Su Tiang Joo JC:

JUDGMENT

Introduction

[1]There are eight applications for bail before the High Court (“Court”). The Public Prosecutor who is the Respondent in all eight applications opposes all the applications on the following grounds.

(i)This is the second application;

(ii)The applicants do not qualify for bail pursuant to section 13Security Offences (Special Measures) Act 2012SOSMA”).

Background

[2]Each of the eight Applicants together with two others making a total of ten accused persons are severally charged under Section 130V(1)Penal CodeSection 130V (1)

Court’s analysis and findings

[3]The Court will deal with each of the assertions put forward by the Applicants and the Respondent in no particular order.

(i) Constitutionality of Section 13 of the SOSMA

[4]The provisions of Section 13SOSMA

“

(1)Bail shall not be granted to a person who has been charged with a security offence.

(2)Notwithstanding subsection (1)-

(a)a person below the age of eighteen years;

(b)a woman; or

(c)a sick or an infirm person,

charged with a security offence, other than an offence under Chapter VIA of the Penal Code [Act 574] and the Special Measures Against Terrorism in Foreign Countries Act 2015 [Act 770], may be released on bail subject to an application by the Public Prosecutor that the person be attached with an electronic monitoring device in accordance with the Criminal Procedure Code.”

[5]With all due respect, the Court is not persuaded to follow the authority of Saminathan a/l Ganesan v. PP Section 13SOSMASection 41B(1)Dangerous Drugs Act 1952DDA”), which I will discuss further below.

[6]On a related note, on the separation of powers and basic structure doctrine argument raised by Mr. Charan Singh, the former lead counsel for (i) Ganesan a/l Durasamy, (ii) Velmurugan a/l Paniresilvam, (iii) Entiran a/l Durasamy and (iv) Ganasen a/l Kupusamy that judicial power including that to grant bail cannot be taken away and although the Federal Court would probably have to revisit this issue arising from its decision in Koh Chin Wah v PP (infra) and the decision of the Court of Appeal in Tamil Selvan Letchumenan v. PP (infra), this Court is bound by the latest Federal Court decision in Goh Leong Yong v. Asp Khairul Fairoz Rodzuan & Ors

“[88] On the basic structure doctrine, the majority judgments in Maria Chin Abdullah v. Ketua Pengarah Imigresen & Anor Rovin Joty Kodeeswaran v. Lembaga Pencegahan Jenayah & Ors And Other Appeals and Zaidi Kanapiah (supra) have addressed this doctrine extensively by referring to the judgment of the learned Raja Azlan Shah FJ in Loh Kooi Choon v. Government Of Malaysia [1975] 1 LNS 90; and Suffian LP in Phang Chin Hock v. PP [1979] 1 LNS 67; , which had consistently rejected the doctrine. It is already settled that [the] basic structure doctrine has no place in our jurisprudence. Therefore, I will not dwell on it in this judgment”.

[7]I also quote the following excerpts from the judgment of His Lordship, Abdul Rahman Sebli FCJ who wrote the supporting judgment in Goh Leong Yong (supra):

“[140]…To remove judicial power from the two High Courts means to take away judicial power from the two High Courts and leaving them with no judicial power to exercise.

[141] That cannot be factually correct. Judicial power has never been removed from the two High Courts and will remain vested in the two High Courts for as long as art. 121(1) is still embedded in the Constitution. …..

[143] The truth is, judicial power has never been removed from the two High Courts at any time either before or after the amendment to art. 121(1). The removal of judicial power from the two High Courts can only be done by removing the whole of art. 121(1) from the Constitution, and not merely by removing those few words from the article although, admittedly, they are words of significant import.”

[8]Instead, this Court agrees with the principle enunciated by His Lordship, Collin Lawrence Sequerah J. in the High Court case of Suresh Kumar Velayuthan v. PP Section 13

[9]Howe