Presumption of Innocence Until Proven Guilty and the Right to Bail Must Be Recognized and Respected (MADPET)

Media Statement – 29/1/2020

Presumption of Innocence Until Proven Guilty and the Right to Bail Must Be Recognized and Respected

MADPET (Malaysians Against Death Penalty and Torture) is appalled by the denial of bail to Gadek assemblyman G. Saminathan who is facing two charges for alleged terrorism activities linked to the Liberation Tigers of Tamil Eelam (LTTE). He is charged for committing the offence of ‘Soliciting or giving support to terrorist groups or for the commission of terrorist acts’ (Section 130J Penal Code).(New Straits Times 29/1/2020; Star 29/1/2020)

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 and/or a long prison term.

In this particular case, if convicted, the sentence for committing the section 130J Penal Code offence, 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 saying, “The court usually cannot grant bail for offences which carries life imprisonment or the death penalty,…” He seems to have only considered the maximum sentence being life imprisonment, which today in Malaysia is 30 years in prison.

MADPET is of the opinion, based on media reports, that the judge erred, as even for murder, which carries the mandatory death penalty, bail has been granted in the past in Malaysia. Thus, even for offences that carries the sentence of life imprisonment, bail can and ought to be granted. In the case of the late Datuk Balwant Singh, and the case Samirah Muzaffar, both who were charged with murder that 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, where there is also the possibility of 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 and/or one 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 Dr 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 Assemblyperson.

MADPET also draws the 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 Now 2019, that declared that Section 13 of SOSMA, which denies bail to SOSMA listed security offences, was 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/her family and dependents.

It is unjust when many, especially the poor, languish in detention until their trial is over simply because they simply 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 neighboring Thailand does through its Criminal Justice Fund that helps the poor be out on bail, amongst others, during their trial. The money can also used for criminal defence.

SOSMA also have draconian provisions that allows 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 to be by-passed the scrutiny of the Magistrate by the requirement of remand hearing and remand orders before the police can further detain a suspect for more than 24 hours.

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

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 was introduced by the Barisan Nasional government also be repealed.

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

For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)

  



High Court denies bail for Gadek rep over LTTE-related charges

Nation

Wednesday, 29 Jan 2020 4:41 PM MYT

By NURBAITI HAMDAN

KUALA LUMPUR: The High Court here has dismissed an application for bail filed by Gadek assemblyman G. Saminathan who is facing two charges for alleged terrorism activities linked to the Liberation Tigers of Tamil Eelam (LTTE).

In his decision here on Wednesday (Jan 29), Judicial Commissioner Ahmad Shahrir Mohd Salleh said that Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) was still in the statute books despite being declared unconstitutional by High Court judge Justice Mohd Nazlan Mohd Ghazali.

JC Ahmad Shahrir said although he was bound by Justice Nazlan's ruling, he had to consider that Section 13 of Sosma was still in effect.

He added that LTTE had been classified a terror group by the government and the Home Minister had yet to de-gazette this.

“The LTTE is gazetted as a terrorist group and supporting it is an offence and punishable under Section 130J of Penal Code, which carries life imprisonment.

“The court usually cannot grant bail for offences which carries life imprisonment or the death penalty, ” he added.

On Nov 29 last year, Justice Nazlan declared that Section 13 of Sosma was ultra vires to Articles 8 and 121 of the Federal Constitution.

A woman, believed to be Saminathan's wife, was seen sobbing when proceedings ended.

Lawyer Ramkarpal Singh, who represented the accused, told reporters that they accepted the decision.

“We accept the decision although we are disappointed. We will consider our options and our next step, ” he added.

On Jan 20, Saminathan, who is also a Melaka exco member, claimed trial to supporting the LTTE at a function held at Dewan Kasturi Ayer Keroh, Jalan Utama, Taman Ayer Keroh Heights in Melaka, from 8.30pm to 10.50pm on Nov 28,2018.

