The Malaysian Insight

THE Kuala Lumpur High Court will rule on the constitutionality of denying bail to a DAP assemblyman detained under the Security Offences (Special Measures) Act 2012 (Sosma) this Friday.

High Court judge Mohd Nazlan Mohd Ghazali set the date this evening after hearing arguments from G. Saminathan’s lawyers.

The Malacca executive councillor is one of a dozen men arrested last month for alleged links to the Liberation Tigers of Tamil Eelam (LTTE).

Bukit Gelugor MP Ramkarpal Singh represented Saminathan who has been under detention since October 29.

Ramkarpal, assisted by Sangeet Kaur Deo, submitted that Section 13 of Sosma is unconstitutional as it involved a total restriction of bail.

He also argued that the law was discriminatory as it only applies to men.  

Section 13(1) reads that bail shall not be granted to a person who has been charged with a security offence while Section 13(2) reads that exception are made for persons below 18; women; or the sick and infirmed.  

“The power to consider bail is a judicial power and the prohibition amounts to usurpation of judicial function by Parliament,” Ramkarpal told today’s hearing.

The lawyer argued that the high court is empowered to determine whether Section 13 of Sosma is ultra vires (acting beyond the legal bounds) of the constitution.

Ramkarpal said “un-bailable” offences were never actually defined in any law. 

“What is stated are bailable and non-bailable offences, which means the court has discretion.

“We are asking the court to strike down Section 13 as unconstitutional.

“It is important to note that we are now concerned with the principle of separation of powers. It boils down to that, the executive, the legislative and the judiciary. Parliament cannot assert its power over the judiciary. That is very clearly demonstrated in Semenyih Jaya (landmark ruling in 2017).”

Deputy public prosecutor Mohamad Iskandar Ahmad led the prosecution.

Saminathan, dressed in a blue shirt, sat in the dock. Standing guard on either side of the dock were two masked police officers.

Some 30 relatives were present in the public gallery. Lending their support also were DAP lawmakers Lim Kit Siang, Yeo Bee Yin, Teo Nie Ching, Charles Santiago, as well as former Bar Council president Ambiga Sreenevasan.

Last month, a dozen men were arrested and detained under Sosma, and later charged under Chapter 6a of the Penal Code for offences relating to terrorism. 

The outcome of Saminathan’s challenge would affect the other 11 eleven men, as their cases have been stayed pending a decision.

The twelve men, were charged on October 29 and 31 with multiple offences related to LTTE, which once waged a civil war to carve out a homeland for Tamils in largely Buddhist Sinhalese Sri Lanka.

Yesterday, The Malaysian Insight reported that the families and supporters of the detainees said they were facing police intimidation.

They said they had received calls from the police demanding that they refrain from holding gatherings and vigils in support of the detainees. They said they were also forbidden from posting on social medial anything related to the case.

The relatives of 11 detainees visited Suhakam to hand over a memorandum supported by Suara Rakyat Malaysia (Suaram). –November 26, 2019.