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Due to international developments and an increase in terrorist attacks in all parts of the world, Malaysia introduced in 2012 further security legislation that increased the power of security agencies to detain anyone suspected of being involved in security offences under the Penal Code. These included the Security Offences (Special Measures) Act 2012 or “SOSMA”, which was criticised at the time of its enactment as an instrument aimed at stifling political dissent.

State Assembyman, G. Saminathan and 11 others who were recently charged under SOSMA, for having alleged ties with the Liberation Tigers of Tamil Eelam, a terrorist group, have however successfully challenged their right to bail under the Federal Constitution. Their right to bail was expressly excluded under section 13 of SOSMA which meant that they were effectively under preventive detention without recourse to a court.

Lawyers for the accused argued successfully that the High Court was bound to abide by the Federal Court decision in Indira Gandhi Mutho’s case where it was unanimously held that the judicial power of the Federation resides in the superior courts and cannot be taken away, not even by legislation or constitutional amendment. Therefore, section 13 of SOSMA by restricting the power of the High Court to review the detention of the accused, was clearly an interference with the authority of the High Court as enshrined under the Federal Constitution. High Court Judge Mohd Nazlan Mohd Ghazali therefore ruled that Section 13 of SOSMA was ultra vires Articles 8 and 121 of the Federal Constitution.

In a further development, Attorney General Tommy Thomas announced shortly after the High Court’s decision that the Malaysian Government would not be appealing the decision and stated that Parliament in 2012 when it passed SOSMA, had failed to take into account that Section 13 eroded the judicial function of the Courts and undermined judicial power. He also said:

“Justice Nazlan recognised the principles in the basic structure doctrine developed in the Indira Gandhi and Semenyih Jaya cases, when holding Section 13 of SOSMA 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 their charging and their final appeal before the Federal Court”.

With these pronouncements, public prosecutors must deal with bail applications under SOSMA where the merits of these applications may be properly ventilated before a judge acting as an impartial arbiter, as contemplated by the Federal Constitution.

In a recent statement, the Malaysian Bar said that it was heartened by the decision of the Malaysian Government not to pursue an appeal and by its recognition of “the basic structure of the Constitution”.

RLSE