RAMKARPAL Singh (Pakatan Harapan-Bukit Gelugor) has rightly said that the High Court ruling, which struck out discriminatory practices against Malaysian mothers with overseas-born children, is not binding on other High Courts of concurrent jurisdictions, “Bipartisan support sought for constitutional amendment over citizenship issue” (The Star, Sept 21; online at https://bit.ly/3ECYXP3).
The contrasting High Court decisions pertaining to Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) illustrate this point well.
In Saminathan a/l Ganesan v Public Prosecutor (2020), High Court Judge Mohd Nazlan Mohd Ghazali held that Section 13 of the Security Offences (Special Measures) Act 2012 was unconstitutional for infringing Article 121 of the Federal Constitution because it removed from the courts the power to consider bail.
Ramkarpal led a team of nine lawyers in that case, which came about by way of a criminal reference by the Sessions Court to the High Court pursuant to Section 30 of the Courts of Judicature Act 1964 on the constitutionality of Section 13 of Sosma.
A month later, in Suresh Kumar a/l Velayuthan v Public Prosecutor, Ramkarpal appeared before High Court Judge Datuk Collin Sequerah and argued on the authority of Saminathan that since the power to grant bail was a judicial power, the Legislature (Parliament) could not enact to prevent the court from exercising its discretion to grant bail. Curiously, the prosecution agreed with the argument that Section 13 of Sosma was unconstitutional but argued that the accused in the case should be denied bail based on the merits of his application.
Despite the two opposing counsels adopting a common stand, the High Court judge was not to be moved. The learned judge held that it was the clear and manifest intention of Parliament that the bail provision in Section 13 of Sosma was meant to prevail over the more general provisions of bail in Section 388 of the Criminal Procedure Code (CPC).
Less than a month later in Md Nasir Uddin v Public Prosecutor, Judicial Commissioner Nurulhuda Nur’aini ruled that the High Court was not bound by the decision in Saminathan and held that Section 13 of Sosma was constitutional.
Much as we applaud the decision of High Court Judge Akhtar Tahir, who ruled that children born overseas to Malaysian mothers are entitled to citizenship by operation of law, another High Court judge may decide differently.
If then Attorney General Tan Sri Tommy Thomas had appealed against Justice Nazlan’s decision, a higher court – Court of Appeal – would have decided on the matter. That decision would have been binding unless appealed against to the Federal Court whose decision would be the final binding decision on the matter.
One therefore has to appreciate the functions of appeal in a legal system.
It is simplistic to say that an appeal against the decision of Justice Akhtar Tahir would further discriminate against women and it should not have been filed in the first place.
If the Attorney General does not appeal the decision of the learned judge or he withdraws the appeal, then, as Ramkarpal said, the government should look into amending the “ambiguous” provisions in the Federal Constitution because another High Court judge may decide differently in the future.