari v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2019] 8 CLJ 465 affirming the dictum of
Abdoolcader J in Yeap Hock Seng @ Ah Seng v. Minister of Home Affairs, Malaysia & Ors [1975] 2 MLJ 279, at
page 281).

[20] The respondents’ submission, as I understand it, is as follows: that the present dispute is academic in light of
the Second Remand; that section 4 of POCA 1959 is constitutionally valid, that the insertion of the CGHA 1953 in
Item 5 and the statement of facts delivered thereunder are within the general purview of Article 149(1) of the FC,
that the detention was not mala fide and that all the impugned detentions are in accordance with the law namely the
FC and POCA 1959.
Findings/Analysis

[21] It would be more cogent for me to begin this judgment by first addressing the preliminary objection followed by
a discussion on section 4 of POCA 1959 and the interrelation between section 22 of POCA 1959 as well as Item 5
of the First Schedule of POCA 1959 and Article 149(1) of the FC. The remaining arguments will be addressed
wherever relevant.
Preliminary Objection – Whether these Appeals are Academic

[22] Learned counsel for the appellants argued that in any given case, the fact of detention must be viewed as a
whole and as a single cumulative transaction. Learned counsel placed heavy reliance on the judgment of this Court
in Mohamad Ezam bin Mohd Noor v Ketua Polis Negara & Other Appeals [2002] 4 MLJ 449 (‘Ezam’). He urged us
not to depart from the reasoning of this Court in Ezam.

[23] In response, En. Muhammad Sinti, learned SFC relied on decisions of this Court subsequent to Ezam, among
others, Mohd Faizal Haris v Timbalan Menteri Dalam Negeri, Malaysia & Ors [2005] 4 CLJ 613 (‘Faizal Haris’) and
L Rajanderan R Letchumanan v Timbalan Menteri Dalam Negeri Malaysia & Ors [2010] 7 CLJ 653 (‘Rajanderan’).
Faizal Haris and Rajanderan decided that a writ of habeas corpus must be directed only against the current
detention order even if the earlier arrest and detention of the detenu is irregular. It was thus submitted by learned
SFC that each detention order must be viewed in isolation. Once one order lapses, a new writ of habeas corpus
must be applied in respect of the subsequent decision to detain.

[24] Counsel for the appellants had, in essence, two responses to the above argument. He submitted firstly, that
the five-justices bench in Ezam was a larger bench and thus, the benches in Faizal Haris and Rajanderan (three-
justices benches) ought not to have departed from Ezam.

[25] Secondly, and in terms of substance, the appellants’ submission is that Ezam is the more legally coherent
decision and one which should be preferred over the latter two judgments and other subsequent pronouncements
made contrary to it. In support of his contention, learned counsel referred us to numerous authorities both local and
foreign (specifically those from India and Ireland).

[26] At the outset, I wish to state that in my view, it is not abhorrent for us to refer to Indian and Irish judgments for
this area of the law. Our constitutional provisions are crafted and related jurisprudence has developed in quite the
same way due to our analogous constitutional provisions. I propose to deal with a few of these authorities later in
this judgment.

[27] In Ezam, the detenus had been detained under section 73 of the now repealed Internal Security Act 1960 for
planning street demonstrations. The High Court found that the detentions were valid. The detenus appealed.
Parties opposing the appeal argued that as the detenus had since been released, the argument in respect of the
legality of their detention had become academic. Abdul Malek Ahmad FCJ writing the judgment on this aspect of
 Page 4 of 23
Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

the case rejected that argument. His Lordship had this to say on the preliminary objection raised, at pages 481-
482:

“As for the first preliminary objection, he stressed that since the second appellant had been released, his appeal was no
longer a living issue and was purely academic. As for the second preliminary objection, he reiterated that the other four
appellants were no longer under police custody as the minister had ordered them to be detained under zs 8(1) of the ISA
with effect from 2 June 2001. This undisputed fact makes mockery, he said, of the fact that the applications for habeas
corpus are directed not against the minister but against the Inspector-General of Police (‘the IGP’) as the respondent. Since
they were no longer under police custody under s 73 of the ISA, he added, the appeal has been rendered academic. The
appropriate course of action, he suggested, was to file a writ of habeas corpus against the minister.

After a short recess, we unanimously held that the issue is still alive in view of the finding of the High Court that the
detentions of the five appellants are lawful and decided that there was no merit to the preliminary objections. We
accordingly ordered the appeals to proceed on the next hearing date.”.

[28] At the time the preliminary objection came to be decided, it was a bench of five comprising Dzaiddin CJ, Wan
Adnan PCA, Steve Shim CJSS, Abdul Malek Ahmad FCJ (as he then was) and Siti Norma Yaakob FCJ (as she
then was). Wan Adnan PCA passed away after the decision on the preliminary objection. The ratio in Ezam’s case
is that detentions must be looked at as a whole. If the detention is found to be lawful, then the matter is not
academic. Applying the ratio in Ezam to these appeals, as the learned JC found that the appellants’ detention was
lawful, I conclude that the present appeals are not academic.

[29] In so concluding, I also find support in the judgment of the Privy Council in an appeal from the Court of Appeal
of Belize. In Fuller v AG of Belize (2011) 79 WIR 173, Lord Phillips observed thus at page 195:

“Because it is not, in reality, the appellant’s right to liberty that is at the heart of this appeal, Mr Lewis’s submission
that he has no cause to complain because he has been released on bail is off target. There is no merit in that
contention in any event. It is well established that on an application for habeas corpus an applicant on bail is to be
treated as if he were in custody: see R v Secretary of State for the Home Dept, ex p Launder (No 2) [1998] QB 994 at
1000–1001. The legality of bail depends upon the legality of the prior detention and it must be open to a person
who has been bailed to challenge his being subjected to bail on the ground that this was a consequence of the
violation of his right to liberty.”. [Emphasis added]

[30] As regards Faizal Haris and Rajanderan, it is sufficient for me to refer only to Faizal Haris. This is because
Rajanderan did not refer to Ezam but followed Faizal Haris in which case Augustine Paul FCJ made the following
observations at page 629:

“However, the conclusion was reached not on the rationale as discussed in this judgment but on the principles enunciated
in Karam Singh v. Menteri Hal Ehwal Dalam Negeri, Malaysia [1969] 2 MLJ 129. Such an approach would leave
unanswered the effect of procedural irregularities in an earlier detention which has been superseded by another detention
order. Be that as it may, that case made it clear that a court has no jurisdiction to hear a writ filed against the police for
irregularities in a detention order under s. 73(1) of the Internal Security Act 1960 when it had been superseded by one
under s. 8(1) thereby bringing into sharp focus the propriety of the judgment of this court in Mohamed Ezam Mohd Noor v.
Ketua Polis Negara & Ors [2002] 4 CLJ 309. The rationale underlying this judgment would, with respect, render the stand
taken in the latter case unsustainable in law.”.

[31] This Court in Faizal Haris thus effectively overruled Ezam. Given the line of argument and the divergent views
on the two lines of authorities, it is pertinent to re-examine the law on this subject.

[32] The first point is on the difference between larger and smaller benches. In this regard, this is what Peh Swee
Chin FCJ observed in Dhalip Bhagwan Singh v Public Prosecutor [1998] 1 MLJ 1 (‘Dhalip’), at page 14:

“In this connection, the question of a ‘full court’ or a panel of Federal Court comprising more than three members as
compared with the ordinarily constituted coram of three members of the same court, arises for consideration. In view of the
reasons about departing from its previous decisions advanced above, the effect or weight of a decision of a ‘full court’ and
that of an ordinary coram is the same by necessary implication. A full court or a panel larger than the ordinary coram is
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Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

usually indicated such as when an unusually difficult or controversial question of law is involved, or a question arises as to
whether a previous decision of the Federal Court ought to be overruled.”.

[33] The above passage, to my mind, establishes two principles. Firstly, strictly speaking within the context of our
written law, there is no difference in law between a judgment delivered by a smaller bench or a larger bench. This
may be inferred from section 77 of the CJA 1964 which provides that ‘proceedings shall be decided in accordance
with the opinion of the majority of the Judges comprising the Court’. In terms of written law therefore, the number of
judges from case to case does not strictly matter. This is because the majority judgment of the Court generally
becomes law and binding precedent in all subsequent cases. It is not therefore a ground per se to overrule a
subsequent decision of the smaller bench which had departed from the larger bench.

[34] Be that as it may, the second portion of the passage establishes that the number of judges from case to case
is nonetheless relevant in terms of the principles of stare decisis – a principle followed assiduously by our courts for
nearly a century though it is not expressly contained in our written law. Viewed from this angle, the above dictum of
Peh Swee Chin FCJ suggests that the strength and size of a bench in a previous case is one relevant factor when
determining whether or not that previous decision ought to be followed in a subsequent case.

[35] Minimally, the non-compliance of a smaller bench of the same Court in a subsequent case to a decision of the
Court delivered by a larger bench in the previous case goes to judicial integrity and courtesy. Dhalip explained the
circumstances in which the apex Court ought to depart from its previous decisions which is an exercise not
governed by the FC or statute. While it is true that there is no legal basis in written law to hold a smaller bench to
the decision of a larger bench in a previous decision, it is a matter of stare decisis and judicial policy aimed at
preserving public confidence in the Judiciary.

[36] The importance of adherence to the doctrine of stare decisis lies in the fact that it has become the cornerstone
of the common law practiced in this country. It is fundamental that decisions of the Courts, especially of the apex
Court, ought to be consistent, in the interests of finality and certainty in the law. Otherwise the public and lawyers
who have regulated their affairs in reliance on a ratio decidendi before it is overruled will face difficulty and
confusion in organising their affairs around such judgments and this in turn will affect public confidence in the
Judiciary (see Dato’ Tan Heng Chew v Tan Kim Hor [2006] 2 MLJ 293; Public Prosecutor v Datuk Tan Cheng
Swee & Anor [1980] 2 MLJ 276. See also Kerajaan Malaysia & Ors v Tay Chai Huat [2012] 3 MLJ 149). If a
smaller bench in one case refuses to follow a decision of a larger bench in a previous case deciding the same point
of law, the correctness of the decision of that smaller bench ought to be subjected to a higher scrutiny by a
subsequent panel of the Court – more so in constitutional cases and cases involving fundamental liberties.

