I commend Attorney-General Tommy Thomas for standing up not to approve of additional charges against those detained for alleged LTTE links, and in not appealing against Rafizi Ramli’s acquittal and, most importantly, the decision of High Court judge Mohd Nazlan Mohd Ghazali in allowing for the appeal of Gadek assemblyman G Saminathan, a suspect in the LTTE arrests.
The landmark decision by the High Court judge that the power to grant or not to grant an appeal cannot be snatched from the judiciary by the executive provides fresh hope for those detained under the Security Offences (Special Measures) Act of 2012 or Sosma.
If the executive is allowed to exercise its jurisdiction on the matter of the appeal, it would make a mockery of the system of checks and balances enshrined in the constitution.
It was certainly a bold decision by the High Court judge in giving credence to the fact that judges in the country are not mere pushovers but are expected to perform the role of guardians of the constitution.
The supreme role of the courts is to ensure the constitution is respected and protected. Any legislation that contravenes the system of checks and balances is considered ultra vires the constitution.
Sosma might have replaced the Internal Security Act but it is nonetheless a draconian legislation that provides a lengthy remand period until such time the cases are finally disposed of.
This might take months or even years. Whether those charged are guilty or not, they are kept in remand for a long period. It is a stain on the justice system to keep those arrested who might be innocent incarcerated under the guise of remand.
I am not sure how Sosma is any different from the ISA it replaced. It is not up to the executive to decide whether those detained have the right to appeal or not. This is the jurisdiction of the courts in the country, something that cannot be snatched on the basis of a legislation or the threat to national security.
Judges have been silent too long, resulting in serious human rights abuses such as long periods of remand, convictions based on insufficient evidence, and long periods of incarceration.
Some might even say that the courts might have abdicated their constitutional role if they had sidestepped the matter of executive usurpation on matters of judicial prerogative.
The executive has taken the country on a long ride with legislations that are undemocratic and against human rights. The sooner the judges have the courage to strike down unfair legislations and practices, the better it is for the society.
I am not sure of the position of Thomas when the charges against the 12 were sent to him. But he apparently cleared or approved them. Maybe the “deep state” was responsible for moving the charges. While his role in consenting to the charges against the 12 detainees remains shrouded in mystery, perhaps the time has arrived for him to now set them on the path to freedom.
The court judgment allowing them the appeal against their detention and the noble intention of Thomas not to appeal this matter will go a long way in ensuring justice for those detained under Sosma.
The ultimate abrogation of Sosma or the obnoxious parts of it will have to wait for the next session of the parliament. If not, the PH government must pay the political cost for side-stepping an important component of its election manifesto.
P Ramasamy is a DAP central executive committee member and Penang deputy chief minister II
The views expressed are those of the author and do not necessarily reflect those of FMT.