Prosecution stands with AG on unconstitutionality of Sosma provision

The prosecution confirmed in court today that it takes the stance that a Security Offence (Special Measures) Act 2012 provision that denies courts from considering bail for those accused of terrorist-linked cases is invalid and unconstitutional.

DPP Muhammad Saifuddin Hashim Musaimi said this to the High Court in Kuala Lumpur during the mention of the bail application by restaurant owner B Subramaniam, who faces a terrorism charge linked to the defunct Liberation Tigers of Tamil Eelam (LTTE).

Saifuddin was referring to Section 13 of Sosma, which forbids the courts from considering bail applications from those charged with security offences, such as the LTTE-linked terrorism cases against Subramaniam and 11 other individuals.

On Jan 3, veteran lawyer and Bukit Gelugor MP Ramkarpal Singh claimed that Attorney-General Tommy Thomas seemed to hold a contradictory stance on whether Section 13 of Sosma was unconstitutional or otherwise.

This was because, despite Thomas’ reported stance that it is unconstitutional, a DPP in an LTTE-linked case on that day (Jan 3) had argued that the provision was valid and constitutional.

In today’s proceedings before Justice Mohamed Zaini Mazlan, Saifuddin informed the court that the prosecution’s stance is in line with that of Thomas’ stance in regard to the unconstitutionality of Section 13 of Sosma.

“In regard to the AG’s stance on the constitutionality of Section 13, our (prosecution’s stand in the LTTE-linked bail applications) is that the AG has answered this question raised by Ramkarpal (above), which states that Section 13 is not constitutional.

“The prosecution wishes for each bail application to be decided on its own (individual) merits,” Saifuddin said.

The matter was raised earlier this morning when Subramaniam’s lawyer Ramkarpal informed the court that last Friday, they received a letter from the AG on his (Thomas’) position on Section 13 of Sosma.

“Last Friday, there was a new development. We received a letter from the AG stating his position on Section 13. There was confusion. When we submitted (in earlier proceeding on Jan 3), they (the DPPs in the same earlier proceeding) took an opposite position,” Ramkarpal told Justice Zaini.

This then led to Saifuddin to clarify the prosecution’s position that they are in line with Thomas’ stance on Section 13 and seek for all the LTTE-linked bail applications be heard on their individual merits.

Justice Zaini then reminded parties that he is not bound by an earlier High Court ruling in November last year that Section 13 is invalid and unconstitutional, and that he would wish to consider the submissions of parties over the matter before he could make a decision on the constitutionality of the provision.

The judge then set Jan 29 for the decision on whether Section 13 of Sosma is constitutional or not.

On Nov 29 last year, High Court judge Mohd Nazlan Ghazali (above) ruled that Section 13 was unconstitutional for violating the doctrine of separation of powers of the judiciary, the executive and the legislature and that it is invalid for denying the courts the power to decide whether to grant bail to an accused in terrorism cases.

Subramaniam, 57, was among 12 individuals hauled before Sessions Courts nationwide from Oct 29 last year, to face terrorism charges over alleged involvement with the defunct militant group LTTE.

The others are Gadek assemblyperson G Saminathan, 34; Seremban Jaya assemblyperson P Gunasekaran, 60; 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; secondary school teacher Sundram Renggan @ Rengasamy, 52; and DAP member V Suresh Kumar, 43.

 - Mkini