Article 5 of the Federal Constitution of Malaysia states that when a person is arrested and accused of a crime, he or she must be brought before a magistrate or judge within 24 hours after arrest. He or she cannot be detained more than 24 hours unless a remand order is obtained from the magistrate to further investigate the said charge.

Either prior to the end of the 24 hours after arrest or at the end of the remand order, only then an application for bail may then be made, which can either be granted (with or without conditions) or denied. The critical point is that, at this stage, the person is only accused of a crime and not guilty of the crime concerned.

In the Malaysian criminal justice system a person is presumed innocent until tried and convicted in accordance with the law. It is fundamental that a person should not be denied his or her liberty. Simply put, wherever possible people should be kept out of prison until they have been convicted - only then should punishment begin.

A magistrate or judge is required to make a decision to consider whether there are any unacceptable risks that the accused will fail to appear at any proceedings for the charged offence. Unacceptable risks include committing another criminal act; endangering the safety of victims, individuals or the community; or interfering with witnesses and tampering with evidence.

After determining that no such unacceptable risks exist, bail must be granted without any unnecessary delay.

The amount of bail impose must also be reasonable and not meant for punitive purpose similar to a fine imposed as per in criminal statutes upon the conviction of a person. If there are risks, but these can be mitigated by imposing conditions (such as daily reporting to police), bail is granted. If not, bail will be refused.

Such decisions balance the presumption of innocence and an accused’s general right to liberty against the community’s interests in safety and confidence in the justice system.

Bail is not about innocence or guilt. Unfortunately that’s where the problem lies on occasions. In recent media coverage of selected high profile cases bail appears to symbolise judgment and serve as a proxy for guilt and punishment. Sometimes it is the reverse.

Apparently on as per media reports denying bail or excessive amounts of bail have become a way of expressing condemnation of the behaviour in which a person is alleged to have engaged or guilty of. In our system, condemnation and punishment should only ever happen after someone has been found guilty of a crime that they have been charged with. Bail should not be used to punish a person who is yet to be prosecuted for a crime.

Bail is designed to return a person charged with an act of crime in accordance to the law to its proper place in the criminal justice system. Bail is granted to ensure an accused person turns up in court to face charges against him or her without fail. Bail is also to ensure the protection of the community and witnesses. Bail decisions need to be made neither dispassionately without prejudice nor without fear or favour.

ASSOCIATE PROFESSOR DR P SUNDRAMOORTHY is a member of the Research Team on Crime & Policing, School of Social Sciences, Universiti Sains Malaysia.