Housewife challenges law that removes judge’s discretion to grant bail

S Sutha filed an application before the Court of Appeal, stating that Section 41B of the Dangerous Drugs Act (DDA) 1952, which removes the High Court’s discretion to hear a bail application, is unconstitutional.

PETALING JAYA: A housewife, who is facing a drug trafficking charge that carries the death penalty, has filed a legal challenge saying the court should be given the discretion to offer bail.

S Sutha, in her application before the Court of Appeal, said Section 41B of the Dangerous Drugs Act (DDA) 1952 was unconstitutional as it removed the judicial discretion of the High Court to hear such an application.

The housewife, who has been in remand at the Kajang prison since May 16, filed the constitutional challenge last Friday.

She has named the public prosecutor as respondent.

Sutha, 33 and her husband K Ravikumar, 31, were jointly charged with trafficking in 175gm of methamphetamine, better known as shabu, at a house in Bandar Mahkota in Cheras, Selangor,on May 15.

While under police investigation, Sutha delivered a baby boy who is now under the custody and care of a relative.

She lost in the first attempt at the Shah Alam High Court to be freed on bail on July 3.

Her lawyer Gabriel Susayan, who has affirmed an affidavit in support of the legal challenge, said it was the norm that bail would not be offered to those charged with trafficking due to the provision in Section 41B.

That provision, he said, explicitly restricted judges from exercising their judicial discretion to hear or even consider bail as trafficking carried the death penalty upon conviction.

Gabriel said Section 41B of the DDA also infringed on the guaranteed constitutional right of Sutha under Articles 5 and 8.

“Further, Article 121 (1) provides the court to act as check and balance on the executive and legislative arms of the government,” he added.

Gabriel said his client hoped the Court of Appeal would hear the bail application and grant her bail pending disposal of her case.

He said Sutha gave birth to the baby by caesarean section and she was in constant pain due to the inflicted cut through her belly and uterus.

“While in remand she is unable to breastfeed the baby. The applicant is also mentally affected due to the sorrowful misery,” he added.

On May 28 last year, the Federal Court allowed Samirah Muzaffar, the wife of the late Cradle Fund chief executive officer Nazrin Hassan, to be released on bail of RM500,000 with two sureties pending her murder trial.

This offence also carries capital punishment.

A five-member bench chaired by Azahar Mohamed imposed several conditions on Samirah, including surrendering her passport to the court and reporting to the police station once in two weeks.

He also said Samirah, 44, a former senior executive at Intellectual Property Corporation of Malaysia (MyIPO), must remain indoors from 6pm to 8am.

She is prevented from attending public places and functions, except for family and religious matters.

Samirah is also not to leave Kuala Lumpur or Petaling Jaya without leave of the court. - FMT