I note the Attorney General’s statement dated 13.12.2019, in which he confirmed that the Attorney General’s Chambers would not appeal against the decision of Justice Mohd Nazlan Mohd Ghazali on 29.11.2019 declaring section 13 of the Security Offences (Special Measures) Act, 2012 (SOSMA) unconstitutional, in an application filed on behalf of Melaka EXCO Member and State Assemblyman, G. Saminathan.
In the said statement, the AG said:
“Justice Nazlan in the High Court recognised the principles in the basic structure doctrine and developed in the Indira Ghandi and Semenyih Jaya cases when holding section 13 of the SOSMA Act unconstitutional because that section closes the door to judicial application for bail. This access to justice is denied to all accused under SOSMA between charge and their final appeal before the Federal Court. In my opinion, any appeal against the decision of the High Court is doomed to fail.
For these reasons, in the exercise of my discretion, I have decided that the Public Prosecutor will not appeal against the recent decision of the High Court in holding section 13 of SOSMA unconstitutional. Our DPPs will deal with each bail application on its merits and the Court will act as arbiter, as contemplated in the Federal Constitution.”
From the above, it is clear that the AG, on 13.12.2019, decided not to appeal against Justice Nazlan’s said decision, obviously because he agreed with Justice Nazlan that the said section 13 was unconstitutional.
Further, the AG confirmed that Deputy Public Prosecutors will “deal with each bail application on its merits”. This clearly implies that the unconstitutionality of the said section would no longer be questioned by the AG.
Of course, it would be up to the Court to decide if bail is warranted after hearing the merits of each application that comes before it.
In light of the above, it was shocking to hear a DPP inform a different High Court judge today, in a bail application on behalf of another SOSMA detainee, B. Subramaniam, that she had been instructed by the AG to, again, raise the issue of the constitutionality of the said section 13 and argue that same is constitutional.
There can be no doubt that such instructions from the AG himself directly contradicts his stand on the matter as reflected in his statement dated 13.12.2019 above.
On the one hand the AG announces that the decision of Justice Nazlan was correct and that any appeal against the same was “doomed to fail”, yet on the other, he instructs his DPP to argue the opposite before a different judge – that the said section is constitutional!
With respect, the AG’s stand on the matter is confusing and most regrettable.
Is he today taking a completely different stand compared to his stand barely a month ago?
If he is, he must publicly state why.
In the circumstances, I call on the AG to confirm if his statement dated 13.12.2019 above, particularly that he was of the view that “any appeal against the High Court (Justice Nazlan) is doomed to fail”, still stands.
There must be consistency in the decisions of the AG as they affect the public. As such, it is necessary for the AG to set the record straight immediately.