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Monday, December 2, 2019

Court sets tomorrow to hear objection over legal challenge against Sosma

The Kuala Lumpur High Court set tomorrow to hear the prosecution’s preliminary objection to a Liberation Tamil Tigers of Eelam (LTTE)-linked businessperson’s legal challenge against the validity of the Security Offences (Special Measures) Act 2012 (Sosma).
Judge Mohamed Zaini Mazlan fixed the hearing date to hear the prosecution’s objection that the legal challenge ought to be dismissed, as the issue had allegedly been decided during applicant B Subramaniam’s earlier habeas corpus application at the Shah Alam High Court.
Today was initially set for hearing of Subramaniam’s Notice of Motion to challenge the validity of Section 4 (5) of Sosma, from which the applicant seeks to quash his related terrorism related charge under Section 130J(a) of the Penal Code.
However, upon DPP Rohaiza Abd Rahman raising the preliminary objection, Zaini adjourned the matter to tomorrow to allow both the prosecution and Subramaniam’s lawyer S Selvam to prepare and file affidavits for submission tomorrow.

On Rohaiza raising the preliminary objection, Selvam objected to it as he only was informed about it five minutes before proceedings began this morning.
When Zaini asked if the legal team was taken by surprise, Selvam replied that this was not raised earlier.
The judge then reminded the prosecution that it was imperative that early notice be given to the other side before raising any preliminary objection, in order to allow the other side to be adequately prepared to answer it.
“At the end of the day, we must emphasize the principle of justice. If there is suddenly a preliminary objection this morning, the lawyer will not have the opportunity to peruse the preliminary objection,” Zaini said.
When the judge asked what the preliminary objection was about, Rohaiza replied it was because the issue of the validity of Sosma has been raised in Subramaniam’s habeas corpus application, which the Shah Alam High Court has duly considered and dismissed.
Under the law, a habeas corpus application is a method by which a detainee may seek to secure release by challenging the validity of said detention.
Selvam then countered that the issue can still be raised in this application as the issue of res judicata does not apply in criminal cases.
The principle of res judicata refers to situations where a matter has been heard and decided on by a competent court, and thus parties are precluded from further pursuing the matter in another court.
Zaini then directed parties to file their respective affidavits and submissions by today and prepare to submit on the prosecution’s preliminary objection tomorrow.
The judge reminded parties that in the event the court dismissed the preliminary objection, then the court will proceed to hear Balasubramaniam’s application.
According to a copy of the Notice of Motion filed at the Kuala Lumpur High Court Registry last month, Balasubramaniam seeks to quash his LTTE-linked criminal charge under Section 130J(1)(a) of the Penal Code.
He claimed that this is because the charge was predicated on investigation under Section 4(5) of Sosma, which he alleged is invalid and contravenes Article 8 of the Federal Constitution, among others.
Section 130J(1)(a) of the Penal Code states that whoever knowingly and in any manner solicits support for, or gives support to any terrorist group, shall be punished with imprisonment for life or imprisonment for a term not exceeding  30 years, or with a fine, and shall also be liable to forfeiture of any property used or intended to be used in connection with the commission of the offence.
Section 4(4) of Sosma states that a police officer, without a warrant, may arrest and detain any person whom he believed to be involved in a security offence, in which said person may be detained for a period of twenty-four hours for investigation.
Section 4(5) of SOSMA states that notwithstanding subsection (4) of the same Act, a police officer of or above the rank of Superintendent of Police, may extend the period of detention for not more than 28 days, for the purpose of investigation
Article 8 of the Federal Constitution deals with the fundamental right of equality before the law and entitlement to equal protection before the law.
On Oct 31, Balasubramaniam was among 12 individuals hauled to the Kuala Lumpur Sessions Court to be charged over their purported links to defunct militant group, LTTE.
The 12 individuals were charged under Section 130J of the Penal Code, which deals with the offence of soliciting or giving support to terrorist groups or for the commission of terrorist acts. It carries a maximum punishment of life imprisonment or not more than 30 years in jail, on conviction.
On Nov 5, the Kuala Lumpur High Court dismissed a habeas corpus application by five of the 12 accused, which included Gadek assemblyperson G Saminathan among the five applicants, against their detention under Sosma, on the grounds that the matter has become academic due to them already been charged at the Sessions Court.
However on Friday last week, a separate Kuala Lumpur High Court allowed an application by Saminathan to challenge the validity of Section 13 of Sosma, which barred the courts from even considering any bail application by those charged with a security offence. - Mkini

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