KUALA LUMPUR: The High Court here today ruled that judges can consider bail applications even if the accused is charged with a terrorism-related offence.
Judge Mohd Nazlan Mohd Ghazali said the judiciary, an independent arm of the government, exists to check any excesses by the legislature and executive.
“The principle of separation of powers is a hallmark of a modern state,” he said in allowing the constitutional challenge brought by Melaka executive councillor G Saminathan, who was charged alongside 11 others with supporting the Liberation Tigers of Tamil Eelam (LTTE) group.
He also said that Section 13 of the Security Offences (Special Measures) Act 2012 or Sosma is ultra vires Articles 8 and 121 of the Federal Constitution.
“Section 13 is unconstitutional because it divests from the courts the judicial discretionary power to evaluate whether to grant or refuse bail applications,” Nazlan said in his broad judgment delivered before a packed courtroom.
“Accordingly, my answer to the first question on whether Section 13 of Sosma is ultra vires Article 121 (1) of the constitution is in the affirmative.”
Nazlan also said Section 13 prohibits the granting of bail to a person charged with an offence under Chapter 6A of the Penal Code for terrorism-related charges.
Saminathan was charged with offences under Section 130J for giving support to a terrorist group and 130JB for possessing items associated with a terrorist group.
Sosma was enacted by Parliament in accordance with Article 149 of the Federal Constitution.
This article permits the promulgation of any act of Parliament that is designed to stop or prevent any threat of action which is, among others, prejudicial to public order or the security of the federation.
It also states that any such law is valid despite being inconsistent with any of the provisions of Articles 5, 9, 10 and 13 on fundamental rights.
Nazlan said the Federal Court had made clear in the case of Semenyih Jaya that under Article 121 (1), the judicial power of the courts resides only in the judiciary. He also said the High Court was bound by that ruling.
“The power to adjudicate in civil or criminal matters brought to the courts are exclusive to the courts.
“Judicial power is central to 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 constitution,” he added.
He said the apex court in the recent case of Alma Nudo Atenza v PP held that the separation of powers between the legislature, the executive and the judiciary was a hallmark of a modern democratic state.
“Any usurpation of judicial power by any other arm of the government infringes on the sanctity of the doctrine of the separation of powers, violates the basic structure of the constitution, and is therefore unconstitutional,” he said.
He said judicial power includes the authority to grant or refuse bail to an accused person.
“This is also well in accordance with the presumption of innocence and the objective of bail, which is to ensure the attendance of an accused at trial,” he said, adding that Section 13 cannot impose a restriction on the courts.
Nazlan said it was for the court hearing an application for bail to make that determination with regard to the facts and circumstances of the case, in the exercise of the court’s discretionary power.
Saminathan, taxi driver V Balamurugan, dispatch rider S Teeran, and scrap metal dealer A Kalaimughilan were charged with knowingly giving support to the LTTE group on Facebook.
On Nov 1, Sessions Court judge Rozina Ayob allowed Saminathan’s application to refer to the High Court whether they can be offered bail despite being charged with possessing links to LTTE.
Another eight men were charged with similar offences before two other Sessions Court judges, with their lawyers raising the constitutionality of Section 13 as well.
Sangeet Kaur Deo, who represented Saminathan, told reporters she would make an application for Rozina to hear the bail consideration soon.