Umar freed, yes but who, now, will preserve, protect and defend our constitutional rights?

Posted on December 24, 2012

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Whoever voluntarily obstructs any public servant in the discharge of his public functions, shall be punished with imprisonment for a term which may extend to two years, or with fine which may extend to ten thousand ringgit, or with both - Section 186, Penal Code ( Revised 1997 ).

This was the charge under which Umar was convicted in the Magistrates Court last Friday, fined RM1,000 and sentenced to a month’s imprisonment.

I was not in court in the course of the trial or when he was found guilty and sentenced so cannot comment on the same.

I got this from Malaysianinsider today.

Majistret Zaki Asyraf Zubir menjatuhkan hukuman itu ke atas Umar yang juga merupakan pelajar tahun akhir sebuah kolej swasta dan hukuman penjara selama sebulan sekiranya dia gagal menjelaskan denda berkenaan.

Dalam penghakimannya, Zaki Asyraf berkata, tertuduh tidak sepatutnya berada terlalu dekat dengan rakannya, Mohd Fahmi Reza untuk mengambil gambar sehingga menghalang penguatkuasa DBKL menjalankan tugas.

The first paragraph is clearly wrong because, as I understand it, the custodial sentence is in addition to the fine and was not to take effect only in the event Umar failed to pay the fine.

If the second paragraph is an accurate account of what the Magistrate said in delivering his judgment, it would suggest that the factual matrix that formed the basis of the offence of obstruction by Umar was that of being to close to Fahmi Reza as he sought to take photographs of what was happening at the material time, thus impeding the DBKL officer from carrying out his duties.

Note that he was not demonstrating or resisting arrest or wilfully interfering or preventing a public officer from carrying out his duties.

He was taking photographs of what was happening.

The Magistrate refused to stay the order of imprisonment pending an appeal against his decision.

Now, whilst I was essentially a civil litigation practitioner during my 20 years of practise, having only handled a few criminal cases, I dare say that that in all those years, I have never heard of a stay of execution of a custodial sentence pending appeal being refused, especially in the case of a misdemeanor such as this, especially if there is  no case advanced by the prosecution of a risk of flight from jurisdiction by the one convicted.

This refusal of the stay sought was bizarre, to say the least.

This morning Umar’s application for a stay of execution of that sentence of imprisonment came up before Justice Amelia Tee in the Kuala Lumpur High Court.

“I, having been appointed to the office of Judge of the High Court of Mlaya do solemnly swear / affirm that I will faithfully discharge my judicial duties in that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.”

This is the oath, as laid out in the 6th Schedule of the Federal Constitution that Justice Amelia Tee, pursuant to Article 124(2) was required to, and must have taken before she commenced to sit as a judge of the High Court.

To preserve, protect and defend the Constitution.

That oath was binding on her this morning when she heard Umar’s application.

Subject to Clauses (2), (3) and (4) -

(a) every citizen has the right to freedom of speech and expression;

(b) all citizens have the right to assemble peaceably and without arms;

(c) all citizens have the right to form associations.

That’s what Article 10(1) of the Federal Constitution guarantees to Umar and to every citizen.

That, amongst others, was what Justice Amelia Tee took oath to preserve, protect and defend.

I got to court late this morning.

Proceedings had concluded.

Yes, Umar had been given his stay, I was told, but the judge imposed conditions.

Bail was increased to RM5,000.

And Umar was to not go near any demonstrations or gatherings such as that which precipitated the actions of the DBKL officers on the morning that Umar is alleged to have committed the offence for which he now stands convicted.

Did Justice Amelia Tee impose this condition for his release this morning?

Malaysiakini reports thus :

“Tee also required Umar (right) to attend subsequent court appeal proceedings and to avoid being involved in other similar offences.

“If he is found so (involved in similar offences), the prosecution is to apply to immediately revoke his bail. Then he (Umar) will have to serve his sentence immediately,” she said.

Judge Tee also directly addressed Umar’s father Mohd Azmi Mohd Amin in the gallery, advising he keep his son in check during the bail period.

I expect Umar will be freed from Kajang Prison before the close of court business today.

Your guess is as good as mine as to when his appeal will be heard.

Whenever that is, has the stay order this morning effectively injuncted Umar, for an indefinite period, from exercising some of those constitutional rights, the exercise of which could lead him back to prison again?

If the order last Friday was bizarre, this morning’s was, in my view, without any regard to that oath of office.

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