Provision in Sosma denying bail held to be unconstitutional 

0
140
Graphic: freemalaysiatoday.com

The Malaysian Bar welcomes the recent decision of the High Court in granting Gadek assembly person G Saminathan’s application for an order to compel the Sessions Court to hear his application for bail.

G Saminathan was one of 12 individuals detained under the Security Offences (Special Measures) Act 2012 (Sosma) in October this year allegedly due to links to the Liberation Tigers of Tamil Eelam (LTTE).

This decision of the High Court is historic as it recognises that Section 13 of Sosma, which provides that “Bail shall not be granted to a person who has been charged with a security offence”, as being ultra vires to Articles 8 (Equality) and 121 (Judicial power of the Federation) of the Federal Constitution. 

It was reported that Justice Mohd Nazlan Mohd Ghazali held that “Judicial power is central to the doctrine of the separation of powers between the Executive, the Legislature and the Judiciary which is a fundamental feature in the basic structure of the Constitution. … Any usurpation of the judicial power by any other arm of the Government infringes on the sanctity of the doctrine of the separation of powers, violates the basic structure of the Constitution, and is therefore unconstitutional”.

Malaysia’s experience with laws that undermine and detract from the doctrine of separation of powers as well as from the inherent judicial power of the courts have been a bane on our legislative landscape.  The Federal Court held in the landmark decision of Semenyih Jaya Sdn Bhd v Pentadbir Tanah Daerah Hulu Langat & Another [2017] 1 LNS 496 that “The judicial power of the court resides in the judiciary and no one else”.  This judgment reinstates the inherent judicial power of the courts and restores the independence of the judiciary, allowing it to play its role as the third organ of the state and keep in check any excesses of the executive or legislature.

READ MORE:  No more backpedalling, abolish Sosma without delay

Section 13 of Sosma is repugnant and is antithetical to the rule of law and the Federal Constitution.  It has been used to deny bail to numerous persons detained for security offences provided in Part VIA of the Penal Code. This should not be allowed to continue, and the executive should accept the decision of the High Court.  The Malaysian Bar therefore urges the attorney general not to pursue an appeal in this regard.

In a new Malaysia, we expect the executive to take a more nuanced and circumspect approach to court decisions, instead of just adopting a knee-jerk, mechanical approach, when decisions do not go in its favour.

The Malaysian Bar once again calls for the urgent repeal of Sosma

Abdul Fareed Abdul Gafoor is president of the Malaysian Bar

This piece dated 3 December 2019 is reproduced from here and has been edited for style only. 

(Visited 137 times, 1 visits today)
Thanks for dropping by! The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

Our voluntary writers work hard to keep these articles free for all to read. But we do need funds to support our struggle for Justice, Freedom and Solidarity. To maintain our editorial independence, we do not carry any advertisements; nor do we accept funding from dubious sources. If everyone reading this was to make a donation, our fundraising target for the year would be achieved within a week. So please consider making a donation to Persatuan Aliran Kesedaran Negara, CIMB Bank account number 8004240948.

Join the conversation

avatar
750
  Subscribe  
Notify of