Judgment clarifies inherent judicial power of Malaysia’s courts


THE Malaysian Bar welcomes the courageous decision of the Federal Court to release on bail a person charged with a security offence under the Security Offences (Special Measures) Act 2012 (Sosma).

We deem that this landmark ruling by the highest court of the land brings to a definitive end the question of the constitutionality of Section 13 of Sosma in relation to the rights of an accused person to be granted bail. The three-person Federal Court bench had decided to instead utilise section 388 of the Criminal Procedure Code to permit bail.

The judgment clarifies the inherent judicial power of the courts and restores the independence of the judiciary that acts as a gatekeeper against any encroachment on human rights and the rule of law. This decision carries the same impact as that of the 2017 Semenyih Jaya case which effectively restored judicial power in land acquisition cases. The case had revisited Article 121(1) of the Federal Constitution and declared that Article 121 empowers the High Court with judicial power when it comes to the determination of compensation in land acquisition matters.

Similarly, in the current case of the person charged under Sosma, the Federal Court has reaffirmed the doctrine of judicial independence and the separation of powers in Malaysia – all the hallmarks that are necessary in a democratic system of governance.

We are of the view that Section 13 of Sosma (which provides that bail shall not be granted to a person who has been charged with a security offence, from the time of arrest until trial) is repugnant to the rule of law and natural justice, and believe that no one should be incarcerated until his/her guilt is proven in a court of law. It is also incompatible with Article 121 of the Federal Constitution.

The Malaysian Bar renews its call to the government to abolish Sosma as well as other outdated and draconian laws so that we can safeguard the welfare of the rakyat.

SALIM BASHIR

President, Malaysian Bar

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