1.

Heading:

CASE NAME: ZAIDI KANAPIAH V. ASP KHAIRUL FAIROZ RODZUAN & ORS AND
OTHER APPEALS
COURT: FEDERAL COURT, PUTRAJAYA
YEAR OF THE DECISION: 2021

2. Facts & Court Decision:

The appeals concern the arrest and detention of three individuals. The appellants
consist of Zaidi bin Kanapiah, Mohd Hairy bin Mohammad and Muhamad Amin Nur
Rashid bin Mohamed Puad. The appellants were first detained by the Malaysian
Anti-Corruption Commission (‘MACC’) in a specific investigation on corruption within the
police force. After they were released on MACC bail on 13 October 2020, the appellants
were arrested by the police pursuant to Section 3(1) of Prevention Of Crime Act 1959
(“POCA”). The basis for the detention of the appellants under POCA 1959 was
purportedly pursuant to the Common Gaming Houses Act 1953 (‘CGHA 1953’). On 14
October 2020, the appellants were detained for a period of 21 days, from 14 October
2020 to 3 November 2020, pursuant to Section 4(1) of POCA 1959. On 30 October
2020, the police obtained a further remand order of 38 days, under Section 4(2) of the
POCA, extending the detention period until 6 December 2020. Later, in accordance with
an order issued under Section 19A(1) of the POCA, the appellants were further
remanded for a period of two years from 25 November 2020. The appellant, Zaidi bin
Kanapiah is detained in Pusat Pemulihan Khas (PPK) Pokok Sena Kedah, Mohd Hairy
bin Mohammad is detained in PPK Bentong, Pahang and Muhamad Amin Nur Rashid
bin Mohamed Puad is detained in PPK Simpang Renggam, Kluang, Johor.

As a result, the appellants applied for a writ of habeas corpus, at the High Court,
arguing that the detention violated the rights of the appellants as the detention made by
the police was made in bad faith, the appellants were never notified on the ground of
their arrest by the police which violated Article 5(5) of the Federal Constitution and the
respondents failed to show that any grounds exist justifying the detention of the
appellants under Section 3(1) POCA. Based on these three grounds, the counsel for the
appellants contended that the applications for habeas corpus should be allowed.
However, the High Court rejected the appellants’ application on the ground that the
 appellants failed to prove any evidence of bad faith in the detention by the police as it
was only their allegation that they had been detained by the police to shut them up from
revealing information to the MACC and the detention was lawful as the respondents had
given the ground of detentions in the affidavits, that is, the appellants are suspected to
be persons concerned in the organisation and promotion of unlawful gaming which
cause the appellants to make the present appeal as they were dissatisfied with the High
Court’s decision.

In the appeal, the appellants’ counsel raised several arguments to support their
appeals that the detention of the appellants is illegal. The appellants’ counsel argued
that Section 4 of POCA 1959 is unconstitutional. Next, the preliminary objection by the
respondents that the application is academic is invalid in accordance with Article 5(2) of
the Federal Constitution. Furthermore, the detention made by the police was made in
bad faith. Moreover, the Minister abused the power entrusted to him by Section 22 of
POCA by including the Common Gaming Houses Act 1953 (CGHA) as item 5 of the First
Schedule which is ultra vires Article 149(1) of the Federal Constitution. Last but not least,
the allegations made against the appellants do not come within the scope of POCA
because it is not a crime of “organised violence”. Based on these arguments, the
appellants’ counsel argues that they ought to be granted, as of right, a writ of habeas
corpus ordering the release of the appellants. The Federal Court in this appeal allowed
the appeal, hence the order made by the High Court was set aside and the writ of
habeas corpus ordering the release of the appellants was granted.

3. Constitutional Issues:
1) Whether Section 4 of POCA is unconstitutional as it violates the doctrine of
separation of powers by requiring the judicial arm to act upon the dictates of the
Executive.
2) Whether the power exercised by the Minister’s 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.

