Attorney-General Tommy Thomas said his deputy public prosecutors (DPPs) would deal with each bail application on its merits and the court would act as arbiter, as contemplated in the Federal Constitution.
On Nov 29, High Court judge Mohd Nazlan Mohd Ghazali ruled that judges can consider bail applications even if the accused is charged with a terrorism-related offence.
He 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.
In a statement today, Thomas said Parliament and those who drafted Sosma did not take into account that the judicial function of the courts is eroded by virtue of Section 13 in that law.
He said the constitutional law has made substantial advances since Sosma was enacted, and the Federal Court decisions in Indira Gandhi in 2016 and Semenyih Jaya in 2017 accepted the basic structure doctrine.
More significant, he said, is the fundamental entrenched principle of highest importance, namely the constitutional duty of the courts to judicially decide disputes, including contested bail applications.
He said Nazlan recognised the principles in the basic structure doctrine that were developed in the Indira Gandhi and Semenyih Jaya cases when holding Section 13 of Sosma as unconstitutional because that provision closes the door to judicial application for bail.
“Thus, access to justice is denied to all accused under Sosma between being charged and their final appeal before the Federal Court. In my opinion, any appeal against the decision of the High Court is doomed to fail,” he said.
Thomas said the practical effect of Section 13 of Sosma is that because an accused cannot apply for bail from the time he is charged until his trial, he is effectively under preventive detention without recourse to court.
He said concerns have been expressed on whether a court would grant bail to a Sosma accused who is building a bomb and intends to use it to kill innocent members of the public.
“In such a case, Malaysians should be assured that once our DPPs inform the court with some credible evidence that a bail applicant is planning such dastardly and violent acts, bail will be refused.
“No judge will be irresponsible to place public safety in jeopardy. Ultimately, we must trust the judges to decide in each case when a bail application is made,” he said.