AG will not appeal High Court decision declaring Sosma unconstitutional

PETALING JAYA: Attorney General Tan Sri Tommy Thomas (pic) will not appeal the High Court decision declaring Section 13 of Security Offences (Special Measures) Act 2012 (Sosma) as unconstitutional.

He said the most pernicious feature of Sosma was the absolute prohibition of bail stipulated in Section 13, which removes the power of a Court to hear and determine a bail application.

"The issue is whether such removal affects judicial power, which under the Federal Constitution vests solely and exclusively in the Judiciary," he said.

High Court Judge Mohd Nazlan Mohd Ghazali had recently ruled that Section 13 of Sosma was ultra vires to Article 8 and 121 of the Federal Constitution.

In the case, he allowed Gadek assemblyman G. Saminathan to apply for bail over his detention for alleged links to the Liberation Tigers of Tamil Eelam.

Tommy said those who drafted Sosma and the 2012 Parliament that passed it did not take into account that Section 13 eroded the judicial function of the Courts and undermined judicial power.

"Justice Nazlan recognised the principles in the basic structure doctrine and developed in the Indira Gandhi and Semenyih Jaya cases, when holding Section 13 of the Sosma Act as unconstitutional because that section closes the door to judicial application for bail.

"Thus, access to justice is denied to all accused under Sosma between their charging and their final appeal before the Federal Court," he said, adding that this could take as long as 12 months.

"He is effectively under preventive detention without recourse to court – a fate similar to those who were detained under the Internal Security Act.

Tommy also opined that any appeal against the decision of the High Court is "doomed to fail".

"The ISA was severely criticised for decades prior to its repeal in 2012. This is particularly unacceptable because of the fundamental principles underpinning criminal jurisprudence that an accused is innocent until found guilty by a court," he said.

Tommy said that deputy public prosecutors would now deal with each bail application on its merits and the Court will act as an arbiter, as contemplated in the Federal Constitution.

"Ultimately, we must trust the judges to decide in each case ... whether to grant or refuse it (bail).

"In cases where bail is granted, the police or the DPP may ask whether to impose any conditions, including the accused being restricted at his home, wearing a monitoring device, reporting daily to the police or any other conditions," he said.