5. Legal Critique

This particular case is significant to constitutional law and jurisprudence in several ways. Firstly,
the significance of the case is that it wants to uphold the judicial power as the agent of
separation of powers. The separation of power existed to prevent abuse of power between the
branches which is in accordance with the belief of Montesquieu, a French writer and
philosopher who believes that if all three powers namely, the executive, the legislative and the
judiciary were held by the same person, then there would be a dictatorship and arbitrary rule
would prevail. In order to overcome this problem, there is a system of check and balance.
Checks and balances, a government principle under which separate branches are empowered
to prevent other branches from taking action and are induced to share power. In this present
case, it concerns the separation of powers specifically between the judiciary and the executive
branches of government. In this instant case, the importance of the doctrine of separation of
powers specifically between the judiciary and the executive and between the judiciary and the
legislative branches of government is emphasised by the court. The judiciary's independence
from the executive and legislative branches is important to protect individual rights and liberties
which is guaranteed by Part II of the Federal Constitution and to prevent abuses of power by the
legislative and the executive. The decision of the court upholds that the judiciary is independent
and is equal with the other branch of government as well as it has the power and responsibility
to interpret and apply the law accordingly. In Malaysia, the judicial power is governed by Article
121 of the Federal Constitution.

In this case, it was argued by the learned counsel of the appellant that the amendment
of Article 121 of the Federal Constitution is a nullity because of the removal of the words “the
judicial power of the Federation shall be vested in two High Courts” effectually reduces the
Judiciary from being a separate and independent organ to be a mere subordinate or subjugate
of Parliament. However, the Federal Court in this case disagreed and rejected the argument
made by the learned counsel of the appellant. The Federal Court states that the absence of the
words “judicial powers” under article 121 Federal Court does not in any manner or form
emasculate the powers of the courts. It was also held that the amendment of Article 121 of the
Federal Constitution has no effect in diminishing or subordinating the judicial power to
Parliament or declaring Parliament supreme in any way. In the judgement made by Tengku
Maimun Tuan Mat FCJ, she stated that Article 121(1) of the Federal Constitution should be read
in the sense that the words “the judicial power of the Federation shall be vested in the two High
Courts of coordinate jurisdiction and status” still exist despite their removal from Article 121(1) of
the Federal Constitution by the 1988 amendment and in the same vein, the words inserted in
the 1988 amendment that is “the High Courts … shall have such jurisdiction and powers as may
be conferred by or under federal law” has no effect in diminishing or subordinating judicial power
to Parliament or declaring Parliament supreme in any way. From this judgement alone, it is clear
that the argument made by the learned counsel of the appellants stating that the amendment of
Article 121 of the Federal Constitution is a nullity as it reduces the Judiciary from being a
separate and independent organ to be a mere subordinate or subjugate of Parliament is false
and invalid.

In this present case also, the majority of judges in the case agreed that Section 4 of
POCA 1959 is valid and constitutional on the ground that it does not violate any of the
provisions in the Federal Constitution. Plus, it also does not violate the doctrine of separation of
powers by requiring the Magistrate to act on the dictates of the Executive. For these reasons,
the majority of judges in the case agreed that Section 4 of POCA 1959 is valid and
constitutional, hence it should not be struck down. However, Tengku Maimun Tuan Mat FCJ in
her judgement disagreed with the decision of the majority of judges declaring Section 4 of
POCA 1959 as valid and constitutional. Instead, she found Section 4 of POCA 1959 specifically
Section 4(1) and 4(2) of POCA 1959 to be void and unconstitutional as it is inconsistent with the
Federal Constitution. Tengku Maimun Tuan Mat FCJ in her judgement states that Section 4 of
POCA 1959 specifically Section 4(1) and 4(2) of POCA 1959 cannot be regarded as valid
“federal law” within the meaning of Article 121(1) of the Federal Constitution read in light of
Article 4(1) of the Federal Constitution. She states that the first limb of Article 4(1) of the Federal
Constitution provides that the Federal Constitution is the supreme law of the land. In her
judgement, she further explained that one of the intrinsic features of the Federal Constitution is
that the judicial power of the Federation is vested in the superior courts with constitutional
sanction provided to the subordinate courts to exercise some degree of judicial power and that
by binding the Magistrate to the dictates of the Executive in the police and the Public
Prosecutor, the law passed by Parliament attempts to override this particular feature of the
Federal Constitution. For this reason, Tengku Maimun Tuan Mat FCJ found that Section 4(1)
and 4(2) of POCA 1959 to be void and unconstitutional, hence the said provisions ought to be
struck down and the writ of habeas corpus ordering the release of the appellants must be
granted as the detention is unlawful because it was done on the basis of an unconstitutional law.