He was charged with possession of items with elements of terrorism or related to the LTTE in a mobile phone at the office of the Unity, Human Resources and Consumer Affairs executive councillor at the Chief Minister's Department at Kompleks Seri Negeri, in Melaka, at 10.25am on Oct 10,2019. - Star, 29/1/2020

Gadek assemblyman facing LTTE charges has to remain in jail, bail refused

G. Saminathan will remain in prison as the High Court dismissed his bail application. - NSTP/File pic

By Rahmat Khairulrijal

January 29, 2020 @ 4:56pm

KUALA LUMPUR: Gadek assemblyman G. Saminathan who was charged with supporting terror group Liberation Tigers of Tamil Eelam (LTTE) has to remain in prison as the High Court dismissed his bail application today.

A woman believed to be the accused’s wife could not hold back her tears after Judicial Commissioner Datuk Ahmad Shahrir Mohd Salleh delivered his decision in a packed courtroom.

The woman, who was pregnant, cried and hugged Saminathan after the proceedings before she was calmed by her family and friends.

Ahmad Shahrir in his judgment said that Section 13 of the Security Offences (Special Measures) Act 2012 (Sosma) was still in the statute even though it was declared unconstitutional by High Court judge Mohd Nazlan Mohd Ghazali.

“I am bound by Nazlan’s declaration but I have to consider that Section 13 of Sosma is still in the statue,” he said.

On Nov 29, Nazlan declared that Section 13 of Sosma was ultra vires Articles 8 and 121 of the Federal Constitution.

Nazlan in his judgment said the judicial powers or the power to adjudicate in civil or criminal matters were exclusive of the courts.

Lawyer Ramkarpal Sing with DAP stalwart Lim Kit Siang seen at the Kuala Lumpur High Court. - NSTP/Mohamad Shahril Badri Saali

Ahmad Shahril said LTTE was still gazetted as a terrorist group by the Home Ministry, even though there were claims that it has been disbanded in its origin country, Sri Lanka.

“Our country still gazettes LTTE as a terrorist group and offence of supporting it is punishable under Section 130J of Penal Code which carries life imprisonment.

“The court usually cannot grant bail for offences which carries life imprisonment or death penalty,” he added.

Counsel Ramkarpal Singh who represented the accused, when met after the proceedings, said they would consider filing an appeal against Ahmad Shahrir’s decision.

“We accept the decision although we are disappointed (with the ruling)… we will consider our next options,” he said.

Deputy public prosecutors Rohaiza Abd Rahman and Mohd Firdaus Abu Hanipah prosecuted.

Several prominent politicians including DAP stalwart Lim Kit Siang, Penang Deputy Chief Minister II Dr P Ramasamy, and DAP central executive committee member Ronnie Liu were also present at the court to show support.

Saminathan was charged with supporting the LTTE at a function held at Dewan Kasturi Ayer Keroh, Jalan Utama, Taman Ayer Keroh Heights here from 8.30 pm to 10.50 pm on Nov 28, 2018.

He was also charged with possessing items with elements of terrorism or related to the LTTE in a mobile phone at the office of the Unity, Human Resources and Consumer Affairs executive councillor at the Chief Minister's Department at Kompleks Seri Negeri here at 10.25 am on Oct 10 last year.

On Nov 1, Sessions Court Judge Rozina Ayob ruled that there was merit in the application made by the defence under Section 13(2) of SOSMA to refer constitutional matters concerning bail to the High Court.

The court allowed the applications of Saminathan and 11 other men to refer constitutional issues on bail to the High Court.

Besides Saminathan, the others are Seremban Jaya assemblyman P. Gunasekaran, 60; taxi driver V. Balamurugan, 37; postman S. Teeran, 38; scrap metal trader A. Kalaimughilan, 28; chief executive officer of a corporation S. Chandru, 38; technician S. Arivainthan, 27; storekeeper S.Thanagaraj, 26; security guard M. Pumugan, 29; a national secondary school teacher in Telok Panglima Garang, Selangor, Sundram Renggan @ Rengasamy, 52; DAP member V. Suresh Kumar, 43, and businessman B. Subramaniam, 57.

They were charged in separate Sessions Courts here and several states on Oct 29 and 31 with allegedly having links with LTTE. - New Straits Times, 29/1/2020