[37] With these principles in mind, I now turn to scrutinise with respect, the judgment of this Court in Faizal Haris
(supra) in light of its expressed departure from Ezam.

[38] In Faizal Haris, the Court found that the initial arrest and detention of the detenu was irregular and legally
invalid. But after being arrested by the police under the Dangerous Drugs (Special Preventive Measures) Act 1985
which arrest was called into question and against which the writ of habeas corpus was sought, the detenu was
subsequently detained by order of the Minister. The three judges of this Court namely: PS Gill FCJ, Richard
Malanjum FCJ (as he then was) and Augustine Paul FCJ decided that in light of the subsequent detention by the
Minister, the earlier detention by the police was no longer relevant.

[39] For the reasons that follow, I am more inclined to accept the reasoning of the unanimous five-judge panel in
Ezam.

[40] Ezam when read properly and in context posits the ratio decidendi that the legality of a detention or detentions
must be viewed as a single overarching transaction. This is because the legality of the detention must be addressed
at the time the application for habeas corpus was made. The subsequent release (and by extrapolation the
extended detention) in light of a finding of lawfulness or unlawfulness of the initial detention renders the entire issue
of detention a live matter. Faizal Haris rejected this view on the basis of English and common law authorities and by
referring to local judgments which referred to such authorities. For instance, at page 628, Augustine Paul FCJ noted
as follows:

“Thus any irregularity in a detention order made under s. 3(2) when it has been superseded by one under s. 6(1) is not a
relevant matter for consideration. In this regard The Law of Habeas Corpus, 2nd edn, by RJ Sharpe says at p 179:

It has been held consistently that the relevant time at which the detention of the prisoner must be justified is the time at
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Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

which the court considers the return to the writ. This rule means that nothing which has happened before the present
cause of detention took effect will be relevant to the issue before the court, unless by reason of some special
consideration arising from the particular proceedings.

And at p 186:

On the present state of the law, in almost every instance, the relevant time at which the detention is to be justified is
the time at which the court considers the case. Prior illegality will not be relevant unless by reason of some special rule
derived from the particular nature of the proceedings involved.”.

[41] Faizal Haris made no reference to Article 5(2) of the FC. In stark contrast, the Court in Ezam was apprised of
that constitutional provision as is apparent from the separate judgment of Siti Norma Yaakob FCJ (as she then was)
at page 517 observing thus:

“Clearly, it is the legal status of the detention that determines whether habeas corpus can issue to secure the freedom of a
detained person as guaranteed by art 5(2) of our Constitution.”.

[42] I mentioned earlier that it is not inimical to our constitutional jurisprudence to refer to Indian and Irish
jurisprudence. In this regard, I recall the commentary by Sir Ivor Jennings to the draft of the FC where he indicated
that the drafters of our FC drew inspirations from the written Constitutions of Ireland, India and the United States
(among others).

[43] It is important to note that the United Kingdom’s unwritten constitution does not contain written guarantees of
protection for fundamental rights. Neither does it have a constitutionally ordained enforcement mechanism.
Whereas in Malaysia, we have these protections in Article 4(1) of our FC read together with Part II (Fundamental
Liberties) and supplemented by paragraph 1 of the Schedule to the CJA 1964.

[44] Accordingly, it is my respectful view that the smaller benches in Faizal Haris and later cases ought not to have
confined and restricted themselves to the jurisprudence of English law in this otherwise wide area of our
constitutional law.

[45] The constitutional authority upon which the Court derives its power of review over preventive detention is
Article 5(2) of the FC. For completeness, the provision is reproduced below:

“(2) Where complaint is made to a High Court or any judge thereof that a person is being unlawfully detained the court shall
inquire into the complaint and, unless satisfied that the detention is lawful, shall order him to be produced before the court
and release him.”.

[46] Learned counsel for the appellants submitted that Article 5(2) was taken from Article 40(4)(2) of the Irish
Constitution 1937 which provides as follows:

“Upon complaint being made by or on behalf of any person to the High Court or any judge thereof alleging that such person
is being unlawfully detained, the High Court and any and every judge thereof to whom such complaint is made shall
forthwith enquire into the said complaint and may order the person in whose custody such person is detained to produce
the body of such person before the High Court on a named day and to certify in writing the grounds of his detention, and
the High Court shall, upon the body of such person being produced before that Court and after giving the person in whose
custody he is detained an opportunity of justifying the detention, order the release of such person from such detention
unless satisfied that he is being detained in accordance with the law.”.

[47] The submission made by learned counsel is not without basis. Sir Ivor Jennings in commenting on Draft Article
3(2) of the FC which later came to be the present Article 5(2) had this to say:

“(2) is taken with verbal amendments from Eire 40(4)(b). It has not been thought necessary to include 40(4)(c). “Habeas
corpus” need not be suspended in time of emergency, because emergency regulations, which will have the force of law,
may authorise detention without trial, and no provision is being inserted corresponding to India 22 or Pakistan 7.”.

[48] By way of observation, the above comment suggests that the right to habeas corpus is not excluded even if
Article 150 and by extension Article 149 expressly exclude Article 5.
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Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

[49] Upon reading the two provisions (Malaysian and Irish) side by side, they are substantially the same and thus
Irish jurisprudence on the subject is of strong persuasive authority given our drafters’ reference to it. Similarly, the
Indian position would be of high persuasive authority in light of Article 22 (to which the drafters also referred) as well
as Articles 32 and 226 of the Indian Constitution upon which paragraph 1 of the Schedule to the Malaysian CJA
1964 is mirrored.

[50] The Irish Courts have interpreted their Article 40(4)(2) as follows in State (Trimbole) v The Governor of
Mountjoy Prison [1985] I.R. 550, at pages 571-572:

“In the course of his judgment on this application the learned trial judge held that the purported arrest of the prosecutor on
the 25th October, 1984, was a conscious and deliberate violation of his constitutional rights and there has been no appeal
against that finding. The consequence of and the attitude of the courts to a conscious and deliberate violation of
constitutional rights has been laid down in a number of cases. In The State (Quinn) v. Ryan [1965] I.R. 70, which was
concerned with the detention and deportation of a person in such a manner as to prevent him having access to the court for
the purpose of initiating an enquiry as to the legality of his detention under Article 40 of the Constitution, Ó Dálaigh C.J. in a
judgment with which the other members of this Court agreed, at p. 122, stated as follows:—

“It was not the intention of the Constitution in guaranteeing the fundamental rights of the citizen that these rights
should be set at nought or circumvented. The intention was that rights of substance were being assured to the
individual and that the Courts were the custodians of these rights. As a necessary corollary it follows that no one can
with impunity set these rights at nought or circumvent them, and that the Courts’ powers in this regard are as ample as
the defence of the Constitution requires. Anyone who sets himself such a course is guilty of contempt of the Courts
and is punishable accordingly.”“.

[51] And, of the many Indian authorities advanced before us, it is sufficient to only refer to two of them. The first is
Vimal Kishore v State of UP [1956] AIR All 56, where at page 59, the Court held as follows:

“The learned Deputy Government Advocate argued that even if there was non- compliance with Clause (1) of Article 22 of
the Constitution at one time, that does not render the present detention of the petitioner unlawful. Reliance was placed
upon the case of -- Ram Narayan Singh v. State of Delhi AIR 1953 SC 277 (E). In that case their Lordships of the Supreme
Court held that, in habeas corpus proceedings the Court is to have regard to the legality or otherwise of the detention
at the time of the return and not with reference to the institution of the proceedings. In the present case the writ petition
was moved on 23-5-1955. This Court fixed 27-6-1955 as the date of the return. We have therefore, to consider whether the
petitioner’s detention in jail on 27-6-1955 was unlawful.”. [Emphasis added]

[52] The other is the judgment of the Indian Supreme Court in Kanyu Sayal v District Magistrate, Darjeeling [1974]
AIR SC 510 (‘Kanyu Sayal’), at pages 512-513:

“It is now well settled that the earliest date with reference to which the legality of detention challenged in a habeas corpus
proceeding may be examined is the date on which the application for habeas corpus is made to the Court. This Court
speaking through Wanchoo, J., (as he then was) said in A.K. Gopalan v. Government of India (1966) 2 SCR 427 AIR 1966
SC 816:

‘It is well settled that in dealing with the petition for habeas corpus the Court is to see whether the detention on the
date on which the application is made to the Court is legal, if nothing more has intervened between the date of the
application and the date of hearing.’

In two early decisions of this Court, however, namely, Naranjan Singh v. State of Punjab 1952 SCR 395 AIR 1952 SC 106
and Ram Narain Singh v. State of Delhi 1953 SCR 652 AIR 1953 SC 277 a slightly different view was expressed and that
view was reiterated by this Court in B.R. Rao v. State of Orissa AIR 1971 SC 2197 where it was said:

‘In habeas corpus the Court is to have regard to the legality or otherwise of the detention at the time of the
return and not with reference to the institution of the proceedings”.
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Zaidi bin Kanapiah v ASP Khairul Fairoz bin Rodzuan and other cases [2021] MLJU 668

And yet in another decision of this Court in Talib Husain v State of Jammu & Kashmir: AIR 1971 SC 62 Mr. Justice Dua,
sitting as a Single Judge, presumably in the vacation, observed that ‘in habeas corpus proceedings the Court has to
consider the legality of the detention on the date of the hearing.’

Of these three views taken by the Court at different times, the second appears to be more in consonance with the law and
practice in England and may be taken as having received the largest measure of approval in India, though the third view
also cannot be discarded as incorrect, because an inquiry whether the detention is legal or not at the date of hearing of the
application for habeas corpus would be quite relevant, for the simple reason that if on that date the detention is legal, the
Court cannot order release of the person detained by issuing a writ of habeas corpus. But, for the purpose of the present
case, it is immaterial which of these three views is accepted as correct, for it is clear that, whichever be the correct view,
the earliest date with reference to which the legality of detention may be examined is the date of filing of the
application for habeas corpus and the Court is not, to quote the words of Mr. Justice Dua in B.R. Rao v. State of Orissa
AIR 1971 SC 2197 ‘concerned with a date prior to the initiation of the proceedings for a writ of habeas corpus’.”.

