SECTION 13 of the Security Offences (Special Measures) Act (Sosma), which denies bail to those charged with terrorism-related offences is constitutional, ruled a high court today.

The ruling contradicts an earlier ruling by another high court in November that said the section was unconstitutional.

This morning, justice Mohamed Zaini Mazlan of the Kuala Lumpur High Court said that particular section was constitutional and denied bail to businessman B. Subramaniam who was arrested and charged with terror-linked activities.

“I disagree that Section 13 of Sosma to detain the accused is unconstitutional,” said the judge in an oral judgment.

Subramaniam, 57, is charged with supporting Liberation Tigers of Tamil Eelam (LTTE) through social media under the username of UsSubra Subramaniam.

On November 29, another high court judge, Mohd Nazlan Mohd Ghazali, in another bail application by another person detained for alleged links with LTTE, ruled Section 13 as unconstitutional.

Nazlan said courts could consider bail applications as the judiciary, being an independent arm of the government, existed to check any excess by the legislature and executive.

“The principle of separation of powers is a hallmark of a modern state,” he said in allowing the constitutional challenge brought by Malacca executive councillor G. Saminathan.

The judge said it’s 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.

“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.”

On December 13, Attorney-General Tommy Thomas said in a statement he was not appealing Nazlan’s decision as Parliament and those who drafted Sosma did not take into account the judicial function of the courts.

Subramaniam’s lawyer S. Selvam said he would file a motion in the Court of Appeal today to obtain bail and also appeal against Zaini’s ruling.

Aslinda Ahad and Rohzaiza Abd Rahman appeared for the prosecution. – February 10, 2020.