Exclusion of certain actions from SOSMA under Art 149(1) of the Federal Constitution governs the applicability of security offenses, impacting the bail status.

[1] This was an appeal by the prosecution against the decision of the High Court at Kuala Lumpur in allowing the notice of motion filed by Khairuddin Abu Hassan and Matthias Chang Weng Chieh (the respondents) for among others an order that they be released on bail. For the reasons that follow, we had unanimously dismissed the appeal.

The Background Facts

[2] On 31 July 2012, the Security Offences (Special Measures) Act 2012 ( SOSMA ) which was enacted by Parliament under Art 149(1) of the Federal Constitution came into force. Article 149(1) of the Federal Constitution reads:

"Legislation against subversion, action prejudicial to public order, etc.

149. (1) If an Act of Parliament recites that action has been taken or threatened by any substantial body of persons, whether inside or outside the Federation -

(a) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property; or

(b) to excite disaffection against the Yang di-Pertuan Agong or any Government in the Federation; or

(c) to promote feelings of ill-will and hostility between different races or other classes of the population likely to cause violence; or

(d) to procure the alteration, otherwise than by lawful means, of anything by law established; or

(e) which is prejudicial to the maintenance or the functioning of any supply or service to the public or any class of the public in the Federation or any part thereof; or

(f) which is prejudicial to public order in, or the security of, the Federation or any part thereof,

any provision of that law designed to stop or prevent that action is valid notwithstanding that it is inconsistent with any of the provisions of Art 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Art 79 shall not apply to a Bill for such an Act or any amendment to such a Bill.

(2) A law containing such a recital as is mentioned in Cl (1) shall, if not sooner repealed, cease to have effect if resolutions are passed by both Houses of Parliament annulling such law, but without prejudice to anything previously done by virtue thereof or to the power of Parliament to make a new law under this Article.".

[3] The Preamble of SOSMA states:

"An Act to provide for special measures relating to security offences for the purpose of maintaining public order and security and for connected matters.

WHEREAS action has been taken and further action is threatened by a substantial body of persons both inside and outside Malaysia -

(1) to cause, or to cause a substantial number of citizens to fear, organized violence against persons or property;

(2) to excite disaffection against the Yang di-Pertuan Agong;

(3) which is prejudicial to public order in, or the security of, the Federation or any part thereof; or

(4) to procure the alteration, otherwise than by lawful means, of anything by law established;

AND WHEREAS Parliament considers it necessary to stop such action;

NOW, THEREFORE, pursuant to Art 149 of the Federal Constitution IT IS ENACTED by the Parliament of Malaysia as follows:".

[4] Sections 12 and 13(1) of SOSMA provide that all security offences shall be tried by the High Court and that bail shall not be granted to a person who has been charged with a security offence. Section 3 of defined "security offences" as the offences specified in the First Schedule. One of the offences specified in the First Schedule is an offence under s 124L of the Penal Code which provides:

"Attempt to commit sabotage

124L. Whoever attempts to commit sabotage or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fif