When an accused should be released on bail


  • A Humble Submission
  • Monday, 19 Oct 2015

It was recently reported that Parti Sosialis Malaysia (PSM) activist Khalid Ismath was slapped with 11 charges under the Communications and Multimedia Act (CMA) and three under the Sedition Act - a total of 14 charges in relation to a Facebook posting he made recently.

Even more worrying was that Khalid was not granted bail by the Johor Baru Sessions Court, which means he will remain in detention until his trial.

The denial of bail for charges under these two Acts are almost unheard of - for all cases in recent memory, the accused would be granted bail with at least one surety.

Bail is not something that should be taken lightly. By not granting bail and detaining the accused until the conclusion of the trial, the personal liberty of the accused is denied and his freedom of movement restricted.

He is essentially incarcerated even before he is convicted.

The cornerstone of the criminal justice system - that a person is innocent until proven guilty - means that a person should not be denied his liberty before charges against him are proven.

Where a person is charged with a bailable offence, he is entitled to be released on bail as of right. In the case of a non-bailable offence, such as those under the Sedition Act and the CMA, this discretion lies with the Court.

The Court must be satisfied that bail should not be granted for Khalid Ismath. Some of the matters to be considered in exercising its discretion include whether there are reasonable grounds for believing the accused guilty of the offence, the nature and gravity of the offence charged, the severity and degree of the punishment and the danger of the accused absconding if bail is granted.

Also to be considered are the character, means and standing of the accused, the danger of the offence being continued or repeated, the danger of witnesses being tampered with, the opportunity to the accused to prepare his defence and the long period of detention and the probability of further period of delay.

The discretion must be exercised upon a consideration of the cumulative effect of all the factors.

In Khalid's case, it has been reported that one of the factors why he was denied bail was because an accused in an another case, Ali Abdul Jalil, had fled to Sweden. With respect, this should not have any bearing on the case.

Ali Abdul's case is totally unrelated to Khalid's, and the considerations enumerated above must be specific to that of the accused in that particular case. What must be shown is that Khalid himself is a flight risk and that there is every possibility he will abscond if released on bail, not other accused.

With regards to the nature and gravity of the offence, the prosecution would certainly argue that the offence of sedition is a serious one. Even if we take that to be the case, there must be consistency in the approach when dealing with such offences.

If bail has been granted for other accused in all other instances, then it should mean that the nature and gravity of sedition and offences under CMA are not enough to deny bail for the accused. Even Zunar, who was slapped with nine sedition charges before this, was granted bail.

There may be other matters that the Court had to consider in Khalid's case, which has not been reported. However, it does appear that on the face of it, there is no good reason why he should not be allowed bail.

It has been reported that Khalid's lawyers will be seeking a revision of the Sessions Court order. It is hoped that the High Court will revise the order of the Sessions Court in denying Khalid Ismath his release on bail.

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