.
Section 13(1) of the
Act, as we understand it, imposes a ban on any person who has committed what is
termed a “security offence” from applying from bail. The justification offered
by the court is that bail traditionally comes within the remit of the courts
and Parliament by enacting the provision has “interfered” with this traditional
remit to decide on bail and this violates the principle of separation of
powers, which the court, in turn, declared to be part of the “basic structure” of
our constitution.
.
This argument is wrong
on so many levels. First of all, it must be understood that SOSMA is not
ordinary legislation but was enacted under Article 149 of the Federal
Constitution. The Article confers special licence on laws enacted to deal with
subversive threats facing us as a nation, terrorism and other security offences
within SOSMA included, so in actual fact, there is constitutional sanction for
SOSMA in the name of the need to tackle subversion and terrorism in all their
forms, per the said Article 149 of the Constitution, including for the
particular section denying bail to those accused of a security offence.
.
One must appreciate
that matters of national security are generally considered to be within the
purview of the executive and legislative branches of government, and this
principle is recognised not just in Malaysia, but other countries as well. In
the British case of The Zamora [1916] 2 AC 77 the learned judge, Lord
Parker was quoted as saying that:-
“Those who are
responsible for the national security must be the sole judges of what the
national security requires. It would be obviously undesirable that such matters
should be made the subject of evidence in a court of law or otherwise discussed
in public,”
.
The above passage was
quoted with approval in a later British case CCSU v Minister for the Civil
Service [1985] AC 374 wherein it was said further that the decision on
whether the requirements of national security outweigh the duty of fairness in
any particular case is for the Government and not for the courts because the
Government alone has access to the necessary information and in any event the
judicial process is unsuitable for reaching decisions on national security.
.
It is axiomatic that
SOSMA, like its predecessor, the Internal Security Act 1960 (“ISA”) is a
preventive law and the denial of bail for those who would otherwise commit
security offences is appropriate given the gravity of the offence for which
they are charged and the probability of those involved committing dangerous
subversive acts. It is this that the learned judge deciding at the high court has
failed to appreciate, and must thus be corrected by our superior courts on
appeal.
.
Our second objection
stems from the court’s worrying decision to continue and countenance the new
judicial trend, stemming from the 2017 Semenyih Jaya case and the 2018 Indira
Gandhi case, to legitimise the basic structure doctrine, an alien legal
doctrine imported from India pertaining solely to the Indian constitution with
no basis whatsoever in our constitutional law.
.
It must be noted that
the basic structure doctrine was first developed by Justice Hans Raj Khanna in
the 1973 case Kesavananda Bharati v. State of Kerala and has been
consistently rejected by our courts prior to the 2017 Semenyih Jaya case, as
the late Raja Azlan Shah who was a federal court judge decided in the case of Loh
Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187 stated, when
referring to this alien doctrine that:-
“Whatever maybe
said of other Constitutions, they are ultimately of little assistance to us
because our Constitution now stands in its own right and it is in the end the
wording of our Constitution itself that is to be interpreted and applied, and
this wording ‘can never be overridden by the extraneous principles of other
Constitutions,”
His Lordship then
affirmed the absolute prerogative of our Parliament to amend our Constitution
as it sees fit, per the procedure laid down in Article 159 of our Constitution.
This point has been often repeated, of late by our former Chief Justice, Tun
Abdul Hamid Mohamad in his article, Not for judges to rewrite the constitution, (New Straits
Times, 14 June 2017).
.
Parliament had indeed
amended our Constitution in 1988 to substitute Article 121(1) of our
Constitution with our present one which reads that the powers of our courts
“maybe conferred by or under federal law”. This was correctly interpreted by
Abdul Hamid Mohamad, the then President of the Court of Appeal, in the 2008 case
of Public Prosecutor v Kok Wah Kuan when he said therein that:-
“If we want to know
the jurisdiction and powers of the two High Courts we will have to look at the
federal law. If we want to call those powers ‘judicial powers’, we are
perfectly entitled to. But, to what extent such ‘judicial powers’ are vested in
the two High Courts depend on what federal law provides, not on the
interpretation the term ‘judicial power’ as prior to the amendment.”
.
The above correctly
decided cases were either overlooked intentionally or unintentionally by the
2017 Semenyih Jaya and 2018 Indira Gandhi cases, on which this alien doctrine
of basic structure now derives its legitimacy. This doctrine must be stopped in
its tracks for it will open the door for judges to make law by declaring
statutes unconstitutional by reference to it, thus usurping law-making powers
reserved exclusively for Parliament.
.
We accordingly condemn
the Attorney-General for refusing to appeal the deeply flawed decision reached
by the high court in the SOSMA bail case and accordingly, call upon him to
initiate appeal before our superior courts regarding the same immediately.
.
* The above
statement was issued by Faidhur Rahman Abdul Hadi, Chief Executive of the Young
Professionals (YP), a civil society organisation representing professionals who
uphold the Federal Constitution.
.
.
Source: Young
Professionals – 14 December 2019
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