The High Court in Kuala Lumpur has become the first to agree that it is bound by another High Court's ruling that a person accused of terrorism still deserves to have his bail application considered.
Justice Ahmad Shahrir Mohd Salleh makes the ruling during open court proceedings as the accused, Gadek assemblyperson G Saminathan, looked on from the dock.
Saminathan is seeking for the court to consider granting him bail in relation to his terrorism case linked to the Liberation Tigers of Tamil Eelam (LTTE).
In November last year, High Court in Kuala Lumpur judge Mohd Nazlan Mohd Ghazali ruled that Section 13 of Sosma, which bars the court from considering the bail application from a person accused of terrorism, is invalid for usurping the court's power to grant bail, among others.
Justice Nazlan’s ruling was made in relation to Saminathan’s two terrorism charges of supporting the LTTE and for possessing materials linked to the defunct militant group.
Justice Nazlan (above) only made the ruling in the context of Saminathan’s application on whether Section 13 of Sosma is unconstitutional. The actual trial judge of the DAP representative’s terrorism case is Justice Ahmad Shahrir.
Saminathan, 34, is among 12 LTTE-accused whose bail applications are still pending at various benches of the High Court in Kuala Lumpur.
At the Sessions Court in Malacca on Oct 29 last year, Saminathan was charged with the two terrorism offences. The case was later transferred to the High Court in Kuala Lumpur, under Justice Ahmad.
During a brief oral ruling this morning, Justice Ahmad said the present court will not rehear the issue of whether Section 13 is constitutional as the matter has been decided by Justice Nazlan.
“After having considered submissions by the prosecution and defence, it is clear the issue in the present application is in relation to the Section 13 decision by a different judge (Justice Nazlan).
“This court will not revisit the same issue,” Justice Ahmad ruled.
Earlier, during submissions this morning, Saminathan’s counsel Ramkarpal Singh submitted that the present court is bound by Justice Nazlan’s ruling because it involved the same two charges faced by the accused Saminathan (below).
Justice Ahmad: Is this in relation to the same charges (faced by Saminathan)?
Ramkarpal: Yes. The actual case (Saminathan’s two LTTE-linked terrorism charges) were transferred here, a situation of the same case heard before two judges of concurrent jurisdiction.
On the question of whether a (High Court) judge set to hear the actual trial (Saminathan’s terrorism case) is bound by Justice Nazlan’s order on Nov 29, the answer is 'yes'.
Justice Nazlan’s order does not suffer from a lack of jurisdiction or defect. One High Court cannot set aside the final order of a High Court, what more if it involves the same case (Saminathan’s terrorism case).
Ramkarpal also raised the analogy of a new judge taking over an ongoing criminal trial where the accused had already been ordered to enter his defence due to the prosecution having been found to have established a prima facie case.
“He (the new judge) cannot reverse the enter defence order of the previous judge. He (the new judge) has to proceed with the case and hear out the defence, regardless of whether he (the new judge) agrees with the previous judge’s (prima facie) ruling,” Ramkarpal said.
When Justice Ahmad asked about the status of the other LTTE cases at the other benches of the High Court in Kuala Lumpur, DPP Muhammad Saifuddin Hashim Musaimi said the other courts had set varying dates to deliver their decisions on whether they are bound by Justice Nazlan’s ruling.
Two other benches of the High Court (with judges Muhammad Jamil Hussin and Collin Lawrence Sequerah) have set Feb 5 for a decision whether Section 13 of Sosma is constitutional, in relation to the bail applications by LTTE-linked accused Seremban Jaya assemblyperson P Gunasekaran and DAP member V Suresh Kumar.
Justice Jamil is the trial judge for Gunasekaran’s case while Justice Sequerah is the trial judge for Suresh Kumar’s case.
It was also reported that another High Court in Kuala Lumpur (under judge Mohamed Zaini Mazlan) set Jan 29 for his decision on whether Section 13 of Sosma is unconstitutional.
This is in relation to restaurant operator B Subramaniam’s application for bail linked to his LTTE terrorism case.
During today’s proceedings, Ramkarpal (above) also explained to Justice Ahmad that the other High Courts’ situations vary from the present matter because the LTTE-linked terrorism cases before these courts are different from Saminathan’s while Justice Nazlan’s ruling was made in relation to an application to Saminathan’s two LTTE-linked charges.
After Justice Ahmad made his ruling that his court is bound by Justice Nazlan’s ruling, the defence and prosecution then submitted on the merits of whether Saminathan should be allowed or denied bail in relation to his two LTTE-linked terrorism charges.
The judge then set Jan 29, at 2.30pm, to deliver his decision on Saminathan’s bail application.
Saminathan is among 12 individuals hauled before Sessions Courts nationwide from Oct 29 last year, to face terrorism charges over their alleged involvement with LTTE.
The others are Gunasekaran, 60; Suresh Kumar, 43; Subramaniam, 57; taxi driver V Balamurugan, 37; dispatch rider S Teeran, 38; scrap metal dealer A Kalaimughilan, 28; the chief executive of a corporation S Chandru, 38; technician S Arivainthan, 56; storekeeper S Thanagaraj, 26; security guard M Pumugan, 29; and secondary school teacher Sundram Renggan @ Rengasamy, 52.
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