THE Kuala Lumpur High Court took a brave step forward for the judiciary in striking down Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma), said human rights movement Suaram.
It said that the decision marked a turning point not only for the 12 individuals detained under Sosma but for countless others who were unjustly detained without trial under Sosma, Prevention of Crime Act 1959, Prevention of Terrorism Act 2015, and Dangerous Drugs (Special Preventive Measures) Act 1985.
“The acknowledgement by the High Court that Section 13 of Sosma runs contrary to the doctrine of separation of powers between the executive, the judiciary and the legislature marks a departure from long trend where the judiciary refused to acknowledge the deprivation of judicial power and oversight over the executive in a situation where a person is detained without trial,” said Suaram executive director Sevan Doraisamy.
This morning Justice Mohd Nazlan Mohd Ghazali allowed an application for an order to compel the Sessions Court to hear Malacca executive councillor and Gadek assemblyman G. Saminathan’s bid for bail despite being detained under the Security Offences (Special Measures Act) 2012 (Sosma).
Nazlan ruled that Section 13 of Sosma, which prohibited courts from granting bail in security offences cases, violates the doctrine of separation of powers between the judiciary, the legislature and the executive.
The judge ruled that the provision is unconstitutional as it usurps the courts’ power to grant or deny bail.
He said this in his ruling in a constitutional challenge brought by Saminathan, who was charged with supporting the Liberation Tigers of Tamil Eelam (LTTE) group, under Sosma.
Sevan said the court ruling echoed the long years of advocacy by civil societies and lawyers who have consistently fought against detention without trial since the days of the Internal Security Act 1960.
“The decision vindicates the argument against detention without trial and marks a transition point for Malaysia to depart from the old paradigm of detention without trial to a criminal justice system where fundamental liberties are respected.”
He also said the enforcement agencies must now acknowledge that the denial of a fair trial is unconstitutional and that matters of bail and remand must be left to the judiciary to decide as a check against abuse by the executive branch of government.
– https://www.themalaysianinsight.com/
In blow to Sosma, High Court allows DAP rep detained over LTTE links to seek bail
KUALA LUMPUR – Lawyers acting for G. Saminathan convinced the High Court today that the DAP assemblyman was entitled to bail despite the invocation of the Security Offences (Special Measures) Act for his detention, according to Bernama.
Provisions of the security law that allows detention without trial prohibit bail.
Saminathan was among 12 people including Seremban Jaya assemblyman P. Gunasekaran who were detained using the Sosma and charged over alleged links to the Liberation Tigers of Tamil Eelam.
The Malaysiakini news portal reported judge Mohd Nazlan Ghazali as finding that the Sosma provision that barred the courts from considering bail to be unconstitutional as it effectively allowed the executive to override the judiciary, violating the separation of powers among the different branches of government.
The landmark decision will also benefit the others still detained using the preventive detention law despite already being charged with supporting or possessing material related to the defunct Sri Lankan terrorist group.
Lawyer Ramkarpal Singh, who represented the DAP lawmaker, previously argued that the provision denying Sosma detainees bail was an overreach of the constitutional article that allowed the passage of security laws that may infringe on some civil liberties.
Among others, he said this effectively usurped the role of the judiciary as well as its lawful discretion in such matters.
On November 1, the Sessions Court decided that there was merit in the application filed by Saminathan and 11 others to challenge their prevention of bail under the Sosma and referred the matter to the High Court.
Aside from Saminathan and Gunasekaran, the others detained are V. Balamurugan; S. Teran; A. Kalaimughilan; S. Chandru; S. Arivainthan; S. Thanagaraj; M. Pumugan; R. Sundram; V. Suresh Kumar and B. Subramaniam.
They were variously arrested in October and charged at the end of the month with offences related to the LTTE.
The Sosma was among security laws the Pakatan Harapan coalition had suggested it would repeal while campaigning in the 14th general election but which it has since said would simply be reviewed now that it is in power.
– Malay Mail
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