FEBRUARY 22 — A journalist called me up a few days ago inquiring about the nature of bail. I realise that many do not know the nature and purpose of bail.
When a person is charged in court with an offence, he may claim trial by pleading not guilty. This means that he feels he is not guilty of the charge and wants to defend himself.
The trial, however, will not start immediately as there is a process that the parties need to go through. One of which is that the prosecution would need to serve certain documents on the accused so that he can prepare his defence or maybe change his plea of guilt after viewing the documents.
In the meantime, however, if he is not allowed bail, then he will have to spend time in prison until his case comes up for trial. Usually, cases which carry a death penalty or life imprisonment will be denied bail. There can also be certain circumstances where bail maybe completely denied.
The conditions of bail is entirely at the discretion of the court. It depends on the circumstances of the case as being sufficient to secure the attendance of the accused in court but shall not be excessive. Hence, each case will depend on its own unique circumstances and sets of facts. The court has the discretion to set the amount of bail, and any other conditions, such as the impounding of passport.
The discretion of the court in deciding bail must be judiciously exercised. In other words, the judge must decide in accordance with the law. How well it is exercised will in turn depend on several complex factors hardly discussed in law schools or even legal journals. A knowledgeable, experienced, wise and focused judge will be more positioned to make a just decision on bail. I must add to this that common sense is equally important.
When bail is granted, a surety may need to post the bail as a bailor. It has been the practice in our courts that anyone who knows the accused well can be a bailor. There was an instance where a lower court judge had set bail. On the day when the bailer, who was a friend of the accused, had wanted to post bail, the counter informed him that as he was not a relative of the accused he cannot post bail.
The search for relatives who were willing to post bail, coupled with other inefficiencies, led the accused to being imprisoned for a further four days! The High Court obviously reversed the condition that only a relative can stand as surety for the accused. The friend was allowed to be the surety.
This is common sense because if it was the law that only relatives can stand as sureties how would any accused from an orphanage ever get bail? To me, injustice has already been done to the accused who had to experience the pain of extra time in prison even before the trial began.
I regard bail applications as an important part of the justice process. I understand that to a thinking judge, deciding on bail is a balancing act. The judge has to balance between what is “sufficient” to ensure the attendance of the accused in court with “what is excessive.” It is pointless ordering bail that the accused cannot afford or one that will not be a sufficient motivation for him to attend court.
I believe one of the main factors will be to assess the flight risk of the accused if bail is granted. In theory, however, every bail granted carries with it a flight risk. Hence, the assessment has to go towards the degree of flight risk and has to be considered on a case by case basis. There has, however, been very little arguments on the degree of flight risks in the courts and bail process proceeds almost mechanically most of the time.
In bail applications, I have come across wise judges who are mindful of the principle that in our justice system, a person is innocent until he is proven guilty. With this mindset, these judges, other than ensuring his attendance in court, ensure that the bail condition does not unnecessarily affect other aspects of the accused’s life.
It is for this reason that an accused may make an application for his passport to be returned to him for a specific period of time for specific purposes. In our courts, passports have been returned to the accused for travelling abroad for religious or business purposes, among other reasons.
An important area relating to the issue of bail is Article 5(1) of the Federal Constitution which states that “No person shall be deprived of his life or personal liberty save in accordance with the law.” Judicial discussions recognise that the “right to life” included the “right to make a living.”
Since the judge has the discretion to set bail conditions, I am of the humble view that these conditions should not unreasonably deny the accused his right to earn a living.
A wise judge who takes factors such as this into consideration will help to present the image of our courts as real dispensers of justice as the adage goes “justice must not only be done but must be seen to be done.”
The public will see the courts as not only firm but just and compassionate.
* Jahaberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at [email protected]
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