In my humble opinion, I have to disagree with the decision made by the majority of
judges declaring Section 4 of POCA 1959 as valid and constitutional and agree with the
judgement of Tengku Maimun Tuan Mat FCJ that stated that Section 4(1) and 4(2) of POCA
1959 to be void and unconstitutional. In my opinion, in Malaysia, the court should have the
power and discretion to independently decide in a case. In this case, I believe that Section 4(1)
and Section 4(2) of POCA 1959 limits the power and discretion of the court to independently
decide in a case. For evidence, Section 4(1) of POCA 1959 provides that on production of a
statement in writing signed by a police officer stating that there are grounds for believing that the
name of that person should be entered on the Register, remand order for a period of 21 days
shall be granted. Plus, section 4(2) of POCA 1959 mandatorily requires the Magistrate to order
extension of the 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). This proves that the judges are unable to apply their judicial mind nor exercise independent
discretion to decide the length and measure of the detention. This prohibits justice to be
exercised as the Magistrate is mandatorily required to grant the remand order according to the
period set by Section 4(1) and Section 4(2) of POCA 1959 even though the judge thinks that the
length of the detention is unnecessarily long for the process of the investigation. Hence, for this
reason, I strongly believe that Section 4(1) and 4(2) of POCA 1959 to be void and
unconstitutional and ought to be struck down as the existence of the provisions will prohibit
justice to be exercised accordingly.

Secondly, the rule of law provided in this case is right to habeas corpus. Right to habeas
corpus is guaranteed under Article 5(2) of the Federal Constitution. According to Article 5(2) of
the Federal Constitution, it is provided that 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. In simpler terms, when an application for writ of habeas corpus is made by the
detained person, it is required for the detaining authority to bring the person in their custody
before the court together with the grounds or reasons for the detention (Ashgar Ali Ali Mohamed
& Muhamad Hassan Ahmad, 2022, 133). The detaining authority also has the responsibility to
explain the grounds or reasons for the detention to the court (Ashgar Ali Ali Mohamed &
Muhamad Hassan Ahmad, 2022, 135). If the court finds that the grounds or reasons of the
detention are not in accordance with law or unlawful, the court has the duty to order the release
of the detained person (Ashgar Ali Ali Mohamed & Muhamad Hassan Ahmad, 2022, 139).

In this present appeal case, the appellants applied for the writ of habeas corpus at the
High Court, however, their applications were dismissed by the High Court, hence they make this
appeal. In this case, the court granted the writ of habeas corpus applied by the appellants with
the majority of judges agreed that the writ of habeas corpus must be granted on the ground that
the Magistrate had failed to exercise his discretion judicially in order to ensure that all the legal
procedural and constitutional safeguards are strictly complied with before issuing the remand
order as required under Section 4 of POCA 1959 while the other two judges with dissenting
opinion agreed that the writ of habeas corpus must be granted on the ground that Section 4 of
POCA 1959 is void. In my humble opinion, I believe that the right of habeas corpus is very
important to the people as it acts as a protection against unlawful detention. As mentioned in
Chua Kian Voon v Menteri Dalam Negeri Malaysia & Ors (2020) by Zawawi Salleh FCJ, the right
of habeas corpus is a fundamental instrument for safeguarding individuals against arbitrary and
unlawful state action. With the statement made by Zawawi Salleh FCJ, I opines that with the
existence of Article 5(2) of the Federal Constitution which guarantees the right of habeas
corpus, it allows people to be protected from being unlawfully detained which is in accordance
with the purpose of law which is to ensure the rights of the people against abuses by other
people, organisations, or the government itself.

Ashgar Ali Ali Mohamed & Muhamad Hassan Ahmad. (2022). Constitutional Law in Malaysia.

