PUTRAJAYA: The Federal Court has ordered the High Court to decide on three constitutional questions regarding the charges under the Security Offences (Special Measures) Act 2012 against sacked Umno Batu Kawan deputy divisional chief Khairuddin Abu Hassan and lawyer Matthias Chang.
A five-men bench led by Chief Justice Tun Arifin Zakaria made the decision after allowing the prosecution's preliminary objection (PO).
The court ruled that the application to refer the questions to the Federal Court was incompetent and did not comply with Section 84 of the Courts of Judicature Act 1964.
"We agree with the prosecution that the application is incompetent and does not go with Section 84," Arifin said adding that the reference made should be remitted back to the High Court to decide.
He fixed Nov 5 for the matter to be heard at the High Court.
The other four judges presiding on the panel were Court of Appeal president Tan Sri Md Raus Sharif, Tan Sri Ahmad Maarop, Tan Sri Hasan Lah and Datuk Ramly Ali.
Earlier, the prosecution led by deputy public prosecutor Awang Armadajaya Awang Mahmud raised a PO against the reference by the High Court to the Federal Court.
Awang submitted the PO on grounds that the three questions referred to the Federal Court did not comply with Section 84 of the Courts of Judicature Act 1964.
"There was nothing in the affidivit that shows that the questions referred was one that 'a question arises as to the affect of constitution'," he said in asking the court to dismiss the referrence and remit it back to the High Court for trial to proceed.
Counsel Mohamed Haniff Khatri Abdulla who acted as Khairuddin's lead counsel had asked the court for an interim bail.
However, that was rejected by the court on grounds that bail should be decided by the High Court since it involved the liberty of a person.
Meanwhile counsel Zainur Zakaria acted as lead counsel for Chang.
On Oct 19, the High Court referred the three questions on constitutionality to the Federal Court on whether the charge could be tried under the Security Offences (Special Measures) Act 2012 (SOSMA).
The three questions were:
1) Does the charge against the accused persons under Section 124L of the Penal Code fall outside the constitutional ambit of Sosma 2012, pursuant to the provisions of Article 149(1) of the Federal Constitution.
2) If the answer to Question 1 is in the affirmative, do the accused persons have the right to be released on bail forthwith?
3) If the answer to Question 1 is in the negative, should the trial of the charge against the accused persons be conducted in the Sessions Court taking into account the sentencing provisions under section 124L of the Penal Code?
Oct 12, Khairuddin and Chang were charged at the Kuala Lumpur magistrate's court with attempted sabotage of the state's banking and financial services.
The duo were alleged to have committed the offences in five countries; France, the United Kingdom, Switzerland, Hong Kong (China), and Singapore between June 28 and Aug 26.
They may be jailed up to 15 years if found guilty under Section 124L of the Penal Code.
Both of them were not granted bail as they were detained under Sosma.