Federal Court today decided that the appeal of Disaster Duo Khairuddin Abu Hassan and Matthias Chang to cite the Attorney General for their arrest under Security Ordinance (Special Measures) Act 2012 (SOSMA) as “Incompetent” and threw it back for the Kuala Lumpur High Court to decide on the three issues raised for their arrest.
Fed Court dismisses constitutional challenge by Khairuddin, Chang
BY KHAIRAH N. KARIM – 3 NOVEMBER 2015 @ 2:30 PM
PUTRAJAYA: The Federal Court has ordered the High Court to decide on three constitutional questions regarding the charges under the Security Offences (Special Measures) Act 2012 against sacked Umno Batu Kawan deputy divisional chief Khairuddin Abu Hassan and lawyer Matthias Chang.
A five-men bench led by Chief Justice Tun Arifin Zakaria made the decision after allowing the prosecution’s preliminary objection (PO).
The court ruled that the application to refer the questions to the Federal Court was incompetent and did not comply with Section 84 of the Courts of Judicature Act 1964.
“We agree with the prosecution that the application is incompetent and does not go with Section 84,” Arifin said adding that the reference made should be remitted back to the High Court to decide.
He fixed Nov 5 for the matter to be heard at the High Court.
The other four judges presiding on the panel were Court of Appeal president Tan Sri Md Raus Sharif, Tan Sri Ahmad Maarop, Tan Sri Hasan Lah and Datuk Ramly Ali.
Earlier, the prosecution led by deputy public prosecutor Awang Armadajaya Awang Mahmud raised a PO against the reference by the High Court to the Federal Court. Awang submitted the PO on grounds that the three questions referred to the Federal Court did not comply with Section 84 of the Courts of Judicature Act 1964.
“There was nothing in the affidivit that shows that the questions referred was one that ‘a question arises as to the affect of constitution’,” he said in asking the court to dismiss the referrence and remit it back to the High Court for trial to proceed. Counsel Mohamed Haniff Khatri Abdulla who acted as Khairuddin’s lead counsel had asked the court for an interim bail.
However, that was rejected by the court on grounds that bail should be decided by the High Court since it involved the liberty of a person.
Meanwhile counsel Zainur Zakaria acted as lead counsel for Chang. On Oct 19, the High Court referred the three questions on constitutionality to the Federal Court on whether the charge could be tried under the Security Offences (Special Measures) Act 2012 (SOSMA).
The three questions were:
1) Does the charge against the accused persons under Section 124L of the Penal Code fall outside the constitutional ambit of Sosma 2012, pursuant to the provisions of Article 149(1) of the Federal Constitution.
2) If the answer to Question 1 is in the affirmative, do the accused persons have the right to be released on bail forthwith?
3) If the answer to Question 1 is in the negative, should the trial of the charge against the accused persons be conducted in the Sessions Court taking into account the sentencing provisions under section 124L of the Penal Code?
Oct 12, Khairuddin and Chang were charged at the Kuala Lumpur magistrate’s court with attempted sabotage of the state’s banking and financial services.
The duo were alleged to have committed the offences in five countries; France, the United Kingdom, Switzerland, Hong Kong (China), and Singapore between June 28 and Aug 26.
They may be jailed up to 15 years if found guilty under Section 124L of the Penal Code. Both of them were not granted bail as they were detained under Sosma.
On 19 October 2015, Kuala Lumpur High Court pushed the case to the Federal Court to decide.
High Court refers Khairuddin and Chang’s Case to Apex Court
19 October 2015 | Source: Bernama
KUALA LUMPUR, Oct 19 (Bernama) — The High Court today has referred former Batu Kawan UMNO division vice chief Datuk Seri Khairuddin Abu Hassan and lawyer Matthias Chang Wen Chieh’s case to the Federal Court to determine whether the charges they faced are triable under the Security Offences (Special Measures) Act 2012 (SOSMA).
Judge Datuk Mohd Azman Husin said the court will forward three questions on constitutional issues to the Apex Court soon, among others, does the charge against the accused persons as tendered before this court under Section 124L of Penal Code, fall outside the constitutional ambit of SOSMA?
“If the answer to the first question is in affirmative, do the accused persons have the right to be released on bail forthwith?
“If the answer to the first question is in negative, should the trial against the two accused, be conducted in the Sessions Court taking into account the sentencing provision under Section 124L of Penal Code?,” he said.
The judge made the ruling after hearing submissions from defence lawyers Mohamed Hanif Khatri Abdulla and Zainur Zakaria and Deputy Public Prosecutor Mohd Masri Daud and Mohamad Abazafree Mohd Abbas.
The duo had on Oct 13, filed a motion under Section 35 of Courts of Judicature Act 1964, at the High Court seeking several orders from the High Court, among others, that the charge against them under section 124L of the Penal Code does not fall under SOSMA and therefore, wanted the court to release them on reasonable bail.
Khairuddin, 53, and Chang, 65, were charged with attempting to sabotage Malaysia’s banking and financial services under Section 124L of the Penal Code (Act 547) read with Section 34 of the same Code, which carries a jail term of up to 15 years upon conviction.
He allegedly committed the offence at five locations between June 28 and Aug 26, this year.
The locations are the office of the France Economic and Financial Crimes Division chief in Paris; Charing Cross Police station, London, United Kingdom; office of the Switzerland Attorney General in Bern; WaiChan Police station, Hongkong and Cantonment Police Headquarters, Singapore.
The Federal Court decision put forth the matter is yet to reach the Apex Court level, to be deemed as a matter of constitutional dispute. Hence, the matter should be argued at High Court.
A synopsis of Article 149 which is part of basis for the first question:
Article 149: 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 Article 5, 9, 10 or 13, or would apart from this Article be outside the legislative power of Parliament; and Article 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 Clause (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.
One of the laws enacted by the Malaysian Parliament to revoke the Constitutional right of a citizen was the Internal Security Act (1960). It has since been rescinded and replaced with SOSMA 2012.
This is a landmark case indeed. The acts of the Disaster Duo have been echoed by global media, which somewhat caused some degree of effect on the confidence of doing business in this country.