APRIL 23 — It is laudable of Minister in the Prime Minister’s Department (Law and Institutional Reform) Datuk Seri Azalina Othman Said to say that the right to bail is a fundamental and constitutional human right that the government respects without question.
“Any act, including administrative issues, that interfere with this right is viewed as flouting this cardinal principle,” she was quoted as saying in the news portal Free Malaysia Today’s report that the legal affairs division in her ministry had been tasked to investigate the allegations that the early closure of a bail counter at the court complex forced six accused people to spend the long Hari Raya Aidilfitri weekend in jail.
One may recall that the Federal Court in 2018 in the case of Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop had the occasion to stress that as custodians of justice, the constitutional guarantee accorded to citizens under Article 5 of the Federal Constitution must be upheld by the courts.
Federal Court judge Balia Yusof said:
“It is every judge’s duty as he solemnly swears under the oath of office to uphold and protect the Federal Constitution. Indeed, it is opportune to recall the words of Lee Hun Hoe CJ (Borneo) in Re Datuk James Wong Kim Min Minister of Home Affairs, Malaysia & Ors v Datuk James Wong Kim Min [1976] 2 MLJ 245 at p 251 of the report:
“One of the functions of the courts is to interpret the law. An inherent part of their function is to see that the executive acts within the law and does not encroach unnecessarily into the realm of liberty of the subject. In fact, Article 5(1) of the Constitution guarantees that no person shall be deprived of his liberty except in accordance with the law.
“If this constitutional guarantee is to have any real meaning at all, then it is imperative that the courts should intervene whenever the liberty of the subject is encroached upon not in accordance with the law.”
It is ironic that the liberty of no less than six people has been allegedly denied by an administrative action of the court registry.
But, if liberty of the six has been encroached and the courts are truly the final arbiter between the individual and the State and between individuals inter se, they must of necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional acts or excesses in administrative action. (See judgment of Lord President Salleh Abas in Lim Kit Siang v Dato Seri Dr Mahathir Mohamad [1987])
* This is the personal opinion of the writers and does not necessarily represent the views of Malay Mail.
