In Blow to Sosma, High Court Allows DAP Rep Detained over LTTE Links to Apply for Bail

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The High Court today allowed Gadek assemblyman G Saminathan to apply for bail over a probe into his alleged involvement with terror group, Liberation Tigers of Tamil Eelam (LTTE).

This comes after Judge Mohd Nazlan Mohd Ghazali ruled that Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) was ultra vires to Articles 8 and 121 of the Federal Constitution.

Section 13 of Sosma stated that the court was prohibited from considering the granting of bail to a person charged for an offence under Chapter 6A of the Penal Code.

Nazlan in his judgement said the judicial powers or the power to adjudicate in civil or criminal matters brought to the Courts were exclusive of the courts.

“Judicial power is central to the doctrine of the separation of powers between the Executive, the Legislature and the Judiciary which is a fundamental feature in the basic structure of the Constitution.

“Any usurpation of the judicial power by any other arm of the government infringes the sanctity of the doctrine of the separation of powers, violates the basic structure of the Constitution, and is therefore unconstitutional.

“Thus, Section 13 of Sosma is unconstitutional because it divests from the courts the judicial discretionary power to evaluate whether or not to grant or refuse bail applications,” he said.

However, he said the division does not mean that the applicant herein must or should, therefore, be granted bail.

“In assessing whether to grant bail, the court will exercise their discretion judiciously, having regard to relevant considerations such as the nature and gravity of the offence, the severity of the punishment, the risk of the accused absconding, the danger of the offence being continued or repeated and the danger of the witnesses being tampered with, as well as the character, means and standing of the accused,” he said.

Clad in a grey shirt, Saminathan, 34, could not hold back tears upon hearing the judgement and hugged his wife as soon as the proceedings ended.

Aizuddin Saad

Several prominent politicians, including DAP stalwart Lim Kit Siang and Klang member of parliament Charles Santiago, were also present at the court to show support.

Zunnur Al Shafiq

Meanwhile, Sangeet Kaur Deo, who represented the applicant, when met after the proceeding said they would apply bail for Saminathan at the Sessions Court next week.

The landmark decision will also benefit the others still detained using the preventive detention law despite already being charged with supporting or possessing material related to the defunct Sri Lankan terrorist group.