R Nathan, 45, claimed that the charge against him framed under Section 124K of the Penal Code was not a security offence under the ambit of the Security Offences (Special Measures) Act 2012.

“The trial court has the discretionary and statutory powers to allow him to be released on bail under Section 388(1) of the Criminal Procedure Code,” his lawyer, T Harpal Singh, submitted before judicial commissioner Azhar Abdul Hamid today.

Harpal said that early last year, another High Court judge here also ruled that Sosma could not oust a judge’s jurisdiction to hear and consider bail applications as the court had the inherent power to do so.

He also cited a 2016 Court of Appeal ruling by a three-member bench which declared that the offence of sabotaging the nation’s banking and financial services was not a security offence under Section 124L of the Penal Code.

Harpal said the bench then allowed 1MDB critics Khairuddin Abu Hassan and his lawyer, Matthias Chang, to be freed on bail pending the outcome of their case.

He said Nathan’s detention for investigation last year under Sosma for 28 days was also unlawful.

“A police officer’s power to detain a suspect under Sosma had lapsed on July 31, 2017, as a resolution passed by Parliament was not gazetted by the home minister,” he said.

He said Section 4(11) of Sosma states that subsection (5) shall be reviewed every five years and shall cease to have effect unless a resolution is passed by both Houses of Parliament to extend the provision’s period of operation.

Sosma, a procedural law, was enacted to deal with terrorism and security offence cases and came into force on June 22, 2012.

Deputy public prosecutor Ashyraf Ashyari Kamaruzaman submitted that the charge faced by Nathan was a security offence and the police and prosecution were correct to use Sosma.

He said Nathan also did not fall within the exception under Section 13 (2) of Sosma to be given bail.

That provision states bail could be offered to a detainee who was less than 18 years of age, a woman, or if one was sick or infirmed.

“Nathan is a 44 year male and there is no evidence he is unhealthy or needs medical attention,” he said.

Ashyraf conceded that the Federal Court last year allowed a former property agent to be freed on bail pending the outcome of his charge for human trafficking, said to be a security offence.

A three-member bench chaired by Chief Justice Tengku Maimun Tuan Mat allowed Koh Chin Wah to be freed on condition that he post a RM20,000 bail with one surety.

The bench had used Section 388 of the CPC to grant Koh bail.

However, Ashyarf submitted the precedent could not be relied on in this case as a written judgment had yet to be delivered.

He also said a specific law like Sosma took precedent over a general law like the CPC.

Ashyarf said the power to offer bail was not exclusively in the hands of the judiciary but also in the hands of the executive like the police.

The court will deliver its ruling on May 31.

In November, Nathan and company director, Lim Kian Aik, 42, claimed trial for intentionally committing sabotage to disrupt water services in Selangor at Taman Velox, Rawang.

The Court of Appeal, in a 2-1 verdict last month, allowed Lim bail and he was asked to post RM50,000 as he was confirmed to be suffering from acute coronary syndrome.

A medical officer from the Sungai Buloh Prison clinic was of the opinion that he was at high risk of suffering a heart attack.

Lim and Nathan will be tried before Azhar for the Penal Code offence but a trial date has yet to be fixed.

Both men are facing five other charges under the Environmental Quality Act 1974 and the Water Service Industry Act 2006 in the sessions court.

Nathan has also pleaded not guilty before a magistrate for conducting business activities without a licence issued by licensing authorities.