Wan Junaidi to meet AG over apex court’s decision on ouster clause
KUCHING: Minister in the Prime Minister’s Department (Parliament and Law) Datuk Seri Wan Junaidi Tuanku Jaafar will meet with the Attorney-General (AG) to continue reviewing the Federal Court’s recent decision on the ouster clause.
An ouster clause is a provision included in a legislation to exclude judicial review of acts of the executive, by stripping the courts of their supervisory judicial function.
“This is a big matter that should be considered deeply, as laws that previously could not be challenged in court, can now be challenged.
“For example, the state government’s decision not allowing a particular individual from Peninsular Malaysia to enter Sarawak, which previously cannot be challenged, means that the individual can now bring it to court to be challenged,” he said when met at a gathering with the community at Penview Convention Centre here yesterday.
Some 500 people from the Bako and Demak Laut areas attended the gathering.
Wan Junaidi said that based on his research, he found 60 clauses which could now be challenged and bought to court, meaning that the state government no longer has absolute power – something he deemed as ‘not constitutional’.
This brings a huge implication to executive bodies that decide on the clauses, he added.
“Thus, I will have a discussion with the AG (Tan Sri Idrus Harun) on matters that have been decided.”
He explained that there were legal clauses that cannot be challenged, but recently one of these was challenged when the Federal Court allowed one case under the Prevention of Crime Act (Poca) to be challenged.
The Federal Court had on April 25 ruled that Poca violated the doctrine of separation of powers.
A news portal had reported that the decision was made in allowing a habeas corpus appeal by a man, currently a restricted resident in Johor for alleged involvement in organised criminal activities.
A five-member bench chaired by Chief Justice Tengku Maimun Tuan Mat said Sections 4 and 15B of Poca intruded into the judicial domain and therefore violated the doctrine of separation of powers.
“We unanimously find that Sections 4 and 15B are unconstitutional, struck down under Articles 121 and 4 of the Federal Constitution,” the chief justice said in a ruling delivered after an online proceeding.
Section 4 lays down the procedures for magistrates for the granting of remand orders to the police, while Section 15B, which is an ouster clause, restricts judges from inquiring into the grounds for detention.
Justice Tengku Maimun said the bench also adopted the minority judgments in Maria Chin Abdullah v Ketua Pengarah Imigresen and Zaidi Kanapiah v Home Ministry delivered last year, and the unanimous verdict in T Dhinesh v Home Minister pronounced early this year.
Judge Nallini Pathmanathan, who delivered the judgment in Dhinesh’s appeal, declared that the ouster clause had relegated judicial scrutiny to nothing less than a clerical function.
The apex court’s ruling restates that the Constitution is supreme and any law passed by Parliament must conform to the Constitution.
It also affirms that judicial power cannot be encroached by the legislature and the executive arms of the government.
By upholding three previous judgments, the ruling also affirms that the basic structure doctrine is part of the Constitution.