LexisNexis Malaysia Sdn Bhd. 2022

As for the two dissenting judges, for the first issue which is whether Section 4 of the
Prevention of Crime Act (POCA) 1959 violates the principle of separation of powers by
allowing the Executive to direct the Judiciary, both Tengku Maimun Tuan Mat CJ and
Rhodzariah Bujang FCJ agreed that Section 4 of POCA 1959 to be void and unconstitutional,
hence the detention of the appellants is unlawful and that the writ of habeas corpus shall be
granted. Tengku Maimun Tuan Mat FCJ in her judgement found that Section 4 of POCA 1959
specifically Section 4(1) and 4(2) of POCA 1959 to be void and unconstitutional as it is
inconsistent with the Federal Constitution. Tengku Maimun Tuan Mat FCJ in her judgement
states that Section 4 of POCA 1959 specifically Section 4(1) and 4(2) of POCA 1959 cannot
be regarded as valid “federal law” within the meaning of Article 121(1) of the Federal
Constitution read in light of Article 4(1) of the Federal Constitution. Furthermore, she states
that the first limb of Article 4(1) of the Federal Constitution provides that the Federal
Constitution is the supreme law of the land. In her judgement, she further explained that one of
the intrinsic features of the Federal Constitution is that the judicial power of the Federation is
vested in the superior courts with constitutional sanction provided to the subordinate courts to
exercise some degree of judicial power and that by binding the Magistrate to the dictates of the
Executive in the police and the Public Prosecutor, the law passed by Parliament attempts to
override this particular feature of the Federal Constitution. She further added that Section 4(1)
and 4(2) of POCA 1959 prohibits the Magistrate from applying his or her judicial mind and to
exercise independent discretion to determine whether the remand application should be
granted. This is because under Section 4(1) of POCA 1959, the Magistrate is mandatorily
required to order the detention for a period of 21 days, upon the Magistrate being produced with
a signed statement in writing by a police officer of a certain rank. On the other hand, Section
4(2) of POCA 1959 provides that the Magistrate is mandatorily required to order for an
extension of detention for a period of 38 days. Moreover, the Magistrate is bound to order for a
detention of a fixed period provided in Section 4(1) and 4(2) of POCA 1959 upon the dictates
of the police and the Public Prosecutor by use of the imperative words ‘shall’. This shows that
Section 4(1) and 4(2) of POCA 1959 denied the right of the Magistrate to decide the length and
measure of the detention as the Magistrate is mandatorily required to allow the first detention for
21 days and the second for 38 days on the express dictation of the police and Public Prosecutor
respectively. Plus, Rhodzariah Bujang FCJ in her judgement stated that Section 4(1) and 4(2)
of POCA 1959 is a legislative restriction of a judicial body to abide by the dictates of an
Executive body which is a violation of judicial power under Article 121 of the Federal
Constitution and the doctrine of separation of powers in Semenyih Jaya Sdn Bhd v.
Pentadbir Tanah Daerah Hulu Langat & Another Case (2017). Hence, both of them held that
Section 4 of POCA 1959 is void and unconstitutional and should be struck down for
contravening Article 121 of the Federal Constitution read together with the doctrine of
constitutional supremacy espoused in Article 4(1) of the Federal Constitution.

For the second issue which is whether the power exercised by the Minister’s 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 Federal Constitution, both Tengku Maimun Tuan Mat CJ and
Rhodzariah Bujang FCJ agreed that the insertion of the CGHA 1953 in Item 5 of the First
Schedule to POCA 1959 is ultra vires Article 149(1)(a) of the Federal Constitution. Tengku
Maimun Tuan Mat FCJ in her judgement concluded that Parliament intended to refer to all the li
contained in Article 149(1) of the Federal Constitution when the recital in POCA 1959 is only
referred to paragraph (a) of Article 149(1) of the Federal Constitution, hence, POCA 1959
has to be construed in accordance with that paragraph. Furthermore, with reference to the case
of Jalim Chand Saraogi v District Magistrate (1972) decided that gaming offences is not an
organised violence but is an organised crime, hence Item 5 of the First Schedule to POCA
1959 is construed not in accordance of paragraph (a) of Article 149(1) of the Federal
Constitution. For these reasons, Tengku Maimun Tuan Mat FCJ with reference to the case of
Selva Vinayagam Sures v Timbalan Menteri Dalam Negeri, Malaysia & Ors (2021), held that
Item 5 of the First Schedule to POCA 1959 which includes gaming offences such as the ones
provided in CGHA 1953 is ultra vires Article 149(1)(a) of the Federal Constitution.
Rhodzariah Bujang FCJ in her judgement further added that although, Item 5 of the First
Schedule to POCA 1959 has existed in POCA 1959 before the enactment of the Article
149(1)(a) of the Federal Constitution recital into it, but its continued existence is not in
accordance with the narrowly interpreted purpose of Article 149(1)(a) of the Federal
Constitution which seeks to prevent organised violence against property or persons.