Presumption of innocence until proven guilty

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Graphic: freemalaysiatoday.com

Malaysians Against Death Penalty and Torture (Madpet) is appalled by the denial of bail to Gadek assembly member G Saminathan, who is facing two charges for alleged terrorism activities linked to the Liberation Tigers of Tamil Eelam.

He is charged with committing the offence of “Soliciting or giving support to terrorist groups or for the commission of terrorist acts” (Section 130J of the Penal Code) (New Straits Times, 29 January 2020; The Star, 29 January 2020).

Article 11(1) of the Universal Declaration of Human Rights states that “Everyone charged with a penal offence has the right to be presumed innocent until proved guilty according to law in a public trial at which he has had all the guarantees necessary for his defence.”

It is only just and right that anyone charged with any offence is presumed to be innocent until proven guilty and, as such, should be granted bail.

It is a gross injustice to deny bail simply because the offence one is charged with carries the death sentence, life imprisonment or a long prison term.

In this particular case, if convicted, the sentence for committing the offence under Section 130J of Penal Code, as it is now, is “.. shall be punished with imprisonment for life or imprisonment for a term not exceeding thirty years, or with fine, and shall also be liable to forfeiture of any property used or intended to be used in connection with the commission of the offence”.

There may be a drafting error in this law. At present, our reading says that if convicted, the sentence could be just a fine, any period of imprisonment but not more than 30 years plus forfeiture.

From media reports, the learned judicial commissioner was quoted as saying, “The court usually cannot grant bail for offences which carries life imprisonment or the death penalty…”

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He seems to have only considered the maximum sentence being life imprisonment, which today in Malaysia is 30 years in prison.

Based on media reports, even for murder, which carries the mandatory death penalty, bail has been granted in the past in Malaysia. Thus, even for offences that carry a sentence of life imprisonment, bail can and ought to be granted. In the case of the late Balwant Singh and in the case Samirah Muzaffar, both who of whom were charged with murder, which carries the mandatory death penalty if convicted, bail was granted.

Bail, after all, is merely to ensure that a person turns up for trial. In this modern age, there is also the possibility of an electronic tracking device, which makes it very difficult for anyone to abscond. Passports can also be retained, preventing accused persons from leaving Malaysia or Peninsular Malaysia.

Even for the more serious offence of committing a terrorist act, where death does not result, the sentence prescribed in Section 130C(1)(b): “…(b) in any other case, with imprisonment for a term of not less than seven years but not exceeding thirty years, and shall also be liable to fine….” Where death is caused, the sentence is death.

Madpet is against the imposition of any mandatory sentence, including the death penalty, life imprisonment or a fixed prison term that removes judicial sentencing discretion.

Pakatan Harapan must repeal draconian provisions in laws as promised

Several prominent politicians including DAP stalwart Lim Kit Siang, Penang Deputy Chief Minister II P Ramasamy and DAP central executive committee member Ronnie Liu were also present at the court to show support. Questions arise as to why other Pakatan Harapan leaders were absent, for after all G Saminathan is a Pakatan Harapan state assembly member.

Madpet also draws attention to the fact that Pakatan Harapan did promise in its 2018 election manifesto to abolish draconian provisions in the Security Offences (Special Measures) Act 2012 (Sosma), which it has failed to do until now.

Now, we already have a High Court decision on 29 November 2019 that declared Section 13 of Sosma, which denies bail for Sosma-listed security offences, as ultra vires to Articles 8 and 121 of the Federal Constitution.

A grave injustice is committed to any person denied bail, who is charged with an offence but is later found not guilty by the court. It affects not just the accused person but also his or her family and dependants.

It is unjust when many, especially the poor, languish in detention until their trial is over simply because they cannot afford to furnish bail. This raises the possibility that many innocent persons will simply opt to plead guilty and serve out definite prison terms rather than languish in detention for an indefinite period whilst their trial proceeds. Malaysia may want to consider what neighbouring Thailand does through its Criminal Justice Fund, which helps the poor to be out on bail, among others, during their trial. The money can also used for criminal defence.

Sosma also has draconian provisions that allow the use of evidence not admissible under our Evidence Act in trials and for the use of ‘special’ unfair criminal procedures to be used during trial. Sosma allows the scrutiny of a magistrate – through the requirement of remand hearings and remand orders before the police can further detain a suspect for more than 24 hours – to be bypassed.

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The Essential (Security Cases) Regulations 1975 (Escar), which was similar to the present Sosma, saw the Malaysian Bar and lawyers protesting in the name of justice and even calling for a boycott of cases that used Escar. Sosma ought to be repealed, not simply amended, if we believe in fair trials.

Madpet reiterates our call for the immediate repeal of the Security Offences (Special Measures) Act 2012 (Sosma). If a longer remand period, more than 14 days is required for certain serious offences, the maximum remand period for the purpose of investigations could be extended to 28 days, provided the requirement for further remand orders by magistrates after hearing both parties is maintained.

Madpet also calls for the abolition of all those “detrimental to parliamentary democracy” offences that were introduced by the Barisan Nasional government.

Madpet also calls for the Pakatan Harapan government to review and consider the repeal of terrorist offences, noting that our laws already criminalise all such actions. Malaysia must also review the list of current listed terrorist or criminal organisations, and publish it.

Madpet urges Malaysia to ensure the right to a fair trial, which includes the right to bail. The presumption of innocence until proven guilty must be put in practice.

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture (Madpet)

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