ENTIRAN DURASAMY & OTHER APPLICATIONS v. PP
HIGH COURT MALAYA, IPOH
SU TIANG JOO JC
[CRIMINAL APPLICATION NOS: AA-44-19-04-2021, AA-44-20-04-2021,
AA-44-21-04-2021, AA-44-22-04-2021, AA-44-28-05-2020, AA-44-30-05-2020,
AA-44-31-05-2020 & AA-44-36-06-2020]
2 NOVEMBER 2021

The blanket denial of the right to be considered for bail for male offenders under the Security Offences (Special Measures) Act 2012 as adverted to by its s. 13(2)(b) is discriminatory of men. Such a blanket exception in favour of women is also devoid of any rationale or reasonable classification or differentiation and violates the equality provision of art. 8 Federal Constitution. Whilst SOSMA is a valid law and remains valid notwithstanding that it may offend arts. 5, 9, 10, 13 of the FC, it cannot offend or be inconsistent with art. 8. It follows that the word ‘women’ in s. 13(2)(b) must be defined as including ‘men’. It follows further that the applicants for bail herein, being men charged with a security offence under SOSMA, are entitled to be considered for bail.

CRIMINAL LAW: Bail – Security offences – Blanket denial of bail to male offenders – Whether discriminatory – Whether violating non-gender discrimination provision of art. 8 Federal Constitution – Applicant not in category of persons amenable to bail – Whether eligible for consideration for bail nonetheless – Maxim expressio unius est exclusio alterius – Applicability – Penal Code, s. 130(V)(1) – Security Offences (Special Measures) Act 2012, s. 13(2)(b) – Federal Constitution, arts. 5, 8, 9, 10, 13, 149

STATUTORY INTERPRETATION: Construction of statute – Interpretation – Section 13(2)(b) Security Offences (Special Measures) Act 2012 – Security offence – Grant of bail – Word ‘women’ therein – Whether to include ‘men’ – Whether male offender under Act could be considered for bail

STATUTORY INTERPRETATION: Construction of statute – Laws enacted under art. 149 Federal Constitution – Security Offences (Special Measures) Act 2012 – Validity – Whether valid notwithstanding inconsistency with arts. 5, 9, 10, 13 of FC – Whether to be construed harmoniously with equality provision in art. 8 – Whether cannot be inconsistent with art. 8 – Security Offences (Special Measures) Act 2012, s. 13(2)(b) – Federal Constitution, arts. 5, 8, 9, 10, 13, 149

CRIMINAL PROCEDURE: Bail – Security offences – Second application for bail – Whether court functus officio – Failure by court in first application to consider possible discrimination and breach of art. 8 Federal Constitution – Whether a jurisdictional omission – Whether an exception to functus officio rule – Whether present court could hear fresh application – Security Offences (Special Measures) Act 2012, s. 13(2)(b) – Federal Constitution, art. 8