Media Release By Attorney General - Section 13 Of SOSMA Is Unconstitutional

I received this a few days back.

JABATAN PEGUAM NEGARA, MALAYSIA 

(ATTORNEY-GENERAL’S CHAMBERS, MALAYSIA) 

NO.45, PERSIARAN PERDANA, PRESINT 4 

PUSAT PENTADBIRAN KERAJAAN PERSEKUTUAN 

62100 PUTRAJAYA 

Tel. : 03 - 8872 2000 Faks : 03 - 8890 5609 Web : www.agc.gov.my 

MEDIA RELEASE 

BAIL UNDER SOSMA 

1. On 29th October 2019, 12 suspects linked to the terrorist group known as the Liberation Tigers of Tamil Eelam (“LTTE”) were charged under Section 130J of the Penal Code for giving support to LTTE through social media to promote the group to the public, as well as under Section 130JB of the Penal Code for having possession of items related to LTTE. The 12 accused were investigated for some time by our investigative agencies entrusted to prevent the outbreak of terror or violence. This is to be lauded. In comparative terms, Malaysia is one of the safest countries in the world, principally because of the masterful vigilance of our security forces, who have an outstanding track record of nipping the threat of violence at a very early stage. Hence, the charging of the 12 accused for these offences under the Penal Code should not create controversy, particularly, when there are no equivalent laws under which they can be charged. Like in any other case, the burden is on the prosecution to prove beyond reasonable doubt in the ordinary way in an open court that these accused are guilty of these offences.

2. Sections 130 and 130J(b) of the Penal Code, under which all of them have been charged, are offences to which the Security Offences (Special Measures) Act 2012 

(“SOSMA”) apply. SOSMA provides for special measures in dealing with a suspect from the time of his arrest until an appeal is disposed by the apex courts. But ever since its enactment, SOSMA has been subject to serious criticism from many sectors of society. 

3. Perhaps the most pernicious feature of SOSMA (???) is the absolute prohibition in Section 13 of bail from the time of arrest until trial, indeed, even after an acquittal by the trial court pending appeal by prosecution to the apex court. This means that the power of a Court to hear and determine a bail application by an accused before it, which is a daily occurrence in all our courts handling criminal matters, is removed. Likewise, an accused has lost his right to make a bail application at the earliest opportunity, which is his right under most non-SOSMA charges under our criminal jurisdiction.

4. Under our criminal law, whether an accused upon being charged in court can seek bail depends on which of 3 categories his charge belongs to: 

(i) bailable offences : these are minor offences for which the court must give bail, unless satisfied that in a particular case it should not be given;

(ii) non-bailable offences : for serious crimes, including murder, rape and kidnapping. In this category, it is for the accused to convince a court to give bail in the circumstances of his case; and

 

(iii) unbailable offences : this is a small list of cases, including SOSMA, where the court has no power or jurisdiction to hear a bail application. Thus, bail can never be given in this class of cases. 

5. It is the third category of offences that we are concerned with for present purposes. It will be noted that for these unbailable offences, the court’s power to hear
and determine bail applications is altogether removed. The issue is whether such removal affects “judicial power”, which under the Federal Constitution, vests solely and exclusively in the Judiciary, as the third branch of government.

6. What the drafters of SOSMA and the 2012 Parliament that enacted the law did not take into account was that the judicial function of the Courts is eroded by virtue of Section 13. Consequently, judicial power is undermined. 

7. Our constitutional law has made substantial advances since SOSMA was enacted. The Federal Court decisions in Indira Gandhi in 2016 and Semenyih Jaya in 2017 accepted the basic structure doctrine, and more significantly, the fundamental entrenched principle of highest importance, namely, the constitutional duty of the courts – to the exclusion of all other authorities – to judicially decide disputes. That

would include contested bail applications. 

8. I recognised this new trend in constitutionalism when I applied to the High Court this January for an order to transfer the prosecution’s case of Dato’ Sri Najib Razak in
the SRC matter from the Sessions Court to the High Court. Previously, the Public Prosecutor achieved the same result by simply issuing administratively a Certificate of  Transfer, thereby, by-passing the Court. Despite vigorous objections by Najib Razak, the High Court granted the order to transfer, which decision was upheld by the appellate courts. It currently represents the law in Malaysia.