[Emphasis added]

[53] Malaysian authorities have also taken the same stance prior to Faizal Haris. For instance, in Theresa Lim Chin
Chin & Ors v Inspector General of Police [1988] 1 MLJ 293 (‘Theresa Lim’), at page 296, the Supreme Court
observed:

“To show further that evidence or information relating to arrests and detentions, either at the initial stage, or in pursuant to a
ministerial order, is excluded from public disclosure is section 16, which says that the Minister, or any member of an
Advisory Board, or any public servant shall not be required to disclose facts or to produce documents which he considers to
be against the national interest to disclose. Encik Sri Ram contended that this section is only confined to the provision of
“this chapter”, and since the chapter under which section 16 is enacted is preventive detention pursuant to a ministerial
order under section 8, it therefore cannot apply to the arrest at the initial stage pursuant to police power under section 73.
This argument could only be right if we accept that there are two preventive detentions. We do not accept that argument.
We regard that arrest and detention by the police and detention pursuant to a ministerial order or further detention
after the matter has been considered by the Advisory Board as one continuous process beginning with the initial
arrest and detention under section 73. We accept that the initial arrest and detention may or may not result in the issuing
of the ministerial order of detention under section 8, but nevertheless, it is within one scheme of the preventive detention
legislation.”. [Emphasis added]

[54] The judgments in Kanyu Sayal and Theresa Lim coherently flow with the line of reasoning adopted by this
Court in Ezam. The foregoing authorities establish the proposition that when a person is detained, the legality of his
detention is to be adjudicated by reference to the date the application for a writ of habeas corpus is filed. The
detaining authorities are not permitted to ‘shift the goal post’ – so to speak – by alleging that further or subsequent
detentions have been made with a view to render the argument on the impugned detention academic. In other
words, the detaining authority cannot rely on subsequent detentions to circumvent the illegality of the initial remand
or detention under challenge at the time of filing of the writ of habeas corpus. Accepting such an argument would
amount to condoning an abuse of the process of the Court and would unduly narrow the interpretation of Article 5(2)
– a safeguard of a fundamental liberty – against settled constitutional cannons of interpretation. It would also render
the safeguard in Article 5(2) illusory.

[55] Our jurisprudence has always been that it is the detenu who is allowed to benefit from every technical error
made by the detaining authorities and not the other way around (see Ng Hong Choon v. Timbalan Menteri Hal
Ehwal Dalam Negeri & 1 Lagi [1994] 4 CLJ 47, at page 55 and Re Datuk James Wong Kim Min [1976] 1 LNS 129;
[1975] 2 MLJ 244 at page 251).

[56] Given the weight of authorities, I hold with respect that Ezam is the correct decision and the one that ought to
be followed. Faizal Haris, Rajanderan and other cases such as Kerajaan Malaysia & Ors v Nasharuddin Nasir
[2004] 1 CLJ 81 and Mohammad Jailani Kasim v Timbalan Menteri Keselamatan Dalam Negeri & Ors [2006] 4 CLJ
687 (and any other related decisions) that came after and departed from Ezam are no longer good law and cannot
be relied upon for the academic point raised by the respondents.

[57] It follows that the respondents’ preliminary objection that the present application for habeas corpus is
academic, is bereft of any merit. The preliminary objection is accordingly dismissed.
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[58] With that, I will now proceed to analyse the rivalling contentions in respect of section 4 of POCA 1959 that
forms the substantive legal basis for the First Remand.
Section 4 of POCA 1959, Act A704 and Article 121(1) read with Article 4 of the FC

[59] In advancing his case on the unconstitutionality of section 4 of POCA 1959, learned counsel for the appellants
posited that the constitutional amendment to Article 121(1) of the FC vide the Amendment Act A704 effective on 10
June 1988 is a nullity because it reduces the judicial arm of government to a subordinate or subjugate of
Parliament. Judicial power is in turn a ‘basic structure’ of the FC and accordingly Parliament had no authority to do
that. As such, the constitutional validity of section 4 of POCA 1959 must be tested against Article 121 as it stood
before 10 June 1988. And, since section 4 of POCA 1959 subordinates the judicial power of the Federation to the
Executive arm of government (specifically the Attorney General cum Public Prosecutor and the police), it is in that
vein, unconstitutional.

[60] In this regard, I shall deal firstly, with the concept of the basic structure doctrine and the post-amendment
Article 121(1) and as a consequence, Act A704.

[61] Article 121(1) of the FC, pre-amendment, provided as follows:

“121. Judicial power of the Federation

(1) Subject to Clause (2), the judicial power of the Federation shall be vested in two High Courts of co-ordinate
jurisdiction and status, namely –
(a) (a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal
registry at such place in the States of Malaya as the Yang di-Pertuan Agong may determine; and

(b) (b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and
shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong
may determine…,

and in such inferior courts as may be provided by federal law.”.

[Emphasis added]

[62] The post-amendment Article 121(1) provides as follows:

“121. Judicial power of the Federation

(1) There shall be two High Courts of co-ordinate jurisdiction and status, namely —

(a) one in the States of Malaya, which shall be known as the High Court in Malaya and shall have its principal registry
at such place in the States of Malaya as the Yang di- Pertuan Agong may determine; and
(b) one in the States of Sabah and Sarawak, which shall be known as the High Court in Sabah and Sarawak and
shall have its principal registry at such place in the States of Sabah and Sarawak as the Yang di-Pertuan Agong
may determine…,

and such inferior courts as may be provided by federal law; and the High Courts and inferior courts shall have such
jurisdiction and powers as may be conferred by or under federal law.”. [Emphasis added]

[63] The change complained of in all cases in which this issue has arisen is that the words “shall be vested” in the
pre-amendment Article 121(1) were removed. And, that the insertion of the words ‘the High Courts and inferior
Courts shall have jurisdiction and powers as may be conferred by or under federal law’ have effectively
subordinated judicial power to Parliament.

[64] It could be argued that the above words alone do not give rise to such an interpretation of subordination. The
prime source of these complaints in fact arises from, among other decisions, the judgment of this Court in Public
Prosecutor v Kok Wah Kuan [2008] 1 MLJ 1 (‘Kok Wah Kuan’) in particular, the following observations of Abdul
Hamid Mohamad PCA (as he then was):

“[10] There was thus a definitive declaration that the judicial power of the Federation shall be vested in the two High Courts.
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So, if a question is asked ‘Was the judicial power of the Federation vested in the two High Courts?’ The answer has to be
‘yes’ because that was what the Constitution provided. Whatever the words ‘judicial power’ mean is a matter of
interpretation. Having made the declaration in general terms, the provision went on to say ‘and the High Courts … shall
have jurisdiction and powers as may be conferred by or under federal law.’ In other words, if we want to know what are the
specific jurisdiction and powers of the two High Courts, we will have to look at the federal law.

[11] After the amendment, there is no longer a specific provision declaring that the judicial power of the Federation shall be
vested in the two High Courts. What it means is that there is no longer a declaration that ‘judicial power of the Federation’
as the term was understood prior to the amendment vests in the two High Courts. If we want to know the jurisdiction and
powers of the two High Courts we will have to look at the federal law. If we want to call those powers ‘judicial powers’, we
are perfectly entitled to. But, to what extent such ‘judicial powers’ are vested in the two High Courts depend on what federal
law provides, not on the interpretation the term ‘judicial power’ as prior to the amendment. That is the difference and that is
the effect of the amendment. Thus, to say that the amendment has no effect does not make sense. There must be. The
only question is to what extent?”.

[65] In that vein, arguments have since flooded this Court for the position that Act A704 is unconstitutional. There
has been no authoritative decision from this Court declaring the post-amendment Article 121(1) of the FC
unconstitutional. The two recent pronouncements of this Court in Semenyih Jaya Sdn Bhd v Pentadbir Tanah
Daerah Hulu Langat and another case [2017] 3 MLJ 561 (‘Semenyih Jaya’) and Indira Gandhi a/p Mutho v
Pengarah Jabatan Agama Islam Perak & Ors and other appeals [2018] 1 MLJ 545 (‘Indira Gandhi’) declared that
the post-amendment Article 121(1) had no effect of subordinating the Judiciary to Parliament without striking down
Act A704. This was affirmed, to some extent by a nine-justices bench in Alma Nudo Atenza v Public Prosecutor and
another appeal [2019] 4 MLJ 1 (‘Alma Nudo’).

[66] In Semenyih Jaya and Indira Gandhi, this Court observed that ‘judicial power’ is a basic structure of the FC
and cannot therefore be removed. It is in this context and in light of the arguments that I proceed to examine the
history of the basic structure doctrine (‘BSD’). But before I do that, for the record, the majority judgments of this
Court in Maria Chin Abdullah v Ketua Pengarah Imigresen & Anor [2021] 2 CLJ 579 (‘Maria Chin’) and Rovin Joty
a/l Kodeeswaran v Lembaga Pencegahan Jenayah & 4 Ors & Other Appeals [2021] 4 CLJ 1; [2021] MLJU 195
(‘Rovin Joty’) attempted to unravel the BSD although both the appellants and the respondents in these two cases
accepted that the BSD is part of our law and they were on common ground that Semenyih Jaya, Indira Gandhi and
Alma Nudo correctly propounded the law on judicial power and on the BSD. To clarify, the issue in Maria Chin and
Rovin Joty was essentially whether Parliament could exclude judicial review remedies from judicial power of the
Courts and whether the same forms part of the BSD, not whether the BSD applies to our FC.

[67] In holding that the BSD does not apply to our FC, the majority in Maria Chin and Rovin Joty, with the greatest
of respect, decided on a point which parties were not at variance and which point was not therefore an issue for the
Court’s determination. The majority decided that the BSD has no application to our FC on their own volition,
contrary to the position taken by the parties in those cases. It follows that the decisions of the majority in Maria Chin
and Rovin Joty that the BSD does not exist in our FC do not form the ratio decidendi as such, and cannot be treated
as having any binding effect on subsequent cases.

[68] Now, on to the BSD which is often attributed to the Supreme Court of India. The concept of the doctrine itself
however is not solely the creation of the Indian Courts but perhaps more attributable in principle to the Grundnorm
theory developed by an Austrian jurist, Hans Kelsen in his ‘Pure Theory of Law’.

