AG must protect our national security

The Young Professionals (YP) are deeply troubled over the decision of the Attorney-General, announced on 13 December 2019, not to appeal over the recent and deeply flawed decision of the High Court in declaring section 13 of the Security Offences (Special Measures) Act 2012 (SOSMA) as unconstitutional.

Section 13(1) of the Act, as we understand it, imposes a ban on any person who has committed what is termed a “security offence” from applying from bail. The justification offered by the court is that bail traditionally comes within the remit of the courts and Parliament by enacting the provision has “interfered” with this traditional remit to decide on bail and this violates the principle of separation of powers, which the court in turn declared to be part of the “basic structure” of our constitution.

This argument is wrong on so many levels. First of all it must be understood that SOSMA is not ordinary legislation but was enacted under Article 149 of the Federal Constitution. The Article confers special licence on laws enacted to deal with subversive threats facing us as a nation, terrorism and other security offences within SOSMA included, so in actual fact, there is constitutional sanction for SOSMA in the name of the need to tackle subversion and terrorism in all their forms, per the said Article 149 of the Constitution, including for the particular section denying bail to those accused of a security offence.

One must appreciate that matters of national security are generally considered to be within the purview of the executive and legislative branches of government, and this principle is recognised not just in Malaysia, but other countries as well. In the British case of The Zamora [1916] 2 AC 77 the learned judge, Lord Parker, was quoted as saying that:-

“Those who are responsible for the national security must be the sole judges of what the national security requires. It would be obviously undesirable that such matters should be made the subject of evidence in a court of law or otherwise discussed in public,”

Lord Parker, The Zamora [1916] 2 AC 77

The above passage was quoted with approval in a later British case CCSU v Minister for the Civil Service [1985] AC 374 wherein it was said further that the decision on whether the requirements of national security outweigh the duty of fairness in any particular case is for the Government and not for the courts because the Government alone has access to the necessary information, and in any event the judicial process is unsuitable for reaching decisions on national security.

It is axiomatic that SOSMA, like its predecessor, the Internal Security Act 1960 (“ISA”) is a preventive law and the denial of bail for those who would otherwise commit security offences is appropriate given the gravity of the offence for which they are charged and the probability of those involved committing dangerous subversive acts. It is this that the learned judge deciding at the high court has failed to appreciate, and must thus be corrected by our superior courts on appeal.

Our second objection stems from the court’s worrying decision to continue and countenance the new judicial trend, stemming from the 2017 Semenyih Jaya case and the 2018 Indira Ghandhi case, to legitimise the basic structure doctrine, an alien legal doctrine imported from India pertaining solely to the Indian constitution with no basis whatsoever in our constitutional law.

It must be noted that the basic structure doctrine was first developed by Justice Hans Raj Khanna in the 1973 case Kesavananda Bharati v. State of Kerala and has been consistently rejected by our courts prior to the 2017 Semenyih Jaya case, as the late Raja Azlan Shah who was a federal court judge decided in the case of Loh Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187 stated, when referring to this alien doctrine that:-

“Whatever may be said of other Constitutions, they are ultimately of little assistance to us because our Constitution now stands in its own right and it is in the end the wording of our Constitution itself that is to be interpreted and applied, and this wording ‘can never be overridden by the extraneous principles of other Constitutions,”

Raja Azlan Shah J, Loh Kooi Choon v The Government of Malaysia [1977] 2 MLJ 187

His Lordship then affirmed the absolute prerogative of our Parliament to amend our Constitution as it sees fit, per the procedure laid down in Article 159 of our Constitution. This point has been often repeated, of late by our former Chief Justice, Tun Abdul Hamid Mohamad in his article, Not for judges to rewrite constitution, (New Straits Times, 14 June 2017).

Parliament had indeed amended our Constitution in 1988 to substitute Article 121(1) of our Constitution with our present one which reads that the powers of our courts “may be conferred by or under federal law”. This was correctly interpreted by Abdul Hamid Mohamad, the then President of the Court of Appeal, in the 2008 case of Public Prosecutor v Kok Wah Kuan when he said therein that:

“If we want to know the jurisdiction and powers of the two High Courts we will have to look at the federal law. If we want to call those powers ‘judicial powers’, we are perfectly entitled to. But, to what extent such ‘judicial powers’ are vested in the two High Courts depend on what federal law provides, not on the interpretation the term ‘judicial power’ as prior to the amendment.”

Abdul Hamid Mohamad JCA, Public Prosecutor v Kok Wah Kuan (2008)

The above correctly decided cases were either overlooked intentionally or unintentionally by the 2017 Semenyih Jaya and 2018 Indira Ghandhi cases, on which this alien doctrine of basic structure now derives its legitimacy. This doctrine must be stopped in its tracks for it will open the door for judges to make law by declaring statutes unconstitutional by reference to it, thus usurping law making powers reserved exclusively for Parliament.

We accordingly condemn the Attorney-General for refusing to appeal the deeply flawed decision reached by the high court in the SOSMA bail case and accordingly, call upon him to initiate appeal before our superior courts regarding the same immediately.

* The above statement was issued by Faidhur Rahman Abdul Hadi, Chief Executive of the Young Professionals (YP), a civil society organisation representing professionals who uphold the Federal Constitution.