Don’t appeal High Court decision in LTTE case if you can’t repeal Sosma, lawyers tell govt

Jerry Choong
Family members of LTTE-linked suspects gather at the Parliament entrance to submit a memorandum to Parliament Speaker Tan Sri Datuk Mohamad Ariff Mat Yusof in Kuala Lumpur November 21,2019. — Picture by Ahmad Zamzahuri

KUALA LUMPUR, Dec 1 — Lawyers have suggested that the Pakatan Harapan (PH) administration should not appeal against the High Court’s decision to allow DAP assemblyman G. Saminathan to post bail despite being detained under the Security Offences (Special Measures) Act 2012 (Sosma) since the government has failed to repeal the law. 

Advance Tertiary College senior law lecturer and academic director Daniel Abishegam said if Sosma cannot be repealed, the provisions for detention without trial should at least be removed by the PH government, as per their election promise.

“Detention without trial goes against the most basic principles of natural justice and prevents the accused from having a fair trial and therefore goes against the rule of law,” he told Malay Mail.

Abishegam said if someone’s guilt cannot be proven in court, then they should not be detained.

When asked if the decision can also be extended to preventive detention, he said for the time being it appears to be limited to only bail.

“Given the trend of courageous decisions by our judiciary in the Semenyih Jaya case and the Indira Gandhi case, I think the time would be ripe to challenge the constitutionality of the law itself, if it is not repealed,” Abishegam said.

Malaysian Bar President Abdul Fareed Abdul Gafoor speaks during a press conference in Kuala Lumpur March 16, 2019. — Picture by Yusof Mat Isa

Malaysian Bar president Abdul Fareed Abdul Gafoor called upon Attorney-General Tan Sri Tommy Thomas not to appeal against the decision in the interest of justice.

“We welcome the High Court decision to allow bail for an accused, upon being charged in court despite the provision prohibiting it under Sosma. The Bar is of the view that one should not be incarcerated before guilt can be proven.

“The Government should review Sosma’s detention provision to be in line with remand procedures under the Criminal Procedure Code (Amendment) Act 1963. Equally so, we call upon them to review and amend any specific legislative provision that impedes an accused’s right of bail,” he said. 

Abdul Fareed reiterated the Bar’s stance on Sosma being an affront to the very basics of natural justice since it destroys the fabric of good governance in a democratic system.

“We urge the government to repeal Sosma and all other draconian laws in this country, as there are other specific and general laws that adequately address the concern of security threats,” he said.

Lawyers for Liberty director Melissa Sasidaran similarly echoed Abdul Fareed’s view, pointing out that the High Court decision augured well for Malaysia’s future as a modern democratic country.

“We welcome the decision by the Kuala Lumpur High Court Judge Mohd Nazlan Mohd Ghazali today, in ruling that section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) is unconstitutional and ultra vires Articles 8 and 121(1) of the Federal Constitution,” she said in a statement.

Pointing out that the High Court’s decision is due to the fact that it divests judicial discretionary power from the courts to evaluate whether to grant or refuse bail applications, Sasidaran added that this affirms the judicial power of granting bail cannot be restricted or prohibited.

“The decision also upholds the doctrine of the separation of powers between the executive, the legislature and the judiciary which is a fundamental feature in the basic structure of the Federal Constitution.

“Coupled with Chief Justice Tengku Maimun’s recent speech calling for judges to defend the principle of separation of powers, independence of the judiciary and to uphold the rule of law, is a good sign,” she said, adding that the Attorney-General and the government should accept the decision instead of appealing against it.

On Friday, Mohd Nazlan ruled that Sosma’s provision barring courts from considering bail is unconstitutional since it permitted the country’s executive branch to override the judiciary, which violated the separation of powers.

The decision that worked benefitted Saminathan, one of 12 people arrested under Sosma for alleged links to the now-defunct Liberation Tigers of Tamil Eelam movement, will likely work in favour of the others still being detained, among them Seremban Jaya assemblyman P. Gunasekaran.

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