PENDAKWARAYA Y.Bhg. Attorney General Tan Sri Tommy Thomas together with Pn. Aslinda Ahad, Pn. Rohaiza Abd. Rahman & Tn. Mohamad Nurzul b. Azuar Zulkifli Public Prosecutor [Attorney General’s Chambers] En. Ram Karpal Singh together with En.

PENDAKWARAYA Y.Bhg. Attorney General Tan Sri Tommy Thomas together with Pn. Aslinda Ahad, Pn. Rohaiza Abd. Rahman & Tn. Mohamad Nurzul b. Azuar Zulkifli Public Prosecutor [Attorney General’s Chambers] En. Ram Karpal Singh together with En.

Section 13 of SOSMA is constitutional and not ultra vires Articles 121(1) or 8 of the Federal Constitution because (a) SOSMA was validly enacted under Article 149 permitting restrictions directed at public order and security; (b) courts cannot exercise judicial power where Parliament has provided no statutory foundation for such exercise and Section 13 removes the substratum for bail in terrorism offences; and (c) the absolute prohibition on bail for terrorism offences is proportionate to the legitimate objective of preventing threats to public order and security. Consequently the bail application was dismissed.

Citation
CRIMINAL APPLICATION NO: WA-44-337-12/2019 (Mahkamah Tinggi)
Parties
Applicant/accused: Suresh Kumar a/l Velayuthan; Respondent: Public Prosecutor
Court
High Court
Jurisdiction
Malaysia
Judgment Date
14 February 2020
Case Number
CRIMINAL APPLICATION NO: WA-44-337-12/2019 (Mahkamah Tinggi)
Procedural Posture
Criminal / Bail Application Pending Trial
Outcome
Application dismissed; Section 13 SOSMA upheld as constitutional
Legal Topics
SOSMA S13, Bail, Article 121 Federal Constitution, Article 149 Federal Constitution, Proportionality, Presumption of Innocence, Unbailable Offences
Source Language
Malay/English
Terrorism Law Constitutional Law Criminal Procedure Judicial Review Separation of Powers SOSMA S13 Bail Article 121 Federal Constitution +4 more

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Parties

Suresh Kumar a/l Velayuthan

Applicant/accused

Public Prosecutor

Respondent

Procedural Posture

Criminal / Bail Application Pending Trial

Legal Issues

  1. 1 Whether Section 13 of SOSMA which absolutely prohibits bail for offences under Chapter VIA of the Penal Code is unconstitutional and ultra vires Article 121 FC
  2. 2 Whether the power to grant bail is a judicial power that cannot be taken away by Parliament
  3. 3 Whether a court may exercise judicial power where no statutory foundation/substratum for that exercise exists

Ratio Decidendi

Section 13 of SOSMA is constitutional and not ultra vires Articles 121(1) or 8 of the Federal Constitution because (a) SOSMA was validly enacted under Article 149 permitting restrictions directed at public order and security; (b) courts cannot exercise judicial power where Parliament has provided no statutory foundation for such exercise and Section 13 removes the substratum for bail in terrorism offences; and (c) the absolute prohibition on bail for terrorism offences is proportionate to the legitimate objective of preventing threats to public order and security. Consequently the bail application was dismissed.

Court Disposition

Application dismissed; Section 13 SOSMA upheld as constitutional

Orders

  • Bail application dismissed