[69] Kelsen lived at a time when the many States in Europe gained independence and started drafting their own
written constitutions. He himself was responsible for the drafting of the Austrian Constitution, and in recognition of
his work, was appointed to Austria’s constitutional court in the later part of his life. Although it is unclear to what
extent Kelsen had a hand in drafting the Constitution of Germany, Article 79 of it, which caters for the amending
procedure, provides as follows:

“Article 79: [Amendment of the Basic Law]

This Basic Law may be amended only by a law expressly amending or supplementing its text. In the case of an
international treaty regarding a peace settlement, the preparation of a peace settlement, or the phasing out of an
occupation regime, or designed to promote the defence of the Federal Republic, it shall be sufficient, for the purpose of
making clear that the provisions of this Basic Law do not preclude the conclusion and entry into force of the treaty, to
add language to the Basic Law that merely makes this clarification.
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Any such law shall be carried by two thirds of the Members of the Bundestag and two thirds of the votes of the
Bundesrat.

Amendments to this Basic Law affecting the division of the Federation into Länder, their participation on principle in the
legislative process, or the principles laid down in Articles 1 and 20 shall be inadmissible.”. [Emphasis added]

[70] Articles 1 to 20 of the German Constitution refer to Basic Rights (akin to Part II of our FC) and Article 79(3)
quite clearly stipulates that no amendments by virtue of the legislative process are admissible in respect of those
provisions.

[71] Reverting to Kelsen’s theory, it postulates that the Grundnorm is the ‘First Constitution’ and is presupposed to
be binding as the basis for validating all law. The Grundnorm may be perceived as the “higher order” which
validates even the Constitution. See: Julius Cohen, The Political Element in Legal Theory: A Look at Kelsen’s Pure
Theory, [1978] 88(1) Yale L.J. 1, at page 12.

[72] In the Malaysian context, it ought to be understood that the FC is itself a political document arising from the
most significant of political negotiations giving life to the Federation of Malaya and later, Malaysia. Unlike the Indian
Constitution which was drafted and passed by the Constituent Assembly, our FC is not a document devised by
selected representatives, but one negotiated for us by our founding fathers with the colonial power at the time.
Changing the basic features of the FC would result in a change of the Grundnorm or the First Constitution of this
country and thus effectively eliminate the very foundation of Malaysia itself. That in essence, is the thrust of the
BSD.

[73] In India, the BSD was finally recognised and applied in its landmark decision in Kesavananda Bharati v State
of Kerala & Anor (1973) 4 SCC 225 (‘Kesavananda’) where it held that the Indian Parliament’s amending power
under Article 368 is not absolute, and is subject to the condition that any purported amendments must not destroy
the basic features of the Indian Constitution. A primary feature of the Indian Supreme Court’s analysis centred
around the Preamble to the Indian Constitution. Our FC does not have a preamble.

[74] In Malaysia, the Indian notion of the BSD was rejected in Loh Kooi Choon v Government of Malaysia [1977] 2
MLJ 187 (‘Loh Kooi Choon’). It was raised subsequently in Phang Chin Hock v Public Prosecutor [1980] 1 MLJ 70
(‘Phang Chin Hock’). Post Phang Chin Hock, there exist other cases which discuss the BSD issue prior to
Semenyih Jaya (supra) and Indira Gandhi (supra). For this discussion however, reference to Loh Kooi Choon and
Phang Chin Hock is sufficient given the line of argument of learned counsel for the appellants.

[75] The main bone of contention arose from the following observations of Raja Azlan Shah FJ (as His Royal
Highness then was) in Loh Kooi Choon at page 190:

“This reasoning, in my view, is based on the premise that the Constitution as the supreme law, unchangeable by ordinary
means, is distinct from ordinary law and as such cannot be inconsistent with itself. It is the supreme law because it settles
the norms of corporate behaviour and the principle of good government. This is so because the Federation of Malaya, and
later, Malaysia, began with the acceptance of the Constitution by the nine Malay States and the former Settlements of
Penang and Melaka, by the acceptance of it by Sabah and Sarawak that entered the Federation in 1963, as “the supreme
law of the Federation … “(clause 1 of Article 4). It is thus the most vital working document which we created and possess. If
it is urged that the Constitution is on the same level with ordinary law, then the Constitution is an absurd attempt on the part
of the framers, to limit a power, in its own nature illimitable. In the context of clause (1) of Article 160, “law” must be taken to
mean law made in exercise of ordinary legislative power and not made in exercise of the power of constitutional
amendment under clause (3) of Article 159, with the result that clause (1) of Article 4 does not affect amendments made
under clause (3) of Article 159.”.

[76] This similar line of reasoning was adopted by Suffian LP in Phang Chin Hock where at page 72 his Lordship
observed that:

“In our judgment, in construing Article 4(1) and Article 159, the rule of harmonious construction requires us to give effect to
both provisions and to hold and we accordingly hold that Acts made by Parliament, complying with the conditions set out in
Article 159, are valid even if inconsistent with the Constitution, and that a distinction should be drawn between on the one
hand Acts affecting the Constitution and on the other hand ordinary laws enacted in the ordinary way. It is federal law of the
latter category that is meant by law in Article 4(1); only such law must be consistent with the Constitution.”.
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[77] Learned counsel for the appellants pointed to certain inconsistencies in the two judgments and their
contradicting reliance on Indian authorities. I do not think that those supposed discrepancies need to be examined
in such minute detail. It is sufficient to consider only how Articles 4(1) and 159(1) respectively of the FC ought to be
read together.

[78] From what I can gather, the opinion of the two benches in Loh Kooi Choon and Phang Chin Hock appears to
be this. ‘Law’ as appearing in Article 4(1) of the FC means the same thing as ‘federal law’ in Article 159(1) –
otherwise known as ‘ordinary law’. By confining the definition of ‘law’ in Article 4(1) to simple ‘ordinary law’, a law
amending the FC is not caught by the definition of ‘ordinary law’ and thus, any amendment to the FC cannot by
virtue of that interpretation be taken to conflict with Article 4(1).

[79] With respect, it will be noted that nowhere in the FC is the term ‘ordinary law’ employed or defined. Hence,
such a strained reading of Articles 4(1) and 159(1) of the FC is not supported by the very text of the FC. For ease of
reference, the said provisions are reproduced below:

“Article 4(1)

This Constitution is the supreme law of the Federation and any law passed after Merdeka Day which is inconsistent with
this Constitution shall, to the extent of the inconsistency, be void.

Article 159(1)

Subject to the following provisions of this Article and to Article 161E, the provisions of this Constitution may be amended
by federal law.”.

[Emphasis added]

[80] Article 160 defines ‘law’ as thus:

““law” includes written law, the common law in so far as it is in operation in the Federation or any part thereof, and any
custom or usage having the force of law in the Federation or any part thereof…”.

[81] ‘Federal law’ is in turn defined in the same Article as follows:

““federal law” means —

(a) any existing law relating to a matter with respect to which Parliament has power to make laws, being a law
continued in operation under Part XIII; and
(b) any Act of Parliament;”.

[82] Upon juxtaposing Articles 4(1) and 159(1) on Article 160, it is apparent that ‘law’ has a broader meaning than
‘federal law’. The only limiting factor in Article 4(1) are the words ‘any law passed’ which suggest that it is confined
to only written law as may be passed by Parliament or the State Legislatures. Nevertheless, even with the limitation
imposed on ‘law’ by the word ‘passed’, Article 4(1) remains the more broadly drafted provision than Article 159(1).
‘Federal law’ in Article 159(1) would also have to be passed. But while Article 4(1) uses ‘any law’, Article 159(1)
uses only ‘federal law’, an even more restricted and constitutionally defined term than ‘any law’.

[83] It might be added that Article 4(1) and 159(1) remain unchanged and unamended from Merdeka Day. The
phraseology of both provisions is thus per the original intent of the drafters of the FC.

[84] The other point to note is that Article 159(1) uses the words ‘provisions of this Constitution’ whereas Article
4(1) uses the words ‘this Constitution’. The words ‘this Constitution’ in Article 4(1) suggest something wider than the
words ‘the provisions of this Constitution’ as employed in Article 159(1) and even the post-amendment Article
121(1). It is an elementary canon of construction that when interpreting a statute or a constitutional provision, where
words are employed differently in different provisions, they were meant to refer to different things. The underlying
rationale is that the FC remains supreme and any law which is inconsistent with it is void. This may include any
constitutional amendment effected via federal law inconsistent with the FC generally. To my mind, this is the
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underlying rationale for the position taken by this Court in Semenyih Jaya (supra) and Indira Gandhi (supra) when it
referred to BSD in overruling its prior decision in Kok Wah Kuan (supra).

[85] By virtue of the above, with the greatest of respect, I am of the view that the reading of the word ‘law’ in Article
4(1) as being the same as ‘federal law’ in Article 159(1) is untenable. Article 159(1) allows Parliament to pass law
(having met the requisite numbers and other conditions) to amend the FC. Article 4(1) on other hand confers
supreme status to the FC and prevents all laws that are inconsistent with it from being enacted to the extent of
rendering them void. In this sense, federal law, even law to the extent that it seeks to amend the FC is caught by
the pervading reach of Article 4(1).

[86] As gleaned earlier, Article 4(1) has two limbs to it conjoined by the word ‘and’. The first part of it declares that
the FC is supreme. It does that not say that any particular provision of it is supreme, rather ‘this Constitution is the
supreme law of the Federation.’ This part is not merely a feeble declaration if we consider Kelsen’s postulated
theory of Grundnorm.

[87] The above also relates directly to the concept of constitutionalism a principle which itself validates the FC. One
author, Larry Backer explained it as follows in Larry Backer, ‘From Constitution to Constitutionalism: A Global
Framework for Legitimate Public Power Systems’ 113(3) Penn State Law Review 671, at page 676, as follows:

“A constitution without legitimacy is no constitution at all. It is outside the law in the sense that it ought to be respected by
the community against which it is applied… Legitimacy is a function of values, which in turn serve as the foundation of
constitutionalism.

Constitutionalism thus might be understood as a systematization of thinking about constitutions grounded in the
development since the mid-20th century of supranational normative systems against which constitutions are legitimated.
Communities of nations can rely on that systematization to legitimate, in turn, their actions against non-legitimate
governments under principles of international law, or against which the populace can legitimately rebel. Constitutions are
distinguished from constitutionalism — the latter serving as a means of evaluating the form, substance, and legitimacy of
the former.”.

