PETALING JAYA: A retired judge said the Federal Court was absolutely correct to grant bail to a former property agent though he was facing a charge classified as a security offence under a federal law.
Gopal Sri Ram said it was a settled law based on a Privy Council decision about 20 years ago that the discretion to grant bail was with the judiciary.
He said any provision of the law that deprived the court of its power to hear bail applications was unconstitutional.
“Therefore, the Federal Court was entirely correct in ignoring a restraint on bail imposed by Parliament,” said Sri Ram who retired as a Federal Court judge.
Sri Ram said the purpose of bail was to secure the attendance in court of the accused person.
He said this after a three-member Federal Court bench chaired by Chief Justice Tengku Maimun Tuan Mat yesterday opted to use Section 388, a general provision under the Criminal Procedure Code, to allow bail to Koh Chin Wah.
The 56-year-old had spent three and a half years in remand as his alleged offence of smuggling migrants is listed as a security offence under the Security Offences (Special Measures) Act (Sosma), a procedural law.
Koh was charged with trafficking Taiwanese national, Peter Loo Chin Choy, using a Malaysian passport at the Kuala Lumpur Immigration Department on July 3, 2017.
He was charged under Section 26A of the Anti-Trafficking in Persons and Anti-Smuggling of Migrants Act 2007.
Lawyer Rajpal Singh submitted that Section 13 of Sosma was inconsistent with Article 121 of the Federal Constitution as it had removed the judicial discretion of the court to consider bail.
“The court can hear and decide to allow a bail application even though an accused is detained under Sosma,” said Rajpal who was assisted by Harpal Singh.
The lawyer brought to attention a High Court ruling last year that judges could consider bail applications even if the accused was charged under a terrorism-related offence.
He was referring to Justice Mohd Nazlan Ghazali’s statement that the judiciary, an independent arm of the government, existed to check any excesses by the legislature and executive.
Meanwhile, lawyer Muhammad Rafique Rashid Ali said all those languishing in prison for allegedly smuggling migrants could apply for bail and remain free until the court made a finding.
“One is innocent until proven guilty and a bail denial is a restraint on one’s liberty,” he said, adding that he did not think human smuggling was a serious threat to national security.
Rafique said the courts could impose a multitude of conditions on the accused to be on bail.
“The court can also order the accused to remain indoors for a specific period or attach an electronic monitoring device,” he said.
Rafique said he believed the court also granted bail to Koh since there were reports of a rise in Covid-19 cases among prisoners.