Narkunavathy Sundareson J:

GROUNDS OF JUDGMENT

Introduction

[1]Unless otherwise indicated, all references to sections will be in reference to Security Offences (Special Measures) Act 2012 (Act 747) (SOSMA) and articles will be in reference to the Federal Constitution (FC).

[2]In Enclosure 1, the Plaintiffs sought the following reliefs-

(i)a declaration that SOSMA is null and void for contravening Article 149

(ii)a declaration that sections 4(5)1314151618A2030Articles 8121(1)149

[3]After careful consideration of the cause papers and both the written and oral submissions, this Court dismissed Enclosure 1 save for the relief in relation to section 30

Background facts

[4]The facts leading to Enclosure 1 can be summarized as follows. The Plaintiffs were charged at the High Court in Klang (Trial High Court) on the following charge-

“Bahawa kamu, antara November 2019 hingga 4 Sep 2024, bertempat di Sungai Janggut Seafood Restoran (Jeram) Sdn Bhd, No. 16, Jalan Bagan Sg Janggut, Jeram 45800 Jeram Selangor dalam Daerah Kuala Selangor, dalam Negeri Selangor Darul Ehsan, telah didapati menjadi ahli kumpulan jenayah terancang ‘Geng TR’ dan oleh yang demikian kamu telah melakukan satu kesalahan di bawah Seksyen 103V(1) Kanun Keseksaan [Akta 574]dan boleh dihukum di bawah seksyen yang sama.”

[5]The charge against the Plaintiffs fell within the ambit of Chapter VlB in the First Schedule, SOSMA and thus categorised as a security offence. Therefore, the Plaintiffs were subjected to the procedure provided under SOSMA.

[6]Plaintiffs 5, 8, 14 and 15 have since been granted bail under section 13(2)(c)

The Plaintiffs’ complaints

[7]Although in prayer (1) of Enclosure 1, the Plaintiff sought to invalidate SOSMA in its entirety, during oral submissions, Plaintiffs’ counsel clarified that the challenge was confined to only the Provisions as per prayer (2) in Enclosure 1.

[8]In essence, Enclosure 1 prayer (2) was premised on the following broad grounds-

(i)the Provisions removed constitutional safeguards against arbitrary detention, displaced judicial oversight and vested judicial powers in the executive; this contravened Article 121Article 5

(ii)the Provisions were discriminatory, arbitrary and disproportionate as they disregarded procedural fairness, the presumption of innocence and created asymmetries between prosecution and defence; this contravened Article 8

The Defendant’s response

[9]In their affidavit in reply, the Defendant denied the Plaintiffs’ allegations and maintained that the Provisions were constitutional and valid.

[10]The Plaintiffs were only charged with a security offence and therefore only affected by section 13section 13

[11]The Defendant contended that the challenge to the constitutionality of the Provisions was not grounded on any facts relating to the Plaintiffs and therefore purely academic.

[12]Lastly, the Defendant averred that the Provisions essentially involved criminal procedure and therefore any challenge to the constitutionality of these Provisions ought to be raised in the criminal proceedings against the Plaintiffs before the Trial High Court and not by way of Enclosure 1 in the civil High Court.

Preliminary issuesJurisdiction of the civil High Court

[13]This Court’s jurisdiction to hear challenges to the constitutionality of any provision of law vis-a-vis the FC is not in question. This authority is explicitly conferred by Article 4(1)

[14]In SIS Forum Malaysia v. Keraiaan Negeri Selangor; Majlis Agama Islam Selangor (Intervenor) at 369-

“Constitutional judicial review is ingrained within cl (1) of art 4 of the FC which stipulates that the FC being supreme, any law inconsistent with it is void to the extent of the inconsistency with the FC. Two things are corollary to this mighty declaration. First, the Civil Federal Judiciary is the only body capable of exercising review powers over the constitutional validity of laws as the final interpreter and independent protector of the FC. This is by virtue of cl (1) of art 121 of the FC which stipula