[88] This does not mean that any doctrine, certainly not an imported foreign doctrine, was or is more supreme than
the FC. What it merely means is that the FC’s drafters had in mind certain basic principles which ought to form the
bedrock of this country and that under Article 159(1), Parliament may amend certain provisions of it without
amending the central tenets of ‘this Constitution’. This is a safeguard as couched in the wide language of the first
limb of Article 4(1) to cast away any attempt to cause the FC to implode on itself by abuse of the legislative process.
Viewed from this lens, our Article 4(1) encapsulates substantially the same principle contained within Article 79 of
the Constitution of Germany.

[89] The effect of the first limb of Article 4(1) in declaring itself supreme is therefore that the Government, all its
branches and its subsidiary bodies and agents are bound by the larger dictates and parameters established not
only by the FC but the circumstances giving rise to its creation.

[90] Purely by way of analogy to elaborate my view, the Supreme Court in Che Omar bin Che Soh v Public
Prosecutor & other appeals [1988] 2 MLJ 55 when construing Article 3(1) of the FC did not read that provision
literally but worked to understand it within the larger backdrop of the constitutional history of this country as
evidence of the intention of its drafters. For clarity, Salleh Abas LP observed as follows at page 56:

“The question here is this: was this the meaning intended by the framers of the Constitution? For this purpose, it is
necessary to trace the history of Islam in this country after the British intervention in the affairs of the Malay States at the
close of the last century.

In our view, it is in this sense of dichotomy that the framers of the Constitution understood the meaning of the word “Islam”
in the context of Article 3. If it had been otherwise, there would have been another provision in the Constitution which would
have the effect that any law contrary to the injunction of Islam will be void. Far from making such provision, Article 162, on
the other hand, purposely preserves the continuity of secular law prior to the Constitution, unless such law is contrary to the
latter…”.
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[91] A vital aspect of this in terms of the design of the FC is its drawing of the framework from the Westminster
style separation of powers with a completely independent Judiciary as opposed to the fused Legislative and
Executive branches. Even Raja Azlan Shah FJ accepted this feature as constituting the FC’s basic concepts. In Loh
Kooi Choon (supra), his Lordship said as follows at page 188:

“The Constitution is not a mere collection of pious platitudes. It is the supreme law of the land embodying 3 basic
concepts: One of them is that the individual has certain fundamental rights upon which not even the power of the State
may encroach. The second is the distribution of sovereign power between the States and the Federation, that the 13 States
shall exercise sovereign power in local matters and the nation in matters affecting the country at large. The third is that no
single man or body shall exercise complete sovereign power, but that it shall be distributed among the Executive,
Legislative and Judicial branches of government, compendiously expressed in modern terms that we are a
government of laws, not of men.”. [Emphasis added]

[92] The second aspect of Article 4(1) is the portion of it which stipulates that all laws passed that are inconsistent
with the FC are void. This, in my view, constitutes constitutional judicial review. Judicial review is usually
understood in its administrative law context. But when used in a constitutional context, it means something wider
(see Huddart Parker & Co Pty Ltd v Moorehead (1908) 8 CLR 330 at page 357; Public Prosecutor v Dato’ Yap
Peng [1987] 2 MLJ 311 (‘Yap Peng’) at page 317. See also Marbury v Madison (1803) 1 Cranch 137 (‘Marbury’);
Ah Thian v Government of Malaysia [1976] 2 MLJ 112 at page 113 and Gerald Fernandez v Attorney-General,
Malaysia [1970] 1 MLJ 262 at page 264).

[93] The FC is not self-executing and this is why the Judiciary is the mechanism and device through which its
supremacy is upheld. If a law is void, it is solely the superior Judiciary that has the power to strike it down as being
so void. The exercise of this power to strike down legislation (even legislation that seeks to make amendments
inimical to the supremacy of the FC) is thus not judicial supremacy but a fundamental aspect of the second limb of
Article 4(1) as entrusted to the Superior Judiciary by the drafters of the FC. This is also recorded in the Reid
Commission Report 1957, as follows:

“161. ...The guarantee afforded by the Constitution is the supremacy of the law and the power and duty of the Courts to
enforce these rights and to annul any attempt to subvert any of them whether by legislative or administrative action or
otherwise. It was suggested to us that there should also be written into the Constitution certain principles or aims of policy
which could not be enforced by the Courts. We do not accept this suggestion. Any guarantee with regard to such matters
would be illusory because it would be unenforceable in law ...”.

[94] The above analysis leads me to the following conclusion. In Malaysia, we have the doctrine of constitutional
supremacy as ingrained in Article 4(1). While the Indian Courts had to create and apply the BSD primarily by
reference to the Preamble of their written constitution, ours (the doctrine of constitutional supremacy) was
bequeathed to us by our founding fathers in Article 4(1). In this regard, it is my respectful view that there is not even
a need for us to adopt what is categorised as an Indian concept of the BSD. To say that our FC does not have any
basic structure or basic concept is incorrect. We have at least three basic concepts as stated by Raja Azlan Shah
FJ in Loh Kooi Choon. As per the advice of this Court in Sivarasa Rasiah v Badan Peguam Malaysia & Anor [2010]
2 MLJ 333 at paragraph 8, as to what exactly the Malaysian doctrine details, our courts should be free to develop it
on the facts of each case.

[95] In other words, we need not look elsewhere to know that basic structure or basic concept, whatever term one
may want to use, is engraved within the very fabric of our Article 4(1). For the purposes of these appeals, it is
sufficient to know that caught within the definition of constitutional supremacy and the essence of the FC is the
notion of separation of powers. Any attempt by federal law to override or undermine this concept is inconsistent with
the FC and thus any federal law to the extent that it seeks to do that is void. This is supported in the words of Raja
Azlan Shah FJ in Loh Kooi Choon above-cited and in the following dictum of Lord Steyn in State of Mauritius v
Khoyratty [2006] 2 WLR 1330 at pages 1337-1338:

“The idea of a democracy involves a number of different concepts. The first is that the people must decide who should
govern them. Secondly, there is the principle that fundamental rights should be protected by an impartial and independent
judiciary. Thirdly, in order to achieve a reconciliation between the inevitable tensions between these ideas, a separation of
powers between the legislature, the executive, and the judiciary is necessary.”.
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[96] With the greatest of respect, I do not therefore think that it is correct to say that ‘judicial power’ is merely a
‘statutory power’ which may be abridged or curtailed by Parliament. The reasoning in this judgment and the proper
construction of Articles 4(1) and 121 in light of our historical records belies that strained method of interpretation.
The power of constitutional review is inherent in the Courts by constitutional design and it does not disappear
simply because it is not provided for by statute and neither can it be lost because a statute says so.

[97] In light of these principles, how is the post-amendment Article 121(1) and its amending authority, A704, to be
construed? In this regard, I respectfully agree with and adopt the judgments of this Court in Semenyih Jaya and
Indira Gandhi. They are the most recent decisions of this Court which have overruled Kok Wah Kuan. By the
doctrine of stare decisis, Semenyih Jaya and Indira Gandhi ought to be followed. Accordingly, Article 121(1) should
be read in the sense that the words ‘the judicial power of the Federation shall be vested in the two High Courts of
co- ordinate jurisdiction and status’ still exist despite their removal from Article 121(1) and in the same vein, the
words inserted by the 1988 amendment to the extent that the ‘the High Courts … shall have such jurisdiction and
powers as may be conferred by or under federal law’ as having no effect whatsoever of diminishing or subordinating
judicial power to Parliament or declaring Parliament supreme in any way. This is because, by the spirit of Article
121(1) read together with the first and second limbs of Article 4(1), judicial power continues to vest in the Superior
Courts as otherwise, a fundamental aspect of the FC that is the judicial arm, is rendered obsolete and the FC is
unable to maintain its status as the supreme law of the Federation.

[98] In simpler terms, because the FC is not self-executing, the duty lies with the Judiciary to give effect to Article
4(1) to ensure that the FC remain the supreme law of the Federation. The Judiciary discharges that duty by
protecting fundamental rights/liberties guaranteed by the FC and by declaring any law passed which is inconsistent
with the FC as void. Now, if the judicial power is confined to what is conferred or given by Parliament and if
Parliament choose to enact a law which disallows the courts to scrutinize acts of constitutional transgressions by
the Executive or the Legislative, the notion that the courts are the last bastion of justice would be rendered illusory
and nugatory. It follows that no law is capable of being upheld if its effect is to diminish the basic and essential
powers of the Judiciary. Otherwise, the Judiciary could never discharge its duty or responsibility of executing Article
4(1). Of course in declaring any law as invalid, regard must also be had to the doctrine of presumption of
constitutionality (see Public Prosecutor v Datuk Harun bin Haji Idris & Ors [1976] 2 MLJ 116 (‘Harun Idris’), at page
117).

[99] In my view the present Article 121(1) merely restates the constitutional position that has always prevailed in
our nation that the jurisdiction and powers of the Courts may be arranged by federal law. By way of example, laws
have been enacted and remain enacted to clarify the jurisdiction of the Courts such as the right and procedure for
appeals in the CJA 1964, the law on limitation in the Limitation Act 1953 and other related statutes, and the scope
of locus standi in Order 53 of the Rules of Court 2012. Parliament can define and elaborate the jurisdiction of the
Courts but it cannot legislate to the extent that it violates the constitutional right of judicial review contained within
the second limb of Article 4(1) that I identified earlier or to the extent that it denudes judicial power which is a part of
separation of powers implicit in the design of the FC which reigns supreme.

[100] The post-amendment Article 121(1), in other words is constitutionally valid if read harmoniously with the
words ‘any law passed’ in Article 4(1) so as to include only constitutionally valid ‘federal law’.

[101] The above does not detract from Parliament’s power to amend the FC under Article 159. The reading down
of the 1988 amendment to Article 121(1) vide Act A704 is but one example to show that Parliament may amend and
has amended the FC without offending the supremacy of it. It can thus be postulated that it was never the post-
amendment Article 121(1) itself that was unconstitutional, rather the effect of the interpretation given to it by this
Court in Kok Wah Kuan and other related cases which substantially gave rise to the litigation against the
constitutional validity of Act A704.

[102] In all this, it must be remembered again that our FC was inspired from other written constitutions such as that
of India’s and the United States’. The Indian Constitution does not have a supremacy clause like our Article 4(1).
But, it has Article 13 that renders all laws made contrary to Part III (equipollent of our Part II) void while providing
judicial remedies in Articles 32 and 226. The American constitution is supreme but does not contain a ‘striking
down’ clause. The Courts had to infer such a power from their supremacy clause (see generally: Marbury (supra)).
In Malaysia, we have combined all aspects of these powers neatly into Article 4(1) and thus, it provides a complete
answer to anyone who argues that the FC can be amended by Parliament in any way simply because the
procedural requirements have been met without regard to the supremacy of it.

