UPDATES: HUMAN RIGHTS DAY ARREST.
News Update (8): Judge allows bail, court now hears arguments on quantum
He went on to say that to refuse bail would be tantamount to punishing an accused before conviction and to send a message to society that unlawful assembly attracts preventive detention.
Ragunath Kesavan then submitted that the burden is upon AG to show why bail ought to be refused. Even in ISA cases, some form of evidence must be afforded to the court as there is no averment before the court that the 8 accused will be involved in further unlawful assembly.
Tommy Thomas argues that when deciding whether to allow bail or not, one should look at the Federal Constitution. Article 4(1) recognises the supremacy of the Constitution, and therefore the Penal Code and Police Act are subordinate to the Constitution. So, when discretion is exercised, the Constitution must be taken into account.
Fundamental liberties start from Articles 5-12. Art 5(1) says liberty of person should be upheld in accordance with law. Article 10(1)(a) refers to freedom of expression and Article 10(1)(b) refers to peaceful assembly. The words used are "peaceful assembly" and these are constitutionally enshrined subject to restrictions to Article 10(2) which are the security of Malaysia and public order.
Therefore, the burden is on the prosecution to show how security of Malaysia is threatened when 100 people assembled outside SOGO and walked about 400 yards and further if they are released on bail, how is the security of Malaysia will be worsened by granting the bail.
Tommy went on to say when court interprets fundamental liberties in Nordin Salleh v Dewan Undangan Kelantan, it says when testing the validity of state action, the court is required to look at the state action. Nordin Salleh says the court must look at the effect and consequence of the state action which is bail application. So, the effect would be personal liberty and Nordin Salleh compels the court to look at it.
With regard to the words "in accordance with law", Tommy says section143 which provides: "Whoever is a member of an unlawful assembly, shall be punished with imprisonment for a term which may extend to six months, or with fine, or with both."
From these words, the trial court is not obliged to imprison an accused. It is not mandatory imprisonment, and it will be a great injustice if someone who is not found guilty or fined, he is imprisoned.
Tommy submits these constitutional provisions should be taken into account whether to grant any bail.
AG then replied that if one follows Tommy's argument, then there is no issue even about arresting any person for simple reason that there is a likelihood of him being acquitted.
The issue is whether the judge to grant bail that is when refusing bail the nature of the offence will be continued or repeated.
AG argued that this is not a case of lawyers celebrating Human Rights Day and one would know just by looking at the names and this statement drew disapproval sounds from the lawyers present.
The judge then asked whether there is evidence to suggest that the 8 accused would repeat the offence. By looking at the names, the judge surmised that probably the only notorious name is R Sivarasa and then lawyers present clapped in response. The AG replied that that he was not able to guarantee that they would not repeat the offence. Again, this statement drew loud disapproval from the public gallery and the judge threatened to instruct the police to clear the gallery if those present did not keep quiet.
The judge further asked the AG whether he had any reasonable grounds to believe that they would repeat the act. Tan Sri Gani argued that despite all the warnings, they went ahead. Further, Tan Sri AG argued that no one was prevented by the police to enter the Bar Auditorium for the Human Rights celebrations.
In reply, P Valen submitted that AG should just charge them in court instead of opposing the bail applications.
After hearing all the submissions, the Judge said she would not accept the AG's arguments and would grant bail.
The court now hears arguments on the quantum.
MBW
*Please note that we do not have time to edit the report, and it may contain typos and errors.
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