19 July 2013

No bail for Alvivi an 'overkill', say lawyers

Not granting bail for infamous bloggers Alvin Tan and Vivian Lee is "overkill", said lawyers.

They said that it is also "extremely rare" for bail not to be granted, be it for offences under the Sedition Act or Film Censorship Act under which the duo were charged, and especially for "minor" offences.

"It is overkill...Even the ' pramugara terlampau ' was allowed bail. Offences under the Film Censorship Act are not heinous offences," lawyer Amer Hamzah Arshad said referring to the 2003 cases involving a former flight attendant.

In the 2003 case, Mohd Rizal Mat Yusof was granted bail of RM8,500 after he claimed trial to producing or making a pornographic video compact disc (VCD) that allegedly starred several 'air stewardesses' in lewd acts, titled ' Kehidupan Pramugara Yang Terlampau '.

However, Mohd Rizal was charged under Section 292 (a) of the Penal Code and not the Film Censorship Act 2002.

Tan and Lee were charged under subsection 4 (1)(c) of the Sedition Act 1948, Section 298A (1)(a) of the Penal Code, and subsection 5(1) of the Film Censorship Act 2002 for displaying pornographic pictures on their 'sex blog'.

The prosecution asked the sessions court not to grant bail as offences under the said subsections of the Penal Code and Film Censorship Act are non-bailable offences.

Amer Hamzah ( left ) added that by denying bail, the court is equating the offence with offences which carry the death penalty.

"Even in rape cases there is the possibility of bail. Sometimes when the accused knows the victim, bail may not be granted for fear of (victim) intimidation but we see bail granted even for the recent Sukma (athlete) rape case," he said.

'No evidence' given for denying bail

According to lawyer Syahredzan Johan ( below ), when an offence is "non-bailable", the granting of bail is at the court's discretion.

However, the decision should be made on legal principles, including on whether the offence was grave, or if there is possibility of flight risk or the tendency to interfere with witnesses.

He said in the duo's case, the offences were "relatively minor" and the prosecution did not put forth any evidence to show that the duo are a flight risk or that they will interfere with witnesses.

"In any event, the judge can always impose conditions to say that if they post similar messages, bail is revoked," he said in a text message to Malaysiakini .

Lawyers for Liberty co-founder Eric Paulsen added that the duo clearly did not pose a flight risk as they had "cooperated fully with the police and the Malaysian Communications and Multimedia Commission (MCMC)".

"There was no evidence offered by DPP Noordin Badaruddin, other than her flimsy statement that both accused were infamous and had a tendency to upload pictures that could arouse public outrage.

"This is wrong in law and by denying bail at this stage clearly shows bad faith and an attempt to punish the duo even before their guilt has been proven," Paulsen said in a statement.

Link to abduction case speculation

The statement of Attorney-General Abdul Gani Patail ( left ) linking his chambers' decision to a recent abduction case also indicates that outside elements may figure in the decision not to grant bail, Amer Hamzah said.

"It is speculation to say that it has anything to do with the case at all," he said, noting that public pressure may have factored into the decision.

Agreeing with his colleagues, lawyer Edmund Bon said public pressure and comments from politicians on both sides of the political divide may have factored into the decision to deny bail, "even if indirectly".

"There is a danger that the public is going after something that will not translate to justice," Bon said.

He added that the hype surrounding the duo may also affect the trial, and the defence could argue that Tan and Lee cannot get a fair trial.

"We have not seen this in Malaysia, but it could lead to the trial being stayed permanently or for the trial to be heard again under a different judge," he said.

Bar Council Human Rights Committee chief Andrew Khoo added that public interest should not be a consideration as to whether bail should be granted.

"It appears the intent was to send them to jail as an immediate punishment... before they are found guilty. The law should not be abused for this end," Khoo said when contacted.


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