Court to hear submissions on Sosma's bail precedent

Two judges at the Kuala Lumpur High Court have separately set next week to hear submissions on whether they are bound by another High Court judge's declaration on the invalidity and unconstitutionality of the Security Offences (Special Measures) Act 2012 (Sosma). 

 The submissions would be based on the provision that bars the court from considering bail for Liberation Tigers of Tamil Eelam-(LTTE)-linked terrorism cases.

Justice Muhammad Jamil Hussin fixed Jan 23 as the hearing date for Seremban Jaya assemblyperson P Gunasekaran’s defence and the prosecution to submit on whether a Nov 29 High Court declaration that Section 13 of Sosma was unconstitutional.

Another judge, Ahmad Shahrir Mohd Salleh, set Jan 24 to hear submissions on the same matter concerning the bail application of Gadek assemblyperson G Saminathan.

He made the decision this morning after hearing Saminathan's application for the court to hear his bail application.

Yesterday, in a separate LTTE-linked case involving restaurant operator B Subramaniam (below), Justice Mohamed Zaini Mazlan said his court was not bound by the other High Court’s ruling on Section 13, and set Jan 29 to deliver his verdict on whether the provision was deemed invalid.

The judges were referring to the ruling by High Court judge Mohd Nazlan Mohd Ghazali that Section 13 was invalid as it violated the doctrine of separation of powers between the executive, the judiciary and legislature by usurping the court’s power to grant bail in terrorism-linked cases.

Today, Jamil directed Gunasekaran’s counsel Ramkarpal Singh and DPP Muhammad Saifuddin Hashim Musaimi to submit on the issue on Jan 23, following over an hour of submissions whether Gunasekaran deserved to be granted bail for his LTTE-linked terrorism case.

When Jamil asked Saifuddin what was Attorney-General Tommy Thomas’ stance on Section 13, the DPP answered that the provision was unconstitutional, in line with Mohd Nazlan’s ruling, and the prosecution did not file an appeal against the said ruling.

Jamil: Even though the attorney-general's stance is that Section 13 is not constitutional, but Section 13 is still in force and the court must give effect?

Saifuddin: Section 13 is still there (in Sosma).

Jamil then remarked that there was a provision in the law stating specific provision (Section 13 of Sosma) could overwrite a general provision (the provisions on granting bail for non-bailable offences under Section 388 of the Criminal Procedure Code).

Under the law, non-bailable offences are ones where the courts have the discretion to allow or deny bail to the accused.

Ramkarpal then argued that due to the prosecution not appealing Mohd Nazlan’s ruling, it resulted in Section 13 no longer enforced.

“With Justice Mohd Nazlan’s decision not appealed, that provision (Section 13) is no longer enforced. Once declared unconstitutional, that remains in place unless it is set aside on appeal (to the Court of Appeal and Federal Court).

“The (Mohd Nazlan’s court) declaration takes effect when the section is declared unconstitutional.

“There is no more assumption that the section is constitutional until another (separate legal) challenge happens to declare it constitutional. That provision (Section 13) no longer exists, it was struck down (by Mohd Nazlan’s ruling),” Ramkarpal said.

Saifuddin then informed the court that the prosecution abides by Thomas’ stance that Section 13 is now an invalid law and that they would only argue on the merits of whether bail should be allowed or denied to those accused of terrorism offences.

Jamil then reminded parties that on the issue of constitutionality of a written law, the decision of another High Court does not bind other High Courts because the High Courts are of concurrent jurisdiction (equal status), and that such courts are only bound by a decision from a superior court such as the Court of Appeal and the Federal Court.

“Please submit further on this issue to assist me, on the effect of declaration (by a High Court) which is not set aside on appeal (to the Court of Appeal and Federal Court), over another High Court,” Jamil told the parties, and set Jan 23 to hear their submissions. 

During Gunasekaran's court proceedings, among those seen in the public gallery were DAP senior advisor Lim Kit Siang, MIC deputy president M Saravanan, and PSM deputy chairperson S Arulchelvan. - Mkini