[103] In the circumstances, I believe I have addressed the appellants’ argument as to the constitutional validity of
Act A704 and the post- amendment Article 121(1) and the ensuing argument of it having violated the BSD. At the
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risk of repetition, we have our own Article 4(1) and we would benefit from developing that provision rather than to
rely solely on other doctrines and concepts.

[104] Having said that, I do not think that it is ipso facto contrary to our FC, for us to refer to foreign doctrines or
jurisprudence, where relevant. In Malaysia, we have on numerous occasions adopted and do continue to adopt
Indian and other foreign concepts. The following are some of the examples:
(i) The doctrine of prospective overruling which stems from American and Indian jurisprudence (see Yap
Peng (supra), at page 320 affirming the American case of Linkletter v Walker (1965) 381 US 618 which
was cited with approval and applied by the Indian Supreme Court in LC Golak Nath v State of Punjab &
Another [1967] AIR SC 1643).
(ii) The doctrine of presumption of constitutionality is another concept which we have developed from English
and Indian jurisprudence and which has been deemed to apply to both written and unwritten constitutions
(see generally Harun Idris (supra) and Shri Ram Krishna Dalmia & Ors v Shri Justice SR Tendolkar & Ors
[1958] AIR SC 538 cited with approval in Danaharta Urus Sdn Bhd v Kekatong Sdn Bhd [2004] 2 MLJ
257).
(iii) We also have the doctrines of colourable legislation and pith and substance. These concepts were applied
affirmatively by the Supreme Court in Mamat bin Daud & Ors v Government of Malaysia (‘Mamat bin
Daud’) [1988] 1 MLJ 119. A reading of that case also suggests that the doctrine was imported into
Malaysian constitutional and administrative law.
(iv) A further example of an importation of foreign concepts to further understand the breadth of our law is the
judgment of this Court in Alma Nudo (supra) where it referred, among others, to international jurisprudence
to articulate the test on proportionality as guaranteed by Articles 5(1) and 8(1) of the FC.
(v) Another concept is the de facto doctrine which was read into our FC by reference to English and Indian
authorities (see Yong Tshu Khin & Anor v Dahan Cipta Sdn Bhd & Anor and other applications [2021] 1
CLJ 631). Significant reliance was placed in that case on the judgment of the Indian Supreme Court in
Gokaraju Rangaraju v State of Andhra Pradesh (1981) 3 SCC 132).

[105] The concepts referred to by way of example above do not otherwise have any legislative or constitutional
basis for their existence. The Courts have instead referred to them on the basis of common law (English, Indian,
American and so on). Thus, there is nothing antithetical to our courts referring to the Indian formulation of the BSD
in construing the doctrine of constitutional supremacy in Article 4(1) of the FC as it is expressly ordained by the FC
itself.

[106] And, there is no basis for us to reject outright concepts first or further developed in other jurisdictions whether
they be German, Indian, Irish, or American simply because they are foreign. The assessment on which authorities
will apply will always depend on the facts of each case and on the subject-matter under question as well as the
differences in our law and the jurisdiction compared to and having regard to our FC’s own drafting history and
bearing in mind that the said foreign provisions and cases were used as templates by our own founding fathers
when drafting our own FC.

[107] Having addressed the constitutional validity of Act A704 and the post-amendment Article 121(1) as well as
the notion of BSD in Malaysia, I shall now proceed to examine the constitutional validity of section 4 of POCA 1959
against Articles 4(1) and 121(1) of the FC.
Constitutional Validity of Section 4 of POCA 1959

[108] In determining the constitutional validity of section 4 of POCA 1959, I am very much conscious of the fact that
POCA 1959 is a specially enacted law dealing with security matters and preventive measures. That said, it was not
the intention of the framers of the FC that the Courts are disabled from scrutinising specially enacted security or
preventive laws. This is apparent from the Reid Commission Report:

“174. To deal with any further attempt by any substantial body of persons to organise violence against persons or property,
by a majority we recommend that Parliament should be authorised to enact provisions designed for that purpose
notwithstanding that such provisions may involve infringements of fundamental rights or State rights. It must be for
Parliament to determine whether the situation is such that special provisions are required by Parliament but Parliament
should not be entitled to authorise infringements of such a character that they cannot properly be regarded as designed to
deal with the particular situation. It would be open to any person aggrieved by the enactment of a particular
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infringement to maintain that it could not properly be so regarded and to submit the question for decision by the
Court.”. [Emphasis added]

[109] In other words, the fact that POCA 1959 is a legislation authorised under Article 149 FC, does not
necessarily render POCA 1959 and/or any of its provision automatically valid or immune from judicial scrutiny. It
remains a question for the Court to consider constitutional validity when a challenge is made by an aggrieved
person against any law even if that law was passed under Article 149.

[110] Section 4(1) of POCA 1959 provides as follows:

“Procedure before Magistrate

4. (1) Whenever any person is taken before a Magistrate under subsection 3(2) the Magistrate shall —
(a) on production of a statement in writing signed by a police officer not below the rank of Inspector stating that there
are grounds for believing that the name of that person should be entered on the Register, remand the person in
police custody for a period of twenty-one days; or
(b) if no such statement is produced, and there are no other grounds on which the person is lawfully detained, direct
his release.”.

[Emphasis added]

[111] Section 4 of POCA 1959 is couched in imperative language. Where under paragraph (a) a Magistrate is
produced with a signed statement in writing by a police officer of a certain rank, the Magistrate has no choice but to
order the detention for a period of 21 days so long as the procedural requirements of subsection (1)(a) are complied
with.

[112] Next, subsection (2) provides as follows:

“(2) Any person remanded under paragraph (1)(a) shall, unless sooner released, on or before the expiry of the period for
which he is remanded be taken before a Magistrate, who shall —
(a) on production of —

(i) a statement in writing signed by the Public Prosecutor stating that in his opinion sufficient evidence exists to
justify the holding of an inquiry under section 9; and

(ii) a statement in writing signed by a police officer not below the rank of Assistant Superintendent stating that it is
intended to hold an inquiry into the case of that person under section 9, order the person to be remanded in
custody for a period of thirty- eight days; or

(b) if no such statements are produced, and there are no other grounds on which the person is lawfully detained,
direct his release.”.

[Emphasis added]

[113] Again, like subsection (1), subsection (2) mandatorily requires the Magistrate to order continued detention for
a period of 38 days if he or she is met with a statement by the Public Prosecutor and the police subject to certain
other procedural requirements of paragraph (a). In both cases, whether under subsections 4(1) or 4(2), the
Magistrate is not otherwise entitled to apply his or her judicial mind nor exercise independent discretion to
determine whether the remand application should be granted. The Magistrate is also denied the discretion to decide
the length and measure of the detention. He or she is to mechanically allow the first detention for 21 days and the
second for 38 days on the express dictation of the police and Public Prosecutor respectively.

[114] Learned SFC, in an attempt to justify such imperative language, argued that the presence of the Magistrate
serves as a check and balance and this accordingly, is concomitant with the doctrine of separation of powers.
Learned SFC further argued that the Magistrate acts in an Executive capacity and not an extension of the judicial
arm. To bolster his argument, learned SFC relied on the judgment of this Court in Jaideep Singh v ASP Mahathir
Abdullah Sapawi & Ors [2017] 10 CLJ 145 (‘Jaideep’) where Raus Sharif, PCA (as he then was) said:
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“[17] … In the present case, as stated earlier, the remand order was made by the Magistrate pursuant to s. 4(1)(a) and
4(2)(ii) of the POCA. In doing so, the Magistrate was not exercising his judicial power but rather a power of a detaining
authority duly given under the POCA. The POCA is an Act which provides for preventive detention.”.

[115] With the greatest of respect, the two arguments, namely that the Magistrate serves as a check and balance
and that the Magistrate acts in an Executive capacity materially contradict one another. It is either the Magistrate is
or is not a member of the Executive and as such, either does or does not exercise judicial power. The argument of
learned SFC that the Magistrate acts in the Executive capacity and serves as a check and balance with respect, is
also flawed. The notion of separation of powers refers to the powers of the different branches of the Government
and check and balance by one branch over the other. It is not the notion that the same branch of Government acts
as a check and balance over itself.

[116] In my view, the correct position in law is that the Magistrate exercises judicial power. This is because the
source of the Magistrate’s power is derived from Article 121(1) of the FC in the words: ‘and such inferior courts as
may be provided by federal law ... and shall have such jurisdiction and powers as may be conferred by or under
federal law.’ In this regard, Jaideep is not the authority for the proposition that the Magistrate does not exercise
judicial power but detaining power of the Executive. The constitutional validity of section 4 of POCA was not raised
and thus was not an issue in Jaideep. Hence, the decision that the Magistrate does not exercise judicial power is
not the ratio decidendi of Jaideep.

[117] In Jaideep, the appellants were detained for 21 days pursuant to remand orders separately issued by the
Magistrate under section 4(1)(a) of POCA 1959. The remand orders were then extended for an additional 38 days.
The appellants each filed an application for a writ of habeas corpus at the High Court. At the hearing of the
applications, the SFC raised a preliminary objection that the applications for habeas corpus adopted by the
appellants were not the proper mode of proceeding to mount a challenge on their alleged unlawful detention. The
SFC contended that the appellants should have proceeded by way of judicial review. The High Court upheld the
objection and dismissed the applications for writ of habeas corpus. On appeal, this Court reversed the decision of
the High Court. This Court held that the proper mode for the appellants to seek redress should be by habeas
corpus. That is the ratio decidendi of Jaideep.

[118] Jaideep aside, at this juncture, it bears the question: can ‘federal law’ therefore provide that the Magistrate
shall have absolutely no discretion in deciding whether remand should be ordered or not, and have absolutely no
discretion on the length of it within the radius prescribed by Parliament?

[119] This brings into focus the operation of the doctrine of constitutional supremacy housed in Article 4(1) of the
FC. The second limb of the Article 4(1) is not in issue because this case does not concern the abrogation of judicial
power on the part of the Superior Courts to exercise their constitutional power of judicial review over Legislative and
by extension, Executive acts. The case does however attract the application of the first limb.

