Judge Muhammad Jamil Hussin told the prosecution and defence members in the case of DAP Seremban Jaya assemblyman P Gunasekaran, accused of supporting defunct terrorist group Liberation Tigers of Tamil Eelam (LTTE), to argue on Section 13 of Sosma after the court was informed that Attorney-General Tommy Thomas’ position was that the section was unconstitutional.
“There is a ruling by the Federal Court previously that states the specific provision in any laws overwrites the general provision,” he said, after hearing submissions from deputy public prosecutor Mohd Saifuddin Hashim Musaimi and Gunasekaran’s lawyer, Ramkarpal Singh.
Gunasekaran filed his bid to be released on bail pending trial under Section 388 of the Criminal Procedure Code, the provision that allows an accused person charged for non-bailable offences to apply for bail.
Saifuddin informed the court that the AG stood by a previous High Court decision that declared Section 13 as invalid and was not filing an appeal against it.
High Court judge Mohd Nazlan Mohd Ghazali had struck down the provision that took away judicial discretionary power on whether to allow bail applications.
“The prosecution will only argue on the bail application’s merits,” Saifuddin added.
To that, Jamil questioned the DPP on whether Section 13 was still in force and whether the court must give effect to it.
Saifuddin responded in the affirmative.
Jamil said he was not bound by another High Court’s decision on the Section 13 ruling.
Ramkarpal also said that the defence team would argue on the legality of Section 13 if the court instructed them to do so.
The judge then instructed the defence and prosecution to submit further on Section 13’s legality on Jan 23.
Meanwhile, in another High Court hearing, another DAP assemblyman, G Saminathan’s bail application, Judicial Commissioner Ahmad Shahrir Mohd Salleh said that he would hear a preliminary issue and the latter’s bail application on Jan 24.
The preliminary issue centred on whether Shahrir is bound by Nazlan’s decision in granting bail to Saminathan after Ramkarpal told the court that Nazlan’s decision was related to Saminathan’s case.
Previously, Saminathan had filed a motion for the court to determine if it had the power to grant bail for an accused person in cases related to security offences.
Gunasekaran and Saminathan are facing charges under Section 130J(1)(a) of the Penal Code for allegedly supporting the LTTE. If convicted, he may face a maximum sentence of 30 years in jail.
Saminathan was also charged with possessing LTTE-linked items on his mobile phone.