KUALA LUMPUR, Oct 29 — Both Seremban Jaya assemblyman P. Gunasekaran and Gadek assemblyman G. Saminathan who were charged with terrorism related offence at the Sessions Court today will be able to retain their positions as elected representatives as stipulated under the Federal Constitution.
Section 6(1)(e) of the Federal Constitution's Eighth Schedule states that the membership of the Legislative Assembly is automatically disqualified when the person is sentenced to a minimum of 12 months’ jail; or fined not less than RM2,000.
Election Commission chairman Datuk Azhar Azizan Harun said on October 15 that an assemblyman or MP can only be dismissed from his post if he is charged, tried, found guilty, sentenced in court, and if there is an appeal, wait for the whole judicial process to complete.
Human rights lawyer New Sin Yew also confirmed the matter but pointed out that there was still a possibility both assemblymen may be disqualified due to their absence in state assembly meetings.
“If they are absent for a number of sittings, their seat could be declared vacant unless they obtain leave of the assembly.
“This will be likely when they are charged with offences against the state under Part VI of the Penal Code or offences relating to terrorism under Part VIA of the Penal Code where bail is not available,” he told Malay Mail when contacted.
Both Gunasekaran, 60, and Saminathan, 34, were charged in the Sessions Court in Melaka earlier today with supporting a now defunct Sri Lankan terror group, the Liberation Tigers of Tamil Eelam (LTTE).
They were accused of committing the offence during an event at the Dewan Kasturi Ayer Keroh, on Jalan Utama, Taman Ayer Keroh Heights in Melaka on November 28 last year between 8.30pm and 10.50pm.
If found guilty, they can be sentenced to jail for life or a maximum 30 years, or a fine and can have any of their properties used in the offence confiscated.
They were denied bail as Security Offences (Special Measures) Act provisions were used against them and will continue to remain in lockup until their next court mention in December.
It remains to be seen whether both assemblymen would be able to obtain leave from the state assembly pending the conclusion of their trial.
Meanwhile the habeas corpus application for both Gunasekaran and Saminathan scheduled for hearing at the High Court on October 31 may also be dismissed as the case is already moot with charges filed against them.
“If a Sosma detainee is subsequently charged before the application is heard, the most likely outcome is that the application will be dismissed because the accused would be detained pending trial, which is lawful,” New said.
A habeas corpus is a recourse in law through which a person can report an unlawful detention or imprisonment to a court and request that the court to determine whether the detention is lawful.
According to New, the application will be rendered academic as the two accused — Gunasekaran and Saminathan — were detained pending trial which was lawful.
But he also said the court has the discretion to proceed with the habeas corpus hearing despite the charging.
“If the case is of sufficient public interest, the court may nevertheless proceed to hear the application and decide on important issues of public interest.
“For example, if the detention did not comply with procedures or that Sosma was used wrongfully,” he explained.