NIVESH NAIR MOHAN v. DATO' ABDUL RAZAK MUSA & ORS

[2021] 6 MLRA 128

NIVESH NAIR MOHAN v. DATO' ABDUL RAZAK MUSA & ORS
Federal Court, Putrajaya
Tengku Maimun Tuan Mat CJ, Mohd Zawawi Salleh, Zaleha Yusof, Harmindar Singh Dhaliwal, Rhodzariah Bujang FCJJ
[Criminal Application No: 05(RJ)-2-03-2021(W)]
30 July 2021

JUDGMENT

Tengku Maimun Tuan Mat CJ:

Introduction

[1] Enclosure 1 is an application pursuant to r 137 of the Rules of the Federal Court 1995 to review and set aside the order of this court dated 19 February 2021.

[2] The applicant is one Nivesh Nair Mohan ('detenu') whose case stems from an application for habeas corpus which was dismissed by the High Court. On appeal to this court, the order of the High Court was upheld on 19 February 2021 by a majority of 4-1. This court delivered two written judgments - one on behalf of the majority ('majority judgment') and the other the dissenting judgment ('minority judgment').

[3] After carefully considering parties' written submissions and upon hearing their oral submissions, we were satisfied that the high threshold of review was made out and as such, we unanimously allowed encl 1.

[4] We now provide our reasons for the said decision.

[5] Unless expressed otherwise, our references to 'section/sections' is to those of the Prevention of Crime Act 1959 ('POCA 1959') and likewise, 'Article/Articles' is to those of the Federal Constitution.

Salient Facts

[6] The detenu was detained for a period of two years pursuant to a detention order issued by the Chairman of the Prevention of Crime Board ('Board') dated 6 May 2019 under subsection 19A(1). He then filed an application for habeas corpus alleging that the detention was ultra vires and bad in law and that accordingly, he ought to be released by order of the court.

[7] The primary basis of his allegation of ultra vires is premised on subsection 7B(2). The subsection, as we understand it and without having set it out, stipulates that members of the Board shall hold office for a period not exceeding three years unless re-appointed. According to the detenu, the noncompliance was borne out by the fact that the 1st respondent did not reply to the detenu's averments/question as to the validity of the appointments of certain members of the Board who ordered his two-year detention.

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