Press Release
Provision in SOSMA Denying Bail Held to be Unconstitutional
The Malaysian Bar welcomes the recent decision of the High Court in
granting Gadek assemblyperson, G Saminathan’s application for an order
to compel the Sessions Court to hear his application for bail.1
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.”2
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.
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.
President
Malaysian Bar
3 December 2019
1 “LTTE case: Court allows Gadek rep’s bid for bail hearing”, Malaysiakini, 29 November 2019.
2 “High Court allows Gadek rep Saminathan to apply for bail in LTTE case”, The Star Online, 29 November 2019.
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