[120] As highlighted earlier, the FC is supreme. This includes all enumerated provisions and, as recognised by
Raja Azlan Shah FCJ in Loh Kooi Choon (supra), implicit concepts such as separation of powers ingrained in the
historical design of the FC. As found earlier, judicial power remains vested in the Courts under Article 4(1) and the
post-amendment Article 121(1) of the FC.

[121] Remand is a judicial order and a Magistrate making such an order performs a judicial act (see generally
Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop [2018] 5 MLJ 141). The fact that it was ordered under a
preventive law, in my view does not change the judicial character of the remand order. At this juncture, I wish to
record my observation that neither the now repealed Internal Security Act 1960, the Dangerous Drugs (Special
Preventive Measures) Act 1985 nor the Security Offences (Special Measures) Act 2012 make any provision on
remand by a Magistrate. These preventive laws strictly provide for executive acts to be exercised by the Minister or
other enforcement body. POCA 1959 however, provides for remand by a Magistrate and under section 4 of POCA
1959, the Magistrate is clearly bound to act upon the dictates of the police and the Public Prosecutor by use of the
imperative word ‘shall’. There are two cases to illustrate that this form of ‘law’ seeking to direct the judiciary or a
judicial body to do or omit from doing something upon the dictates of an Executive body without any choice, is a
violation of separation of powers.

[122] The first is the decision of the Supreme Court in Yap Peng (supra). In that case, section 418A of the Criminal
Procedure Code which vests power in the Public Prosecutor to decide when and to which Court a case ought to be
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transferred, was held to be unconstitutional. In this regard, Abdoolcader SCJ most pertinently observed as follows
at pages 319-320:

“I cannot but conclude in the circumstances that there is in fact by the exercise of the power conferred by section 418A on
the Public Prosecutor an incursion into the judicial power of the Federation and that any other view would ex necessitate rei
result in relegating the provisions of article 121(1) vesting the judicial power of the Federation in the curial entities specified
to no more than a teasing illusion, like a munificent bequest in a pauper’s will. The power of the Public Prosecutor under
section 418A is uncanalized, unconfined and vagrant.

I would accordingly declare that section 418A is in violation of the provisions of article 121(1) and therefore unconstitutional
and void under the provisions of article 4(1).”.

[123] The other case which is directly on point is that of Semenyih Jaya. It would be recalled that in that case,
section 40D of the Land Acquisition Act 1960 mandatorily bound the High Court Judge to the opinion or decision of
the lay assessors. Zainun Ali FCJ had this to say:

“[100] In view of s 40D of the Act, a conundrum presents itself in that the discharge of the judicial power and function to
determine adequate compensation is now assigned to assessors and not the judge. It is pertinent to note that the act of
determining the amount of compensation payable arising out of land acquisition cases involves judicial assessments, for
example, whether a particular head of claim is allowed, evidential issues, whether a response to a valuer’s report is
permitted etc. Hence the power to award compensation in land reference proceedings is a judicial power that should rightly
be exercised by a judge and no other.”.

[124] The ratio decidendi of both cases is that binding judicial bodies to the opinion or whims of non-judicial bodies
or more so Executive bodies is wholly inconsistent with the scheme of separation of powers established intrinsically
by the FC. The only known exception to this thus far is the judgment of this Court in JRI Resources Sdn Bhd v
Kuwait Finance House (M) (Bhd) (President of Association of Islamic Banking Institutions Malaysia & Anor,
Interveners) [2019] 3 MLJ 561 (‘JRI Resources’). In that case, the binding authority of the opinion of the Syariah
Advisory Council was not deemed to violate judicial power as the secular Superior Courts were in the first place
deemed not to have any power to decide on substantive Syariah or Syariah-related issues. That case therefore
remains the only known exception.

[125] These appeals, unlike JRI Resources do not fall within that exception. Here, being an inferior Court, the
Magistrate exercises judicial power to consider and order remand and detention.

[126] Based on the foregoing analysis, section 4 of POCA 1959 in particular subsections (1) and (2) cannot be
regarded as valid ‘federal law’ within the meaning of Article 121(1) read in light of Article 4(1) respectively of the FC.
The first limb of Article 4(1) declares that the FC is supreme. One of the intrinsic features of the FC is the judicial
power of the Federation being vested in the Superior Courts with constitutional sanction afforded to the subordinate
courts to exercise some degree of judicial power. By binding the Magistrate to the dictates of the Executive in the
police and the Public Prosecutor, the law passed by Parliament seeks to override this particular constitutional
feature. As such, subsections (1) and (2) of section (4) of POCA 1959 are inconsistent with the Constitution and are
void. The presumption of constitutionality has been overcome rendering the said provisions liable to be struck
down.

[127] In Mamat bin Daud, the Supreme Court was faced with the question on how to deal with a section where
certain parts of it are unconstitutional while the other parts of it remain ex facie valid. The Court held that if the
seemingly constitutionally valid provisions are inseverable from the invalid ones then they are also liable to be
struck down together with the offending provisions.

[128] In the instant appeals, the rest of section 4 of POCA 1959 is so inextricably tied to subsections (1) and (2)
that they cannot exist without the offending parts of section 4. The net effect of this finding is that the whole of
section 4 of POCA 1959 stands unconstitutional and void.

[129] Since the First Remand, which formed the initial detention was done on the basis of an unconstitutional ‘law’,
there was accordingly no basis in law to detain the appellants. This effectively means that their life and personal
liberty was not deprived in accordance with law under Article 5(1) of the FC. Their detention is therefore unlawful
and habeas corpus must issue as of right.
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Article 149 of the FC and Item 5 of the Schedule to POCA 1959

[130] For completeness, I also find it necessary to address the appellants’ arguments on Article 149 of the FC as it
is also an issue of constitutional importance. To recapitulate, the appellants were detained under the CGHA 1953
read into POCA 1959 vide item 5 of its First Schedule. The appellants’ argument was that the fact of their detention
does not conform to the express requirements of Article 149(1)(a). In response, learned SFC contended that this
Court ought not to restrict itself to merely Article 149(1)(a) as POCA 1959 was passed generally under Article 149.

[131] Article 149 is contained within Part XI of the FC which relates to the special powers of Parliament against
subversion, organized violence, and acts and crimes prejudicial to the public and emergency powers. Under Article
149(1), any law passed in accordance with it is valid notwithstanding the provisions of Articles 5, 9, 10 or 13 of the
FC and such laws may also be passed beyond the scope of the legislative power of Parliament. These are very
broad and overarching powers entrusted to Parliament by the FC.

[132] In this regard, paragraphs (a) to (f) of Article 149(1) set out recitals which Parliament is required to include in
the offending statute to bring that statute within the purview of Article 149 to insulate it from the scrutiny of Articles
5, 9, 10 and 13.

[133] In my view, the inclusion of the Article 149 recitals in anti-subversion and other such laws serves as a
constitutional safeguard ensuring that any such law is properly enacted for the purposes envisaged by that Article.

[134] It is a settled principle of constitutional construction that constitutional provisions and laws which safeguard
fundamental rights must be read generously and in a prismatic fashion while provisions that limit or derogate from
those rights must be read restrictively (see Lee Kwan Woh v Public Prosecutor [2009] 5 MLJ 301, at paragraph
13).

[135] The most recent authority on the importance of Article 149 is the judgment in Selva Vinayagam Sures v
Timbalan Menteri Dalam Negeri, Malaysia & Ors [2021] 2 CLJ 29 (‘Selva’), where this Court through Vernon Ong
FCJ most critically observed as follows:

“[33] The purpose of art. 149 is to enable Parliament, once any one or more of the six categories of action enumerated
under paras. (a) to (f) of cl. (1) has occurred, to make laws providing not only for its suppression but also for preventing its
recurrence. Where such an Act of Parliament confers on the executive to act in a manner inconsistent with arts. 5, 9, 10 or
13, the action must be taken bona fide for the purpose of stopping or preventing action of the kind envisaged under the Act
(see Teh Cheng Poh v. PP [1978] 1 LNS 202; [1979] 1 MLJ 50, 54, (PC)).

[34] Where power is vested in a statutory authority to deprive the liberty of a person on its subjective satisfaction with
reference to the specified matters, and if that satisfaction is stated to be based on a number of grounds or for a variety of
reasons all taken together, and if some out of them are found to be non- existent or irrelevant, the very exercise of that
power is bad. Therefore, strict compliance with the letter of the rule of law is the essence of the matter.”. [Emphasis
added].

[136] The point in that case was that section 6(1) of the Dangerous Drugs (Special Preventive Measures) Act 1985
was employed to preventively detain the detenu. This Court found that the detention was bad because the appellant
acted alone and that was in violation of Article 149(1)(a) and (f), which allowed Parliament to make the relevant law
on account of action which is prejudicial to public order in Malaysia has been taken and further similar action is
being threatened by ‘a substantial body of persons’ both inside and outside Malaysia. In construing the provision
narrowly, this Court held that the detenu (acting alone) was not a ‘substantial body of persons’ and thus was not
caught by the purpose for which the relevant statute was enacted under Article 149 (see also paragraphs 50-51 of
Selva).

[137] This takes me to the recital in POCA 1959. It reads as follows:

“WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and
outside Malaysia to cause, or to cause a substantial number of citizens to fear, organized violence against persons or
property;

AND WHEREAS Parliament considers it necessary to stop such action;

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NOW, THEREFORE, pursuant to Article 149 of the Federal Constitution IT IS ENACTED by the Parliament of Malaysia as
follows…”

[138] The above recital is drawn from Article 149(1)(a) which provides:

“149. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons,
whether inside or outside the Federation —

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property…”.

[139] In light of the foregoing, it is untenable to conclude that Parliament intended to refer to all the recitals
contained in Article 149(1) when the recital in POCA 1959 in fact refers only to paragraph (a). In other words, since
Parliament enacted POCA 1959 under paragraph (a) of Article 149(1), POCA 1959 has to be construed in
accordance with that paragraph. To accept learned SFC’s argument in that respect would be to give POCA 1959 a
broader interpretation against the weight of settled, recent and high authorities which suggest that the most
restrictive approach ought to be taken on a provision which permits derogation from fundamental liberties.

