On Oct 28, 2015, lawyer Kamal Hisham Jaafar’s family sent a memorandum to the Malaysian Federal Parliament to demand his release on bail. Kamal was arrested in Singapore on Sept 2, 2015 and brought to Johor.
He was charged with four counts of abusing his position as a company director of Southern Ads Sdn Bhd in connection with the lease of a business space at JB Sentral between 2009 and 2011. He is in police custody in Johor for weeks now after he was denied bail.
Following his arrest, Khalid Ismath, a Parti Sosialis Malaysia (PSM) activist expressed his disapproval of Kamal’s arrest on social media and he too followed suit. Khalid has 11 charges under Communications and Multimedia Act 1998 and three charges under Sedition Act 1948.
Adopted as a Prisoner of Conscience by Amnesty International, he has been in police custody in Ayer Molek for 23 days now and was put in a solitary confinement after being denied bail. Some Members of Parliament have demanded an immediate release of Khalid. Both 2Ks’ cases are related to the royal family of Johor.
The following are 10 reasons why the 2Ks (Kamal&Khalid) should be released immediately :
1. Getting freed on bail is a human right
There are different types of offences under the law - bailable and non-bailable. Depending on which laws are applicable, there are times when non-bailable offence under the law can be bailabe under the statutory discretionary of the court. Hence, if this is the case, there is no way that bailable offences should be denied from being granted bail for whatever reason!
In fact, the cases of the 2Ks are bailable offences and nothing serious. The purpose of the bail is to ensure that the accused attend the court proceedings once they are released. Kamal’s family willingness to pay RM700 000 amount of bail (but later this was right was denied) showed their assurance that Kamal will attend the trial at court once he is released.
The denying of bail jeopardises the right of the accused to defend themselves. This abuse of power is clearly against the law and most importantly it breaches the rights of the accused.
2. The accused is innocent until proven guilty
This is a very crucial principle in any court case. The allegation made against the 2Ks should be supported with sufficient evidence to prove whether they are guilty or not. Until that happens, both of them are completely innocent and should not be treated as criminals. This is to ensure that the judicial system protects the rights of individuals.
At the same time, it is to hinder the abuse of the law and power because no one can simply make an allegation without a valid proof, let alone the system allows the punishment of the innocent. In the case of Khalid and Kamal, it seems that they have been proven ‘guilty’ even though the court proceedings have just started and not yet made any significant progress.
3.The detention undermines the due process of law
Our judiciary was established based on the laws and procedures to serve justice. The breach of any of the processes in the proceeding may open to more abuses of power and this will affect the whole process of serving justice. This abuse should not be tolerated at all, let alone allowed to continue. Eventually, the law and constitution will not be respected and upheld and ultimately the judiciary will be corrupted entirely.
As a constitutional monarchy country, the constitution and law are placed above anything else in Malaysia. No matter how sensitive or closely related the cases are to any particular individual or group, the due process of law should take place accordingly without any interference from anyone.
4.Court proceedings will be misled
It was reported by the family members that Kamal and Khalid were put in solitary confinement. There is a high tendency for the accused to give information that is deemed to be desirable by the police/authorities.
We have to consider the psychological effects that the accused experience the moment their rights are denied. Under such circumstances, the accused may not tell the truth - I am not suggesting that whatever statements given by Kamal or Khalid are false, but my point is that under such pressure and denied rights, anyone will be inclined to tell the desirable information by the authorities for the sake of getting away from them.
5. The human rights abuses may be exacerbated
Both Kamal and Khalid have been treated as criminals even at the early stage. The fact that they were denied bail showed that more abuses may happen in the future. The early stage of any trial is the most crucial one because it sets the direction of the case. Who can assure that the whole proceeding especially at the later stage when it comes to making judgment is free from any more abuses?
6. The refusal of bail by the court will be a bad binding case precedent
Both incidents happening to Kamal and Khalid can create a precedent to the other cases in the future. The refusal of bail by the high court will be a bad binding case precedent for lower courts. This means that in the future, the same incident could happen again because it follows the court rulings made for the 2Ks. If this happens, we will see more human rights abuses in the future which involve many other people and we could be the next victim.
7. Each court case should be handled separately
One of the main reasons why Khalid was denied a bail is because the prosecutor was afraid if Khalid would flee Malaysia just like Ali Abd Jalil. To get things clear, Khalid’s case and Ali’s case are two different cases and have no connections to each other. It is very unacceptable and unjust to deny Khalid’s rights just because someone else’s has ‘escaped’ from being tried at court.
The court should handle Kamal’s and Khalid’s cases independently because each case has its own unique chronology.
8. Freedom of speech and dissent should not be censored
Khalid was alleged to have some connections with Kamal through a Facebook page called ‘Solidariti untuk Peguam Kamal Hisham Jaafar’. Even if he has any connection to the Facebook page, what is so wrong of campaigning to free Kamal as a concerned citizen? Khalid was exercising his rights to express his opinions and thoughts through social media. Given that this is the platform to reach the wider public, Khalid had every right to discuss about the issue online.
If the public especially youths are being barred from expressing their opinions in public forum, it is afraid that they will end up joining the extremist groups as claimed by Dr Jeyakumar Devaraj, the MP for Sungai Siput.
9. No issue of flight risk (absconding)
There is no issue of flight risk or the possibility of fleeing the country. Fleeing a country and becoming an asylum-seeker or a refugee is not easy at all. Khalid has a wife and a baby daughter residing in Malaysia whereas Ali Abd Jalil has none. Therefore, it is extremely difficult for him to flee Malaysia. Just ask thousands of Rohingya or the 1,110 existing Syrian refugees in Malaysia on how difficult it was for them to even consider fleeing their home countries!
In the case of Kamal, he already surrendered his passport on Sept 8, 2015 and he was required to report at Kampung Melayu Majidee Police Station every week. With the circumstances facing both 2Ks, it is impossible that the flight risk even exists.
10. Draconian law should be abolished
In 2012, Najib Abdul Razak had already promised that the Sedition Act which was created in 1948 during the British colonial era would be abolished. Unfortunately, the prime minister broke his promise by not just retaining the Act but also fortified it by adding certain sections including regarding the royalty. Breaking his promise is one thing and retaining a draconian law is another.
Firstly, the definition of being seditious is very broad and unpredictable. Based on the previous cases, the allegations were very selective and politically motivated. Secondly, the other existing laws can already address the issues or threats that the Sedition Act ‘covers’ (which is very vague). No one should ever be charged with Sedition Act any more and Khalid is the latest victim of this cruel Act.
Conclusion
Kamal Hisham Jaafar and Khalid Ismath may have different charges against them and should be dealt in different ways. However, their fundamental rights as citizens should be protected under the law so that no one can abuse its power.
A person remains innocent until proven guilty. One of the 2Ks or both of them may be already freed by the time the article is published. But there are many aspects that the authorities and the public need to learn from these cases so that no more rights abuses recur in the future to anyone.
