Setting high bail is punishment before trial, lawyers say

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Source: The Malaysian Insider

Cartoonist Zunar, charged with sedition at the Kuala Lumpur Sessions Court last April. There is a trend of judges at lower courts setting high amounts of bail on the accused, but lawyers say it is akin to punishment before the trial concludes. – The Malaysian Insider file pic, November 19, 2015.

Cartoonist Zunar, charged with sedition at the Kuala Lumpur Sessions Court last April. There is a trend of judges at lower courts setting high amounts of bail on the accused, but lawyers say it is akin to punishment before the trial concludes. – The Malaysian Insider file pic, November 19, 2015.

Recent cases where a high amount of bail is imposed on the accused have led lawyers to decry the punitive action by lower court judges even before the conclusion of trial.

The primary aim of bail, lawyers said, was to secure the accused’s attendance for the trial in exchange for release from jail.

They noted the RM70,000 bail for activist Khalid Mohd Ismath for 14 charges recently, and said the sprit of being innocent until proven guilty was violated when magistrates and sessions court judges imposed such high amounts of bail.

This also punished family members, relatives and friends who have to raise large sums of money to secure freedom.

Lawyer Fahri Azzat said bail should not be punitive because the accused person was presumed innocent until proven guilty under the present legal system.

“A high bail amount imposed on accused persons amounts to a punishment and taking away of the freedom should the money required not be posted,” he said.

Fahri was asked to respond to the Johor Baru High Court which on November 11 set bail for Khalid at RM70,000 for 14 charges related to a charge of insulting the Johor royalty.

In addition to taking his passport, judge Sofian Abdul Razak also ordered Khalid to report to the police fortnightly until the conclusion of the trial at the Sessions Court.

The sessions court had earlier refused to grant bail on grounds Khalid could abscond from Malaysia.

Khalid Mohd Ismath, slapped with 14 charges, was out on bail after friends and supporters collected a whopping RM70,000. – The Malaysian Insider file pic, November 19, 2015.Khalid Mohd Ismath, slapped with 14 charges, was out on bail after friends and supporters collected a whopping RM70,000. – The Malaysian Insider file pic, November 19, 2015.Khalid, 25, posted bail with the help of Parti Sosialis Malaysia and the Freedom Fund set up by civil society earlier this year to assist those penalised for exercising freedom of speech and assembly.

Another opposition activist, Lawrence Jayaraj Edwin John, was also slapped with a RM5,000 bail on November 13 for publishing a seditious article on the Federal Court’s decision to uphold Datuk Seri Anwar Ibrahim’s second sodomy conviction early this year.

The bail amount was equal to the maximum fine provided for the offence under the Sedition Act 1948, which also provided for a maximum jail term of three years, or both.

The father of seven children also faces an alternative charge under the Communications and Multimedia Act 1998, which provides a fine of up to RM5,000 or imprisonment for up to three years, or both.

Lawyer Eric Paulsen had appealed for a RM2,000 bail as Lawrence earned only RM900 a month and was the sole family breadwinner.

Personal bond

Lawyer M. Visvanathan said high bail amount was “ridiculous” when it matches the maximum fine prescribed under an offence.

“There are safeguards if the accused is absent during trial as the court could revoke or vary the bail amount after a proceeding,” he said.

Visvanthan said the court could also impose a personal bond against accused persons of high standing in society, such as elected representatives, instead of asking guarantors to post bail.

“In such a case, the accused will only be asked to post bail if he stays away from court during trial or breaks the law while the personal bond is in force,” he said.

Concurring with Visvanathan, Fahri said a personal bond could have been imposed on Sri Muda assemblyman Mat Shuhaimi Shafiei, who was charged with posting seditious material against the Sultan of Selangor four years ago.

Fahri said it was “mind-boggling” that the court imposed a RM20,000 bail when Shuhaimi was not a flight risk.

Ultimately, while it comes down to judicial discretion, lawyer M. Manoharan said subordinate court judges should remember their duty to uphold justice even in the matter of bail.

“They would have failed in their duty by imposing an excessive amount as this could be seen like a fine even before the accused has been tried,” he said.

Manoharan said the court could always impose other conditions like impounding the travel documents and instructing the accused to report to the nearest police station until the trial was over.

“Imposing a high bail should not be priority of the court because the family, friends and relatives of accused have to source the money to ensure the accused remain free until a verdict is pronounced.” – November 19, 2015.