9. Justice Nazlan in the High Court recognized the principles in the basic structure doctrine and developed in the Indira Gandhi and Semenyih Jaya cases when holding Section 13 of the SOSMA Act as unconstitutional because that section closes the door  to judicial application for bail. Thus access to justice is denied to all accused under  SOSMA between charge and their final appeal before the Federal Court. In my

opinion, any appeal against the decision of the High Court is doomed to fail. 

(OSTB : This last statement by the AG raises questions. If the High Court is so great, then why do we need higher courts like the Court of Appeal and the Federal Courts? It negates the whole concept of the appeals process.)

10. It should be pointed out that the practical effect of Section 13 of SOSMA is that because an accused cannot apply for bail from the time he is charged until his trial (which may take as long as 9 to 12 months) he is effectively under preventive detention without recourse to court: a fate similar to those who were detained under Internal Security Act, 1960. The ISA was severely criticised for decades prior to its repeal in 2012. This is particularly unacceptable because of the fundamental principle

underpinning criminal jurisprudence that an accused is innocent until found guilty by court. Hence, all the SOSMA accused must be presumed innocent until conviction; yet they cannot seek bail from court. 

11. Concerns have been expressed whether a court would grant bail to a SOSMA accused who is building a bomb and intends to use it to kill innocent members of the
public. In such a case, Malaysians should be assured that once our DPP informs the court (with some credible evidence) that a bail applicant is planning such dastardly and violent acts, bail will be refused. No judge will be irresponsible to place public safety in jeopardy. Ultimately, we must trust the judges to decide in each case when a bail application is made whether to grant or refuse it, and in cases where bail is granted, whether to impose any conditions, including the accused being restricted at
his home, wearing a monitoring device, reporting daily to the police or any other

conditions that the police / DPP may ask. 

12. For these reasons, in the exercise of my discretion, I have decided that the Public Prosecutor will not appeal against the recent decision of the High Court in holding Section 13 of SOSMA unconstitutional. Our DPPs will deal with each bail application on its merits and the Court will be act as arbiter, as contemplated in the Federal Constitution. 

Tan Sri Tommy Thomas
Attorney General / Public Prosecutor

13th December 2019 

My comments :  In his pro opposition days Tommy Thomas was dead against the detentions (legal detentions) under the ISA or any other law.

Now since he is the AG, Tan Sri Tommy Thomas still has the same feelings. Hence his statement that   I have decided that the Public Prosecutor will not appeal against the recent decision of the High Court in holding Section 13 of SOSMA unconstitutional.  

I read paragraph 11 above as the gist of Tan Sri Tommy Thomas' Media Release. 

Concerns have been expressed by whom? Obviously by the Police, whose job it is to catch all these trouble causing monkeys. If the baddies are released on bail, it only makes the job of the Police more difficult.

Paragraph 11 is obviously worded to placate the Police. 

My own view is this.

The Parliament is always super supreme. 

The Parliament represents us - the people. 

Who voted and passed the Federal Constitution? 

Answer : It is the Parliament.

Who can amend the Federal Constitution?

Answer : It is the Parliament.

Who can even abolish the entire Federal Constitution?

Answer : The Parliament.

Who gives our YDP Agong his role and his authority?

Answer : The Parliament.

Who gives the Prime Minister his powers?

Answer : The Parliament.

Who can restrict the term of the Prime Minister (to two terms only)?

Answer : The Parliament.

It is always Parliament that is supreme. 

Folks do not forget this. 

Similarly the ISA has been abolished by Parliament.

Similarly the SOSMA has been passed by Parliament.  

Agree or not, suka atau tak suka we must respect the laws passed by Parliament.

If we do not respect the Parliament, then we might as well return to the jungle. 

When it comes to the security laws like SOSMA (or the ISA which should never have been abolished) for a certainty these laws were drafted after inputs from the experts in the field - especially the Police and the folks at the Ministry of Home Affairs. 

These are the people who know what is happening on the ground. Listen to them. 

Tan Sri Tommy Thomas, in that case can you make a statement on the power of the Police to assist the various religious authorities to arrest Shias on account of their faith?  Is that constitutional or not constitutional?  The knife can cut both ways bro.

