SOSMA – ITS CONSTITUTIONALITY
Prof Emeritus Datuk Dr Shad Saleem Faruqi
Limits of Article 149 powers
- A law under Article 149 is permitted to violate Articles 5, 9, 10 and 13 of the Federal Constitution. However, there is no power to legislate inconsistently with other Articles of the supreme Constitution. As SOSMA declares itself to be a law in pursuance of Article 149 of the Federal Constitution, a provision of SOSMA cannot violate any provisions of the Constitution other than Articles 5, 9, 10 and 13. Specifically, Articles 8, 121 and 151 cannot be violated.
- The intention to violate Articles 5, 9, 10 and 13 must be express and not implied: Lee Mau Seng v Minister  2 MLJ 137 and Abdul Ghani Haroon v Ketua Polis (No 3)  2 CLJ 709. SOSMA complies with this requirement of indicating expressly Parliament’s intention to legislate inconsistently with the Constitution in several sections of SOSMA like subsections 5(3) and 7(9).
Inconsistency with Article 151(1)(a) and (b)
- In Part XI of the Constitution, the provisions of Articles 149 and 150 are subject to Article 151 which also is part of Part XI and is explicitly referred to as “Restrictions on preventive detention”. It is submitted that the restrictions in Article 151 have not been honoured by SOSMA.
- Subsection 4(2) of SOSMA requires that a person arrested under subsection (1) shall be informed as soon as may be of the grounds of his arrest. This subsection seriously falls short of Article 151(1)(a) which provides two procedural rights: (i) the detaining authority shall as soon as may be inform the detainee of the grounds of his arrest and (ii) supply the allegations of fact on which the order is based. Subsection 4(2) of SOSMA fails to provide for the second right encapsulated in Article 151(1)(a) – i.e. a right to the allegations of fact on which the order is based. Subsection 4(2) of SOSMA is, therefore, unconstitutional.
- Article 151(1)(a) and (b) of the Federal Constitution require that any law providing for preventive detention shall give the detainee an opportunity of making representations against the preventive detention order to an Advisory Board. SOSMA has no provision for such an Advisory Board and representations to the Board. This is a fatal violation of Article 151(1) because any law under Article 149 is subject to Article 151.
- Article 151(2) provides for the appointment, qualification and composition of the three-member Advisory Board in all preventive detention cases. The members of the Board are to be appointed by the Yang di-Pertuan Agong. SOSMA fails to provide for such a Board and deprives the Yang di-Pertuan Agong of the power to appoint an Advisory Board. SOSMA is, therefore, a violation of Article 151(1) and (2).
Validity of the 28-day period of detention.
- Under subsection 4(11) of SOSMA, there is a sunset clause for subsection 4(5). It is mandated that subsection 4(5) which authorises the extension of detention beyond 24 hours to an extended period of 28 days “shall be reviewed by Parliament every five years and shall cease to have effect unless, upon the review, a resolution is passed by both Houses of Parliament to extend the period of operation of the provision. As SOSMA was gazetted on 22 June 2012, the five-year period expired on 21 June 2017 and the sunset clause went into effect. The Government must offer proof that the requisite resolutions were passed before 21 June 2017. Failure to offer such proof will mean that subsection 4(5) has ceased to have effect and the extension of the detention beyond 24 hours was unlawful, without jurisdiction and ultra vires.
Violation of Article 121(1) of the Constitution
- It is now settled authority after Federal Court decision in Semenyih Jaya v Pentadbir Tanah  MLJU 535 and Indira Gandhi Mutho v Pengarah JAIP  3 CLJ 145 that judicial power of the Federation resides in the superior courts and cannot be taken away by legislation or constitutional amendment. Despite the later JRI Resources v Kuwait Finance  3 MLJ 531(2019) decion, Semenyih (2017) and Indira Gandhi (2018) remain authority for the proposition that the superior courts have an inherent jurisdiction to review the exercise of power by all authorities.
- Instead, many aspects of SOSMA require the judiciary to act under the dictation of the executive.
- Subsection 8(2) of SOSMA, in relation to sensitive information, provides that the court shall allow the ex parte application of the Public Prosecutor.
- In section 30, subsections (1) to (7), a court decision to acquit an accused can be negated and rendered meaningless by the simple act of the Public Prosecutor filing a notice of appeal. The court SHALL then remand the accused pending the filing of the notice of appeal (s. 30(3)). What is remarkable is that if the PP loses the appeal and the order of acquittal is affirmed, the PP can file another notice of appeal and the court SHALL again remand the acquitted person till the final disposal of the appeal. No time limits are supplied within which such appeals are to be heard and disposed of. The result is that an acquitted person can spend years in remand pending the FINAL disposal of the PP’s appeals. Section 30 is a serious violation of the powers of the courts to acquit an accused after a fair trial. The court process is made to look like a grotesque display of executive omnipotence. Judges can have their say, but, no matter what the judicial verdict, the PP will have his way. Section 30 is a serious violation of the judicial power to acquit an accused after a fair trial. This offends against the spirit of Semenyih (2017).
The term ‘law’ in Article 5(1) refers to a law that is proportionate
- The term “law” in Article 5(1) is not a heathen word for power. It does not refer to any law whatsoever passed by parliament, no matter how arbitrary, unreasonable or disproportionate the law may be. Alma Nudo Atenza  MLRAU 118 is authority for the proposition that even a statute under Article 149 like the Dangerous Drugs Act must not be disproportionate. In that case the double presumption in the drug law was declared to be disproportionate and therefore a violation of due process. See also Tan Tek Seng, Semenyih Jaya and Mat Shuhaimi Shafie v Kerajaan  1 MLJ 436. Several provisions of SOSMA are disproportionate, unreasonable and arbitrary and deprive the accused or the detainee of due process and a fair trial.
- Section 18 on the admissibility of statements made by persons “who cannot be found” is deeply prejudicial to the idea of a fair trial. A witness for the prosecution can be made to disappear and then his/her evidence may be admitted without any chance of cross examination. In such situations the trial may be a sham and doctored and unchallengeable evidence can be used to convict a detainee.
- In section 18B, a spouse can be compelled to give evidence against his/her partner in gross violation of privacy and the interest in preserving the institution of marriage.
- In section 19 a conviction can be based on the “uncorroborated testimony of a child of tender years”.
- In section 30, subsections (1) to (7), a court decision to acquit an accused can be negated and rendered meaningless by the simple act of the Public Prosecutor filing a notice of appeal. The courts are then obliged to remand the acquitted accused. Even if the PP loses his appeal, the PP can file another notice of appeal and the court has no choice but to remand the acquitted party again. Such disrespect for the judicial process and the rights of the accused is a serious violation of due process guaranteed by Article 5(1). On the authority of Alma Nudo, section 30 must be declared disproportionate, a violation of due process under Art 5 and therefore, unconstitutional.
Violation of Article 8(1) and (2) of the Constitution
- In the matter of bail, subsection 13(2)(b) permits bail to “a woman” but not to a man. This is a clear violation of gender equality mandated by Art 8(2) and by the principle of “reasonable classification” in such cases as PP v Khong Teng Khen  2 MLJ 166.