KUALA LUMPUR, Dec 13 — Tan Sri Tommy Thomas has directed the Attorney General’s Chambers not to contest the High Court's decision that the denial of bail under the Security Offences (Special Measures) Act or Sosma was unconstitutional.
The AG appeared to agree with the court ruling that held Section 13 of Sosma, which prohibited the judiciary from even considering bail, to violate the separation of powers among the different branches of government.
“What the drafters of Sosma and the 2012 Parliament that enacted the law did not take into account was that the judicial function of the courts is eroded by virtue of Section 13.
“Consequently, judicial power is undermined,” Thomas said in a statement today.
The AG also noted recent developments in the legal arena that have upheld the supremacy of the Federal Constitution, such as the case of Hindu mother M. Indira Gandhi’s fight against the unilateral conversion of her children.
He also cited the Semenyih Jaya case in which it was held that the courts’ powers may not be usurped by any other party.
Thomas agreed with criticism that Sosma was similar to the repealed Internal Security Act, in that both did not respect the principle that a person is innocent until proven guilty.
On critics’ claim that allowing bail under Sosma would put the public at risk, Thomas explained that empowering the judiciary to consider bail did not mean that it would be automatically be granted.
Thomas said judges possessed the wisdom to determine when granting bail would not be in the public’s interest.
“For these reasons, in the exercise of my discretion, I have decided that the Public Prosecutor will not appeal against the recent decision of the High Court in holding Section 13 of Sosma unconstitutional.
“Our DPPs will deal with each bail application on its merits and the Court will be act as arbiter, as contemplated in the Federal Constitution,” he said.
In October, the High Court issued a landmark decision granting DAP assemblyman G. Saminathan approval to seek bail notwithstanding the invocation of Sosma for his detention.
Judge Mohd Nazlan Ghazali said Sosma provision barring the courts from considering bail was unconstitutional as it effectively allowed the executive to override the judiciary.
Saminathan was among 12 people including Seremban Jaya assemblyman P. Gunasekaran who were detained using Sosma and charged over alleged links to the Liberation Tigers of Tamil Eelam.
The previous Barisan Nasional government enacted Sosma after repealing the ISA, and resurrected the latter’s powers of detention without trial.
Sosma was among security laws the Pakatan Harapan coalition had suggested it would repeal while campaigning in the 14th general election but which it now says would simply be reviewed.