LETTER | The constitutionality of Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) has been challenged in a number of cases.

Section 13 (on bail) reads as follows:

(1) Bail shall not be granted to a person who has been charged with a security offence.

(2) Notwithstanding subsection (1) -

(a) A person below the age of 18 years;

(b) A woman; or

… charged with a security offence, other than an offence under Chapter VIa of the Penal Code and the Special Measures Against Terrorism in Foreign Countries Act 2015, may be released on bail subject to an application by the public prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code (CPC).

The constitutionality of Sosma’s Section 13 was argued at length in Saminathan a/l Ganesan v PP [2020] and Suresh Kumar a/I Velavuthan v PP [2022].

In Saminathan, High Court judge Nazlan Ghazali (as he then was) ruled that Section 13 - which absolutely prohibited the grant of bail to persons charged with security offences - was unconstitutional and ultra vires Article 121 of the Federal Constitution.

The learned judge ruled that the power to grant bail was a judicial power and that any prohibition of the exercise of judicial power by the legislature amounts to a usurpation of a judicial function.

The learned judge found Section 13 to be one such provision as it sought to limit the judicial power to grant bail to very limited circumstances as opposed to the wider spectrum offered by Section 388 of CPC.

In Suresh Kumar, High Court judge Collin Lawrence Sequerah (as he then was) embarked upon an examination of the foundation for the exercise of judicial powers in the context of bail provisions in Section 388 of the CPC and Section 13 of Sosma.

The learned judge ruled that Sosma was validly enacted pursuant to Article 149 of the Federal Constitution. Section 13 neither usurped judicial power nor did the provision offend the principle of equality enshrined in Article 8 of the Federal Constitution.

In a later case of Yanasegar a/l Vadivelu & Ors v PP [2022], judicial commissioner Narkunavathy Sundareson considered Sequerah’s judgment was well-reasoned and accordingly agreed with the latter.

The learned judicial commissioner therefore reaffirmed that Section 13 of Sosma is constitutional and does not infringe Articles 121 and 8 of the Federal Constitution.

As a decision on bail is not appealable due to Section 3 of the Courts of Judicature Act 1964, the issue of the constitutionality of Section 13 does not go further up the hierarchy of the courts.

In Samat bin Yamin v Public Prosecutor [2023], the accused took the ingenious steps of applying for bail to the Court of Appeal after his application to the High Court was dismissed and then to the Federal Court after the Court of Appeal too dismissed his application for bail.

In that case, the accused was charged under Sections 26A and 26D of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 (Atipsom) for the offences of smuggling migrants and profiting from that activity.

The offences are classified as security offences under the First Schedule of Sosma.

Accordingly, and pursuant to Section 13 of Sosma, the accused was denied bail and was detained in prison pending trial on those charges.

The accused’s applications for bail, first to the High Court and then to the Court of Appeal, failed. The accused pursued his application for bail to the Federal Court.

The application was premised on the following grounds, namely, that:

(a) Sections 26A and 26D of Atipsom did not fall within the ambit of Sosma;

(b) Section 13 of Sosma (concerning bail) was unconstitutional for contravening Articles 5, 8, and 121 of the Federal Constitution;

(c) The accused’s medical conditions (heart and kidney problems, high cholesterol, hypertension, gout, and osteoarthritis in the knee) plus his age (56 years) increased his chances of contracting Covid-19 infection if he continued to remain in prison;

(d) The accused was a first offender and there was no risk of his absconding; and

(e) The accused was the sole breadwinner in his family (his wife had passed away) and he had three children - aged 29, 23, and 12 years - and a two-year-old grandchild to care for (the grandchild’s father was remanded and charged together with the accused).

The accused’s main argument centred on the constitutionality of Section 13.

The accused, through his learned counsel Ramkarpal Singh - a former deputy minister in the Prime Minister’s Department (Law and Institutional Reforms) and fierce critic of Sosma - submitted that Section 13 breached the doctrine of proportionality as well as the principle of equality enshrined in Article 8 of the Federal Constitution because it was discriminatory.

In particular, the accused questioned why Section 13(2) treats a female suspect, as opposed to a male suspect, with leniency.

In reply, the learned senior deputy public prosecutor (SDPP) Dusuki Mokhtar (now attorney-general) submitted that there was no violation of Article 8 because intelligible criteria dictated that persons aged below 18 years, women, and those who were sick or infirm should be treated differently from others.

The learned SDPP referred to a report done by the Women, Human Rights and Gender Section of the Office of the High Commissioner for Human Rights, Rule of Law, Equality and Non-Discrimination branch of the United Nations and another report from a Justice Commission in Pakistan to support his submission that women were often subjected to a much greater variety of physical and mental abuse than men while they were under preventive detention.

The learned SDPP further submitted that the reason why Sosma denied bail was to prevent suspected offenders from absconding, removing or destroying evidence or intimidating or causing harm to potential witnesses.

A bench of three Federal Court judges (Vernon Ong, Zabariah Yusof and Rhodzariah Bujang) unanimously ruled, among others:

A discriminatory law is valid if it is based on a reasonable or permissible classification which is based on an intelligible differentia that has a nexus to the objective of the law itself.
The purpose of refusing bail is to ensure that those accused of crimes under Sosma are not given the opportunity to scuttle the investigations and the ensuing trial by absconding or interfering with the witnesses who would be called.
The proportionality test has been satisfied in that the harshness of denying bail to persons charged under Sosma is justified by its intention of ensuring national security, peace, and public order.
The accused’s contention that Sections 26A and 26D of Atipsom do not come within the ambit of Sosma has no merit as it is clear that the offences with which the accused is charged pose a threat to public order and national security. The legislative intent in listing Sections 26A and 26D under Part IIIA of Atipsom and then including Part IIIA in the First Schedule of Sosma is glaring. It is not open to the court to question Parliament’s wisdom in doing so.

Accordingly, the accused’s application for bail was dismissed.

Now, Home Minister Saifuddin Nasution Ismail in his ministerial statement in the Dewan Rakyat yesterday said that the government would review the list of offences in the First Schedule with a view to granting the court the discretion to allow bail.

But the courts have already been given the discretion under Section 13(2), albeit limited but similar to Section 388 of CPC, to allow bail. And given the apex court’s “endorsement” of security offences as specified in the First Schedule of Sosma - constituting no less than 72 offences - it is curious how the government would “review” the list of security offences.

The offences (offences against the state, offences relating to terrorism, organised crime, smuggling of migrants, and offences relating to the commission or support of terrorist acts involving listed terrorist organisations in a foreign country) are prima facie offences that pose a threat to national security, peace, and public order.

As the Federal Court has ruled, the proportionality test has been satisfied in that the harshness of Sosma in denying bail to persons charged under it is justified to ensure national security, peace, and public order.

We should however welcome the government’s consideration of establishing a special court as part of its review of Sosma. If the keeping of Sosma in force is justified, as Prime Minister Anwar Ibrahim reasoned, let its review be more focused on provisions that need “improvement”.

And let the improvement of those provisions, as Suara Rakyat Malaysia urges, not be further delayed.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.