Making legal sense out of the denial of bail to businessman B. Subramaniam — Hafiz Hassan

FEBRUARY 10 — In terms of bail, the general law on criminal procedure, the Criminal Procedure Code (CPC) classifies offences into bailable offences and non-bailable offences.

Bailable offences are offences where bail is of right. In other words, the accused is entitled to be released on bail. These are generally the less serious offences.

Non-bailable offences are offences where bail is at the discretion of the court. The accused has no right to be released on bail. Nonetheless, he may be released on bail if the court so exercises its discretion. These are the more serious offences.

When the Penal Code (PC) was amended way back in 2003 to deal with acts of terrorism, Chapter VIA on offences relating to terrorism was inserted. This included section 130J (soliciting or giving support to terrorist groups or for the commission of terrorist acts).

Consequential amendments were also made to the CPC to classify offences under Chapter VIA of PC as non-bailable offences.

When the controversial Security Offences (Special Measures) Act was passed into law in 2012, offences relating to terrorism, among others, were included in the First Schedule of Sosma, thereby making such offences as ‘security offences’ under Sosma.

Sosma was declared the law applicable to security offences — it still is the applicable law, except arguably section 13. Sub-section (1) provides that bail “shall not be granted to a person who has been charged with a security offence.” This makes security offences as unbailable offences — a third category of offences which are not unknown to lawyers. These are offences where the accused is not allowed bail and the court has no discretion to grant bail.

When High Court judge Mohd Nazlan Mohd Ghazali held that section 13 of Sosma was unconstitutional, security offences should revert to being non-bailable under the First Schedule of CPC.

Now that High Court judge Mohamed Zaini Mazlan has disagreed with the argument that section 13 of Sosma is unconstitutional, it follows that security offences, including section 130J of PC, are unbailable offences.

That being the case, businessman B. Subramaniam is rightly not allowed bail as the court has no discretion to grant bail.

Lawyers will tell you that a High Court judge is not bound by the decision of another High Court judge. However, the judge may do so as a matter of judicial comity, that is, out of deference and respect.

But Justice Mohamed Zaini Mazlan has chosen not to be bound by his brethren judge — which he is entitled to.

Which makes one wonder why the decision by Justice Mohd Nazlan Mohd Ghazali was not appealed against by the prosecution. The matter would have come before the Court of Appeal for a decision which would have been binding on all judges of the High Court and the subordinate courts in Malaysia.

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail.

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