Lawyer Ramkarpal Singh said this is because the Security Offences (Special Measures) Act 2012 or Sosma, which was enacted pursuant to Article 149 of the Federal Constitution, did not exclude the judiciary from giving bail under special circumstances.
“Article 149 which allows a law to be enacted on grounds of national security and public order cannot override the functions of the court to consider granting bail,” he said.
Ramkarpal was submitting before judge Mohd Nazlan Mohd Ghazali when challenging the constitutionality of Section 13 of Sosma, which prevented the court from considering bail when persons are charged with security offences under the Penal Code.
Melaka executive councillor G Saminathan, who is charged with 11 others with supporting the Liberation Tigers of Tamil Eelam (LTTE) group, wants to get bail pending the outcome of their trial.
Ramkarpal, who is appearing for Saminathan, said the constitution allowed for the separation of powers and acts as a check and balance on the executive and the legislature if they exceed their authorities.
He said Article 149 took away fundamental rights of persons but did not extinguish the power of the courts to consider bail application even for security offences.
He said the police could use Sosma procedures to investigate those accused of committing offences against the state or involved in terrorism and organised crime under the Penal Code.
However, the court now only has the discretion to offer bail to those charged with an offence against the state, and who have participated in serious criminal activities.
Even then, he added, the court is limited to offering bail to women, those below 18, and the sick and infirmed.
“Judges cannot offer bail to those charged with terrorism-related crimes. Sosma has usurped the full discretion of the courts to offer bail under special circumstances,” he said.
He gave the example of individuals charged with murder, which carries the death penalty under the Penal Code. Under the Criminal Procedure Code, however, bail is still offered although murder is classified as a non-bailable offence.
Deputy public prosecutor Muhammad Iskandar Ahmad said Sosma was passed by Parliament to pre-empt anyone from being a threat to national security and public order.
“Police cannot be allowed to act only after there is a loss of life or property,” he said.
Iskandar said the parliamentary debates on Sosma would also reveal that the basic rights of citizens like the right to freedom of speech, the right to property and freedom of movement could be curtailed in the larger interest of the nation.
He also said the state could discriminate against a class of people although Article 8 stated that citizens enjoy the right to equality and equal protection of the law.
“That is the reason male criminals above the age of 50 are exempted from caning while those below that age could be whipped,” he said.
On Nov 1, Sessions Court judge Rozina Ayob allowed Saminathan’s application to refer to the High Court on whether they can be offered bail despite being charged with alleged links to LTTE.
Nazlan will deliver his ruling on Friday.
Saminathan, taxi driver V Balamurugan, dispatch rider S Teeran, and scrap metal dealer A Kalaimughilan have been charged with knowingly giving support to the terrorist group on Facebook.
Another eight men were also charged with similar offences before two other Sessions Court judges, with their lawyers raising the constitutionality of Section 13 (2) as well.