Allow the High Court ruling on children born overseas to take its next legal course — Hafiz Hassan

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SEPTEMBER 17 — In Saminathan a/l Ganesan v Public Prosecutor [2020], High Court Judge Mohd Najlan held that Section 13 of the Security Offences (Special Measures) Act 2012 (SOSMA) was unconstitutional for infringing Article 121 of the Federal Constitution because it removed from the courts the power to consider bail in cases of offences relating to terrorism under the Penal Code.

Then Attorney-General (AG) Tan Sri Tommy Thomas was said to have issued a statement that the Attorney-General’s Chambers would not appeal against Judge Mohd Nazlan’s decision.

“This means that it is the stand of the Attorney-General that Section 13 of Sosma is unconstitutional. The prosecution will conduct each application for bail based on merit according to the Federal Constitution,” Deputy Public Prosecutor Mohd Saifuddin Hashim Musaimi reportedly informed a High Court Judge in a later case. 

A month later in Suresh Kumar a/l Velayuthan v Public Prosecutor, High Court Judge Collin Sequerah held that the provision in Section 13 of the SOSMA that absolutely prohibits bail for persons charged with an offence under Chapter VIA of the Penal Code which relates to terrorism is Constitutional and not ultra vires Article 121(1) or Article 8 of the Constitution.

The learned judge held that it was the clear and manifest intention of Parliament that the bail provision in Section 13 Sosma was meant to prevail over the more general provisions of bail in Section 388 the Criminal Procedure Code (CPC). The maxim generalia specialibus non derogant, which means that a general legislation — which the CPC is – is made subject to a specific legislation – Sosma – applies. It follows therefore that it is Section 13 Sosma that is applicable to offences under it and not the provisions of the CPC when it comes to bail.

Judge Colin Sequerah decided so despite the AG, who appeared in the said matter, had indicated that the prosecution was not objecting to the application for bail. This meant that both parties i.e. the High Court in Saminathan and the AG adopted a common stand that Section 13 Sosma was unconstitutional.

So, two different High Court decisions on the same matter – Section 13 Sosma. But the upshot is one High Court judge is not bound by the decision of another High Court judge. Both judges sit in a superior court whose jurisdiction is co-ordinate.

An appeal to the apex court — if the matter takes such a course of action — will give finality to the ruling — importantly a binding decision like the decision of the Federal Court on the constitutionality of the National Security Council Act 2016, albeit by a majority. — Picture by Yusof Mat Isa
An appeal to the apex court — if the matter takes such a course of action — will give finality to the ruling — importantly a binding decision like the decision of the Federal Court on the constitutionality of the National Security Council Act 2016, albeit by a majority. — Picture by Yusof Mat Isa

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 AG Tommy Thomas had appealed against Justice Nazlan’s decision, a higher court would have decided on the matter. So too if the decision of Justice Akhtar is appealed against.

In its narrowest form, an appeal allows the parties to an earlier decision to have the matter decided anew. It is an obvious way in which the decision may be reviewed for errors in law.

The court hearing an appeal will correct errors by, or affirm the decision of, the lower court judge. This lends the appellate court decision a binding precedent on the lower courts.

An appeal is also the most obvious way in which individual judges are accountable for their decisions. That is why it is said that an appeal serves two distinct (but overlapping) functions, one private and one public. These were first noted by the Roman legal scholar Justinian.

The private function is to provide accountability to the individual litigants. The public function is that enabling errors to be corrected maintains and enhances the confidence of citizens in the justice system. 

Another aspect of the public function is that the appeal court can provide guidance for future cases and thus facilitate certainty. In these ways the right of appeal furthers the rule of law. 

So, many may agree with rights groups that the government should just accept, and not appeal against, the High Court ruling that children born overseas to Malaysian mothers are entitled to citizenship by operation of law. 

But the government may have something to be aggrieved with the decision. An appeal allows the matter to be decided anew. An appeal to the apex court — if the matter takes such a course of action — will give finality to the ruling — importantly a binding decision like the decision of the Federal Court on the constitutionality of the National Security Council Act 2016, albeit by a majority. 

In any case, a notice of appeal can be withdrawn after the full written grounds of judgment are made available to the parties as part of the appeal process. Legal sense may prevail when the written grounds of judgment are made available by the High Court judge.

So, let’s allow the matter to take its next legal course.

*This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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