A lawyer today urged the Kuala Lumpur High Court to make a bold decision by declaring the 28-day detention provision under the Security Offences (Special Measures Act) 2012 (Sosma) as unlawful.
S Selvam (above) said it is shameful for the court to allow Section 4(5) of Sosma to remain in force even though the minister has failed to gazette the provision which was reviewed in Parliament in April 2017.
"If not, it is going to be (a) disgrace that whatever passed in the Parliament will not be gazetted and the people don't know about it," he told the media outside the courtroom.
Selvam represents grocery shop owner S Subramaniam, 57, who was among the 12 charged over the purported links to the Liberation Tigers Tamil Eelam (LTTE).
On Nov 4, Subramaniam filed in the court to challenge the legality of Section 4(5) of Sosma, citing that the provision "had ceased functioning effectively on July 31, 2017, as the then home minister failed to gazette the review of the Sosma provision passed in Parliament".
In his submission earlier today, Selvam urged Justice Mohamed Zaini Mazlan to correct the situation and not allow ungazetted provision to function, and free his client.
Section 4(5) allows police to detain without trial an individual for 28 days for the purpose of investigation.
However, Section 4(11) of the same act states that Section 4(5) shall be reviewed every five years and shall cease to have effect unless the review was passed in Dewan Rakyat and Dewan Negara.
In April 2017, both Dewan Rakyat and Dewan Negara passed the review of the Sosma provision that allows for 28 days detention days to be extended from July 31, 2017, to 2022.
DPP Rohaiza Abdul Rahman, however, argued that the legislative branch only reviewed Section 4(5) via a resolution, which was passed in Parliament.
"There is no need for a resolution to be gazetted. The provision is still legit," she added.
Rohaiza also submitted that Selvam should not bring up the legality of the provision on the 28-day detention as he had put forward the same argument in the habeas corpus application filed by his client.
"Under the principle of res judicata, the application should be dismissed," she said.
Res judicata is a Latin legal term which refers to matter that had been adjudicated by a court and should not be pursued by the same parties.
Speaking to reporters later, Rohaiza said the res judicata principle is exempted when the party employs different lawyers.
"But in this case, the lawyers are still the same," she added.
Selvam told the media that the court which heard the habeas corpus bid by his client had ruled on Oct 25 that there was no need for the government to gazette the review of Section 4(5).
"However, both cases dealt with different matters. The previous one dealt with detention," added Selvam.
The court then set Dec 18 for decision.
Subramaniam was also represented by Gaithri R Thomas, G Alexandar and K Saraswathy. Also present in court was DPP Mohd Izhanudin Alias. - Mkini
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