PUTRAJAYA: The Federal Court has ruled that a provision in the Security Offences (Special Measures) Act, or Sosma, that discriminates against offenders for bail is constitutional.
“We are of the opinion that Section 13 of Sosma is not unconstitutional,” justice Vernon Ong said in a unanimous decision to dismiss a bail application by a contractor charged with two counts of human trafficking.
Ong, who sat with Zabariah Mohd Yusof and Rhodzariah Bujang, said Sections 26A and 26D of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007 or Act 670 also came within the ambit of Sosma.
Ong said the bench did not find any merit to offer bail to Samat Yamin based on an affidavit he had filed.
“He is not a sick or infirm person,” he said.
Samat was charged under Section 26A with trafficking 30 foreigners and profiting from that activity under Section 26D of Act 670. He is said to have committed the offences between May 17 and May 20, 2020 at a house in Setapak, Kuala Lumpur.
Samat, 56, was charged in the High Court two years ago but his bail application was denied as the prosecution had used Sosma, a procedural law, to refuse bail.
This is because the two charges are said to be offences that touch on national security.
The Court of Appeal in May also dismissed his application on grounds it had no jurisdiction to hear the matter.
However, the Federal Court today dismissed the prosecution’s preliminary objection and proceeded with the merit of the bail application.
Ramkarpal Singh, who represented Samat, submitted that Section 13 of Sosma was unconstitutional as it violated Article 8 of the constitution that guaranteed equality and equal protection under the law.
“That provision is discriminatory as bail is given to a woman but not a man,” he said.
Ramkarpal said the law allowed for unjust treatment in certain cases but not when it came to bail applications.
“There is no reasonable justification to allow a man to be treated differently in applying for bail,” he said.
Section 13 of Sosma allows for bail if the offender facing a security offence is one who is below 18 years, a woman, sick or infirm person.
Ramkarpal, who was assisted by Sangeet Kaur Deo, Harshaan Zamani and Simranjit Kaur, also said the charges were not security-related offences as there were no elements of violence or terrorism.
Deputy public prosecutor (DPP) Dusuki Mokhtar submitted that the law allowed for discrimination based on the principle of “intelligible differentia” (the difference is capable of being understood).
“Women must be treated differently due, among others, to the stigma attached if they are sent to prison,” said Dusuki, who was assisted by DPP Nahra Dollah.
Dusuki said Samat’s medical conditions were based on a report made four years ago.
“He is not suffering from a life-threatening ailment where he needs continuous treatment,” he added.
Speaking to reporters, Ramkarpal said he would be writing to the court to obtain a written judgment.
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