If you wish to do something which (agree or not) seems to also help the LTTE brothers, then please extend your office to help the Shias as well.

The judiciary (or the Attorney General Tan Sri Tommy Thomas) have no place to overrule a law that has been passed by Parliament.

If Section 13 of the SOSMA refuses bail for "SECURITY OFFENDERS" then so be it. That is the law. Please obey the Law. If the judiciary and the AG refuse to obey the law, then why should the rest of the people obey the laws.

Yes I agree fully that  -  “judicial power”, which under the Federal Constitution, vests solely and exclusively in the Judiciary  - but that does not mean that the judiciary can  'legislate from the Bench'.   Or that the AG can give instructions to his officers to NOT OBEY the law. That shall be the sole domain of Parliament.

If the Judges can overrule Parliamentary laws or the AG can disobey the laws passed by Parliament, then what happens to the concept of the separation of powers?

But there is always a way out.

If the law is bad, then go and change it through Parliament. 

The procedure is well known and it is written in stone.

It is called the legislative process. 
That is how the ISA was abolished - through Parliament.

But who says that Section 13 of the SOSMA is unconstitutional?

By the same token, how do you make being Shia a crime? 

Which you do - through your silence over the matter. 

Or your taichi that it has been excluded under the Islamic whackapoo?

The SOSMA handles SECURITY OFFENSES.

This does not include the Boy Scouts of Bangladesh.  

The LTTE are another bunch of folks altogether. 

Here are two SOSMA cases that have gone wrong or have not been fully resolved :

1.  *Kes Halimah Hussein*

Pada Februari 2013, Halimah Hussein bersama 2 yang lain telah ditangkap dibawah SOSMA atas tuduhan menggalakkan keganasan. Namun pada 20 Mei 2013, Hakim Mahkamah Tinggi telah melepaskan dan membebaskan ketiga-tiga mereka.  Pembebasan ini menyebabkan Halimah Hussein menghilangkan diri dan apabila tangkapan semula hendak dilaksanakan beliau sukar untuk dikesan. 

(OSTB : So the judge released Halimah Hussein. Halimah Hussein has not been found until today. There is nothing to indicate that she is not involved in terror related activities.)

2. *Kes Letupan Bom di Pusat Hiburan Movida*

Serangan bom di pusat hiburan Movida yang berlaku pada Jun 2016 merupakan serangan pertama pengganas di negara ini dengan melempar bom tangan ke dalam pusat hiburan tersebut. 

Serangan ini mengakibatkan 8 orang awam cedera dan 2 daripadanya cedera parah. 

Susulan daripada serangan tersebut, pihak polis memperolehi maklumat terdapat 10 bom tangan yang disimpan oleh kumpulan pengganas. Satu bom telah digunakan dalam serangan Movida, dua bom dijumpai disimpan oleh ahli kumpulan tersebut dan dijumpai di dua tempat berasingan iaitu di Batu Pahat dan Kajang. Namun, sehingga kini pihak polis masih belum menemui 7 lagi bom tangan tersebut. Selain bom tangan, pihak polis turut menemui IED dan sepucuk pistol bersama 25 butir peluru.

In other words the Police know what they are doing. 

Acccording to the law, according to SOPs and written procedures the Police know best how to do their job. 

(Yes, yes I know we have to make exception for wrongdoings and aberrations - but that is why we call them wrongdoings and aberrations.)

The Police best be left alone to do their job. 

What we need is better selection of Policemen, especially at leadership levels, imposing highest standards of professionalism and ethics in the Police force, completely remove all religion from the Police institution, and having a tight system of monitoring, checks and balances.

Tighten procedures and watch them closely but always make it easier for the Police to do their job.  

And above all else, we must respect the Parliament. 

Parliament passes the laws. 

We must obey the laws passed by Parliament.

If you dont like a law then amend the laws - through Parliament.

The judges or the AG cannot make arbitrary decisions to not obey the Law.

If you think you can do that - then what about the arrests of the Shias and the Malay salesgirl who just happened to be working when her Chinese owned bookshop was raided by the religious fellows (over that Irshad Manji book) ? 

Why do you remain silent on that?