KUALA LUMPUR, Nov 29 (Bernama) -- Melaka's Gadek state assemblyman G. Saminathan, who has been charged with supporting and possessing items related to the LTTE terror group, can now apply for bail.
This is after the High Court today ruled that Section 13 of the Security Offences (Special Measures) Act 2012 (SOSMA) is unconstitutional.
Saminathan, 34, has been remanded at the Sungai Buloh prison under SOSMA which denies bail pending trial.
Judge Mohd Nazlan Mohd Ghazali, in his judgment, said that 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.
"I must emphasise that this decision does not at all mean that the applicant herein must or should therefore be granted bail. This ruling merely reaffirms that the power to grant bail, being a judicial power, cannot be restricted or prohibited, contrary to Article 121(1) of the Federal Constitution," he said.
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Justice Mohd Nazlan said Section 13 of SOSMA stated that the court is absolutely prohibited from considering the granting of bail to a person charged with offences relating to terror under Chapter VIA of the Penal Code because this usurpation or removal of the power of the courts to consider bail is contrary to the doctrine of the separation of powers.
The judge further said it is fairly well established that the power to grant or deny bail is inherently vested in the courts.
"This is also well in accord with the presumption of innocence and the objective of bail which is to ensure the attendance of an accused at trial," he said.
Justice Mohd Nazlan also said judicial power or the power to adjudicate in civil or criminal matters brought to the courts are 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.
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“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," he said.
Saminathan, wearing a grey T-shirt, could not hold back his tears in the dock and hugged his wife as soon as the proceedings ended.
Present were several prominent politicians including DAP veteran leader Lim Kit Siang and Klang MP Charles Santiago.
On Nov 1, Sessions Court Judge Rozina Ayob ruled that there was merit in the application made by the defence under section 13(2) of SOSMA to refer constitutional matters concerning bail to the High Court.
The court then allowed the applications of Saminathan and 11 other men to refer constitutional issues on bail to the High Court.
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Besides Saminathan, the others are Seremban Jaya assemblyman P. Gunasekaran, 60; taxi driver V. Balamurugan, 37; postman, S. Teeran, 38; scrap metal trader A. Kalaimughilan, 28; a chief executive officer of a corporation, S. Chandru, 38; technician S. Arivainthan, 27; storekeeper S.Thanagaraj, 26; security guard M. Pumugan, 29; national secondary school teacher in Telok Panglima Garang, Selangor, Sundram Renggan @ Rengasamy, 52; DAP member V. Suresh Kumar, 43, and businessman B. Subramaniam, 57.
They were charged in separate Sessions Courts here and several states on Oct 29 and 31 with allegedly having links with LTTE.
Meanwhile, Sangeet Kaur Deo when met after the proceedings said she would apply for bail for Saminathan at the Sessions Court next week.
Deputy Public Prosecutor Azlina Rasdi said the prosecution will await instructions from the Attorney-General's Chambers on whether to appeal the court decision.