The constitutionality of the detention of Khairuddin Abu Hassan and his lawyer Matthias Chang under the Security Offences (Special Measures) Act 2012 (Sosma) for ‎the offence of allegedly committing financial sabotage, will be referred to the Federal Court.

Kuala Lumpur High Court judge Azman Hussin made the order and asked the matter to be heard as soon as possible, he said in his decision today.

He said Federal Court will be posed three questions.

The questions are:

  • 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.

Khairuddin and Chang appeared in court with their heads trimmed to almost bald and wearing white T-shirts.

Also present were Khairuddin's wife, Umie Aida, and his mother, Chang's family members, actress Erra Fazira and Pokok Sena MP, Mahfuz Omar.

The duo were represented by a team of lawyers led by Hanif Khatri Abdullah and Zainur Zakaria.

Khairuddin and Chang are charged under Section 124L of the Penal Code for allegedly attempting to sabotage Malaysia's banking and financial system with regard to filing reports on 1MDB abroad.

The pair were initially arrested under Sosma.

Earlier, Hanif informed the court that their clients had asked them to seriously look into citing attorney-general Mohamed Apandi Ali for contempt.

They had earlier applied that bail be given for Khairuddin, who is also former Batu Kawan Umno division vice-chief, and Chang and for the charge under Section 124L to be ruled as unconstitutional.

‘No factual basis’

Before the hearing adjourned, Chang urged the court to question whether their visits to police stations in three countries amounted to economic sabotage.

“I visited three countries with my client Khairuddin, while he visited two other countries on his own. How can the very act of visiting a country's police station be considered an attempt at (economic) sabotage within the meaning of the Penal Code?” he said.

“Leaving us in incarceration further will violate our liberty. Let us both not be allowed to be guinea pigs to test Section 124L,” said Chang who is also a lawyer said.

He also told the court how his client had been freed from remand after being held under Section 124C of the Penal Code only to be re-arrested sometime in late September under Section 124K and 124L under Sosma, and how he was also taken in by the police for representing his client.

Chang said while the police said they wanted to interrogate him under Section 124K, they did not do so and in fact, he was brought to court the next day and charged.

“There is no factual basis for us to be charged and I seek... the court's inherent jurisdiction to consider the factual matrix and let it end here and that the police action is untenable,” he said.

While he commended his lawyers for putting up good submissions, he pointed out that his counsel were not able to meet them while they were being remanded at Sungai Buloh prison.

The Bar Council's lawyer, Salim Bashir, also raised the Bar's concern over Chang being charged when he was in fact representing his client.

“The position of the Bar Council is that fundamental liberties must be protected against constitutional violation. The Bar objects to threats in the course and performance of Chang's legal duty as a solicitor as this amounts to client-and-counsel privilege where Malaysia had also voted a United Nation resolution that the rights of lawyers are to be protected and not harassed or prosecuted,” he said.