[140] Quite apart from their argument that Article 149(1) as a whole is sufficient to sustain Item 5 of the First
Schedule to POCA 1959 without regard to the specific selection of only paragraph (a) of Article 149(1), the
respondents also suggested that the words ‘organized violence’ in the recital to POCA 1959 do contemplate
unlawful gambling and gaming offences. In all fairness to the respondents, there appears to be some support for
their contention in the legislative history of POCA 1959 as it presently stands.

[141] The relevant Minister in stating the Government’s intention for moving the Bill to amend POCA 1959 in its
present form stated as follows (see the Dewan Rakyat Hansard (1.10.2013), at pages 44-45):

“Peningkatan kes-kes jenayah berat dan jenayah terancang ini sedikit sebanyak telah meningkatkan kebimbangan rakyat
akan tahap keselamatan mereka berikutan keseriusan kes-kes jenayah yang berlaku seperti mana yang dilaporkan di
dalam media massa iaitu:
(i) penggunaan senjata api yang berleluasa;

(ii) kejadian pembunuhan menggunakan senjata api;

(iii) pergaduhan antara kumpulan ahli-ahli kongsi gelap sesama mereka untuk merebut kawasan;

(iv) perebutan kawasan pengedaran dadah;

(v) pengutipan wang perlindungan;

(vi) sindiket pelacuran; dan

(vii) sindiket perjudian.

Kerajaan amat peka akan kebimbangan yang dirasai oleh rakyat, dan mendengar rintihan mereka agar Kerajaan
mengambil tindakan segera bagi membanteras aktiviti-aktiviti jenayah berat dan jenayah terancang.

Tuan Yang di-Pertua, tanpa undang-undang yang efektif kegiatan jenayah berat dan jenayah terancang tidak dapat
dibendung. Tidak dapat dibendung dengan berkesan dan seterusnya akan menjadi ancaman kepada keselamatan negara.
Dari aspek sosial selain peningkatan kadar jenayah, golongan pelajar juga akan menjadi sasaran oleh ahli-ahli kongsi
gelap sedia ada untuk merekrut ahli-ahli baru bagi menyertai kumpulan mereka.”. [Emphasis added]

[142] In short, the Minister suggested that gambling syndicate is one of the reasons why POCA 1959 was
eventually amended. In this regard, I recall the decision of House of Lords in Black-Clawson International Ltd v
Papierwerke Waldhof-Aschaffenburg AG [1975] 1 ALL ER 810. Most pertinently, Lord Reid opining for the majority
observed as follows at pages 814-815:

“Construction of the provisions of an Act is for the court and for no one else. This may seem technical but it is good sense.
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Occasionally we can find clear evidence of what was intended, more often any such evidence, if there is any, is vague and
uncertain. If we are to take into account Parliament’s intention the first thing we must do is to reverse our present practice
with regard to consulting Hansard. I have more than once drawn attention to the practical difficulties that would involve but
the difficulty goes deeper. The questions which give rise to debate are rarely those which later have to be decided by the
courts. One might take the views of the promoters of the Bill as an indication of the intention of Parliament but any view the
promoters may have had about questions which later come before the court will not often appear in Hansard and often
those questions have never occurred to the promoters. At best we might get material from which a more or less dubious
inference might be drawn as to what the promoters intended or would have intended if they had thought about the matter,
and I would think generally be dangerous to attach weight to what some members of either House may have said. The
difficulties in assessing any reference there might have been in Parliament to the question before the court are such that in
my view our best course is to adhere to present practice.

If we are to refrain from considering expressions of intention in Parliament it appears to me that a fortiori we should
disregard expressions of intention by committees or royal commissions which reported before the Bill was introduced. I may
add that we did in fact examine the whole of this report – it would have been difficult to avoid that – but I am left in some
doubt as to how the committee would have answered some of the questions which we have now to answer, because I do
not think that they were ever considered by the committee.”.

[143] Perhaps more compelling is the dictum of Lord Wilberforce, who supported the speech of Lord Reid. At page
828, Lord Wilberforce said:

“To be concrete, in a case where a committee prepared a draft bill and accompanies that by a clause commentary, it ought
not to be permissible, even if the proposed bill is enacted without variation, to take the meaning of the bill from the
commentary. There are, to my mind, two kinds of reason for this. The first is the practical one, that if this process were
allowed the courts would merely have to interpret, as in argument we were invited to interpret, two documents instead of
one – the bill and the commentary on it, in particular Annex V, para 13. The second is one of constitutional principle.
Legislation in England is passed by Parliament, and put in the form of written words. The legislation is given legal
effect on subjects by virtue of judicial decision, and it is the function of the courts to say what the application of
the words used to particular cases or individuals is to be. This power which has been devolved on the judges from
the earliest times is an essential part of the constitutional process by which subjects are brought under the rule of
law – as distinct from the rule of King or the rule of Parliament; and it would be a degradation of that process if the
courts were to be merely a reflecting mirror of what some other interpretation agency might say.”. [Emphasis added]

[144] The above dicta of Lords Reid and Wilberforce were made in a jurisdiction where Parliament is supreme.
Here, where the FC is supreme, the said dicta must be interpreted with even greater seriousness given the clear
and unmingling demarcation between judicial and legislative powers. Accordingly in this country, the Hansard and
the Parliamentary speeches it contains merely serve as an interpretive aid. It is relevant insofar as it helps the Court
determine any supposed mischief Parliament sought to remedy with a view to resolve, for example, ambiguous
interpretation. The Hansard is not otherwise a definitive corpus on what the law actually says or means or for that
matter, what it ought to say or mean.

[145] Statutory construction, and more so constitutional construction is exclusively a matter for the Judiciary. While
the Honourable Minister is entitled to express his view that ‘organized violence’ includes gambling and gaming
offences, the question of construction of those words and whether they can constitutionally include such kinds of
offences remain very much a judicial question.

[146] Thus, the only question that remains is whether the CGHA 1953 read into POCA 1959 vide Item 5 of its First
Schedule is sufficiently within the scope of the recital stipulated by Article 149(1)(a) of the FC, as judicially
determined. At face value, it would appear that there is no logical or legal nexus between gaming offences and
organized violence. Be that as it may, the appellants cited two judgments of the Indian Courts for the point that
gaming and other lesser offences do not constitute organized violence.

[147] The first is the judgment of the Indian Court in Ajay Gupta v State of Maharashtra (2014) 3 Bom CR (Cri) 96,
where the Court observed that two crimes relating to the commission of thefts were not even remotely close to
being recognised as movements or actions which would imminently cause alarm or danger or harm.

[148] In another case, Jalim Chand Saraogi v District Magistrate (1972) CriLJ 1599, the Indian Court observed at
pages 1601-1602 that the grounds on which the detenu was detained i.e. activities confined to his organisation of
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gambling could not be viewed as one which causes public disorder. Neither can it be considered as anything
‘subversive, violent, dangerously mischievous or general fear-foreboding’.

[149] With respect, I concur with the above reasoning. If two crimes relating to the commission of thefts were not
even remotely close to being recognised as movements or actions which could imminently cause alarm or danger
or harm, by extension, gaming offences can hardly be considered anything close to organized violence, though it
may perhaps be classified as organized crime. Organized crime is not necessarily equivalent to organized violence.
For instance, ‘white-collar crime’ committed by businesses and government professionals is a non-violent crime.
Simply put, by no stretch of the imagination can gaming offences be fathomed as being contemplated by Article
149(1)(a) of the FC as something which may cause ‘a substantial number of citizens to fear, organized violence
against persons or property’. More importantly, apart from stating that ‘Tangkapan terhadap Pemohon di bawah
Akta tersebut telah dibuat kerana ada sebab untuk mempercayai bahawa ada alasan-alasan yang mewajarkan
siasatan di bawah Akta tersebut dilaksanakan ke atas Pemohon kerana penglibatan Pemohon dalam pengelolaan
dan penggalakan judi haram sebagaimana yang dinyatakan di Perenggan 5 Bahagian 1, Jadual Pertama Akta
tersebut’, the respondents made no mention of ‘organized violence’ in their affidavit.

[150] Applying Selva, the consequence is that Item 5 of the First Schedule to POCA 1959 to the extent that it
includes gaming offences such as the ones under the CGHA 1953 is ultra vires Article 149(1)(a) of the FC which is
the recital under which POCA 1959 was enacted, although and I say this without the benefit of argument, it may
perhaps be valid had POCA 1959 been enacted under recital (f) of Article 149(1) as well, which relates to action
prejudicial to public order. The insertion of Item 5 of the First Schedule was effectuated by the Minister pursuant to
section 22 of POCA 1959 in 2014. As this insertion is ultra vires Article 149(1)(a) of the FC, it is legally invalid.

[151] For the above reason, the appellants’ arrests and detentions under section 4 of POCA 1959 were unlawful. It
follows on this ground as well that the appellants are entitled ex debito justitiae to a writ of habeas corpus.
Mala Fide

[152] The mala fide issue as submitted by the appellants essentially concerns issue of fact. As my findings of law
on the constitutional invalidity of section 4 of POCA 1959 and the legal untenability of the facts delivered under the
invalid Item 5 of the First Schedule have sufficiently dealt with the legality of the detention of the appellants, I find it
unnecessary to deal with this point as canvassed.
Conclusion

[153] In light of Article 5(2) of the FC and the decision of this Court in Ezam (supra), the present appeals are not
academic. In terms of the merits, the legality of the detention of the appellants rests on the constitutional validity of
section 4 of POCA 1959. I have found it to be unconstitutional and void under Article 4(1). There is therefore no
basis in law for the appellants’ detention. As the appellants’ right to personal liberty under Article 5(1) was not
deprived in accordance with law, their detentions are unlawful.

[154] Further, the statement of facts delivered to the Magistrate, on the alleged offences for which the appellants
were arrested i.e. gaming offences under the CGHA 1953, was inconsistent with the recital in POCA 1959 drawn
from Article 149(1)(a). This renders the grounds for the detention invalid and their resulting detention unlawful.

[155] In the circumstances, the respondents have not met their legal burden to justify the lawfulness of the
appellants’ detention. The appeals are allowed, the order of the High Court is set aside and the appellants’
application for a writ of habeas corpus is allowed. It is hereby directed that each of the appellants be released from
custody forthwith.

[156] My learned sister Justice Rhodzariah Bujang has read this judgment in draft and has agreed with it.

End of Document