The Federal Court today remitted the case of former Umno division leader Khairuddin Abu Hassan and his lawyer Matthias Chang back to the High Court to decide whether the charge they face comes under the Security Offences (Special Measures) Act 2015 (Sosma).

The decision was made by Chief Justice Arifin Zakaria after it found the three reference questions posed to be incompetent under Section 84 of the Courts of Judicature Act 1984.

"This court orders that the High Court hear the matter immediately and the matter will be heard on Thursday," he said.

"Should an appeal arise to the Court of Appeal, this court also orders that it be heard with urgency."

Justice Arifin, who led a five-member panel, however refused to grant interim bail for fear it may pre-judge the issue.

The CJ made the decision after an oral application made by lawyer Hanif Khatri Abdullah for Khairuddin who said interim bail should be granted under Section 388 of the Criminal Procedure Code where the court has the power to grant bail for non-bailable offence.

The other judges were Court of Appeal president Mohd Raus Sharif and Federal Court judges Ahmad Ma'arop, Hasan Lah and Ramly Ali.

The decision today follows a preliminary objection by the prosecution led by DPP Awang Armadajaya Awang Mahmud who said the reference is incompetent as there is no constitutional matter involved.

Hanif and lawyer Zainur Zakaria for Chang who led a team of lawyers representing the two said the court has the jurisdiction to hear the questions posed to determine the alleged charge of sabotage of financial institutions and whether it falls under Sosma.

Khairuddin and Chang, the latter who is the former political secretary to ex-premier Dr Mahathir Mohamad, are charged with allegedly sabotaging the financial and banking institutions of Malaysia by lodging police reports in Singapore, Hong Kong and United Kingdom.

Constitutional matter

The three questions posed were:

  • whether the charge under Section 124L is under Sosma and does it go against Article 149(1) of the federal constitution. Section 124L is under the Penal Code but also falls under Sosma.

  • if the answer to the above is affirmative, do they have the right to be released on bail (this means the charge will be heard at the High Court)?

  • if the answer is in the negative, should the charge and hearing be heard at the Sessions Court and not the High Court?

    • Despite the first question refering to a constitutional matter, Justice Arifin on hearing Hanif's submission, brushed off the matter initially following Awang Armadaya's preliminary objection when he cited the High Court order by Justice Mohd Azman Husin which did not mention Section 84.

    However, after hearing Hanif further, the apex court heard both his and Zainur's submissions.

    Zainur brought up the Article 149(1) which highlights legislation against subversion and action prejudicial to public order which Sosma falls under.

    Khairuddin was spotted wearing a neck brace in court. Those in the public gallery included his actress wife Umie Aida and his mother along with Chang's family.

    Lawyer Salim Bashir held a watching brief for the Malaysian Bar.