This article first appeared in The Edge Financial Daily on November 7, 2019

KUALA LUMPUR: The prosecution in Melaka state executive councillor G Saminathan’s suit involving a Security Offences (Special Measures) Act 2012 (Sosma) charge yesterday objected to his bid to challenge the constitutionality of Section 13(2) of Sosma, which does not allow bail for those arrested with exceptions.

Deputy Public Prosecutor (DPP) Mohd Izhanuddin Alias, who appeared together with fellow DPP Muhamad Iskandar Ahmad, questioned the High Court’s jurisdiction to hear the matter as the prosecution argued that it should be done before the Federal Court.

Citing the decision in Transmile Group Bhd founder and former chief executive officer Gan Boon Aun’s case, Mohd Izhanuddin said those wanting to challenge the constitutionality of a piece of legislation, especially a terrorist prevention act, must do so in the Federal Court.

“The High Court is not a competent forum to hear the application,” he said.

Furthermore, the prosecution argued that there was no question of law posed to the High Court in wanting to challenge the legislation.

However, Ramkarpal Singh, who appeared together with Sangeet Kaur Deo and Harshaan Muhammad Zamani for Saminathan, argued that the High Court has jurisdiction to hear the challenge as it is not necessary for the case to be brought up to the apex court.

Citing the Kim Po and the Alma Nudo cases decided by the Federal Court, Ramkarpal said the High Court has jurisdiction to hear constitutional challenges.

Section 13(2) of Sosma states that there should be no bail for a person who has been charged with Sosma offences with the exception of those below 18 years of age, except for those who have ailments or are women.

Justice Mohd Nazlan Mohd Ghazali said he is prepared to hear the issue of jurisdiction and questions about the constitutionality of the said section next week.

“The court would hear both arguments on Wednesday (next Wednesday). The parties are to submit their written submission by [next] Tuesday,” he said.

Saminathan, 34, who is also the Gadek assemblyman, is charged with knowingly giving support to the Liberation Tigers of Tamil Eelam terrorist group through his Facebook account.

He and 11 others are being charged under Sosma and are currently detained. On Tuesday, it was reported that a habeas corpus application by five of the detainees was dismissed by High Court Justice Datuk Ahmad Shahrir Mohd Salleh.