(Nov 3): The Federal Court today ordered the High Court to decide whether the charge faced by former Umno leader Datuk Seri Khairuddin Abu Hassan and his lawyer Matthias Chang for sabotaging the Malaysian economy was a security offence.

A five-man bench led by Chief Justice Tun Arifin Zakaria also referred the issue of bail for the duo back to the High Court for it to decide.

He said this after allowing a preliminary objection by the prosecution that the reference application by the High Court was defective, as no constitutional issues were involved.

In sending the case back to the High Court, Arifin said only cases which dealt with constitutional issues should be be referred to the Federal Court, citing Section 84 of the Courts of Judicature Act 1964.

The bench also declined to offer interim bail pending the outcome of the High Court proceedings.
 
"We are constrained to give bail as it will be seen as prejudging the issue," Arifin said.

He said the High Court should hear the matter expeditiously since the liberty of the two was affected.

"The Court of Appeal should also hear the matter on an urgent basis should the prosecution or the defence appeal against the High Court ruling," he added.

Khairuddin and Chang have been under police detention and in prison for more than a month.

Lawyer Haniff Khatri Abdulla, who represents Khairuddin, said the High Court would hear if the charge was a security offence on Thursday.

Earlier, deputy public prosecutor Awang Armadajaya Awang said the bench should not hear the application because no constitutional issues had been raised.

"Their complaint is that the charge is groundless but that is based on the law, not the constitution," he said.

He said the defence should have used the Criminal Procedure Code to strike out the charge.

Awang Armadajaya, who urged the bench to remit the matter to the High Court, said the reference was in fact an appeal straight to the Federal Court.

Haniff argued that the matter involved the constitution because the freedom of the two was affected.

"They are charged under the Penal Code but the Security Offences (Special Measures) Act 2012 (Sosma) was used to detain them," he said
 
Haniff said Sosma procedures could not be used for offences under the Penal Code as this violated Article 149 of the constitution, which gives power to Parliament to enact laws restricting a person's fundamental rights if the legislature believes that person is a threat to national security or public order.

Lawyer Zainur Zakaria, representing Chang, urged the court to offer the appellant bail since they had been incarcerated for more than a month.

He said bail application had been made in the High Court but was refused.

On Oct19, the High Court referred the matter to the apex court under Article 4 of the Federal Constitution as constitutional issues had been raised.

The issue was whether Section 124L of the Penal Code fell under Sosma.

Khairuddin and Chang are accused of committing the offence in France, the United Kingdom, Switzerland, Hong Kong and Singapore, between June 28 and Aug 26 this year.

They are not on bail since their alleged offences are classified as security offences under Sosma.

The prosecution intends to use procedures under Sosma instead of the Evidence Act to prove its case. – The Malaysian Insider