KUALA LUMPUR: The High Court has allowed Gadek assemblyman G. Saminathan (pic), who is currently detained for alleged links to the Liberation Tigers of Tamil Eelam (LTTE), to apply for bail.
The 34-year-old could not contain his tears when he heard the ruling and hugged his wife after the proceedings ended.
In his decision, Justice Mohd Nazlan Mohd Ghazali ruled that Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) goes against Articles 8 and 121 of the Federal Constitution.
He said that the power to hear and judge civil or criminal matters is 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.
"Any usurpation of the 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," said Mohd Nazlan.
He added on Friday (Nov 29) that Section 13 of Sosma is unconstitutional because it divests the judicial discretionary power to evaluate whether or not to grant or refuse bail applications from the courts.
Mohd Nazlan added that when assessing whether to grant bail, the courts will consider the nature and gravity of the offence as well as the risk that the accused will abscond, the danger of the offence being repeated or witnesses being tampered with.
He also said that the courts will consider the character, means and standing of the accused before granting bail.
Under Section 13 of Sosma, the courts are prohibited from considering the granting of bail to a person charged for an offence under Section 6A of the Penal Code.
When met by reporters, Saminathan's lawyer Sangeet Kaur Deo said they would apply for bail at the Sessions Court next week.
DAP stalwart Lim Kit Siang and Klang MP Charles Santiago were present at the court to show support to the applicant.
On Nov 1, Sessions Court Judge Rozina Ayob ruled that there was merit in the application made by the defence under Section 13(2) of Sosma to refer constitutional matters concerning bail to the High Court.
The court allowed the applications of Saminathan and 11 other men to refer constitutional issues on bail to the High Court.
The 11 are Seremban Jaya assemblyman P. Gunasekaran, 60; taxi driver V. Balamurugan, 37; postman, S. Teeran, 38; scrap metal trader A. Kalaimughilan, 28; a chief executive officer of a corporation, S. Chandru, 38; technician S. Arivainthan, 27; storekeeper S.Thanagaraj, 26; security guard M. Pumugan, 29; a national secondary school teacher in Telok Panglima Garang, Selangor, Sundram Renggan @ Rengasamy, 52; DAP member V. Suresh Kumar, 43, and businessman B. Subramaniam, 57.
They were charged at separate Sessions Courts here and in several states on Oct 29 and 31 with allegedly having links with LTTE.