Can Comedy Club woman be charged in separate courts on the same facts?

 

From Hafiz Hassan

Crackhouse Comedy Club open mic participant Siti Nuramira Abdullah, who went viral for a performance deemed offensive to Islam, on Wednesday pleaded not guilty to a charge under Section 298A(1)(a) of the Penal Code.

The offence is for “causing disharmony, disunity, or feelings of enmity, hatred or ill-will, or prejudicing the maintenance of harmony or unity, on grounds of religion”.

Yesterday, it was reported that Siti Nuramira would be charged separately under Section 7 of the Syariah Criminal Offences (Federal Territories) Act 1997 in the shariah court.

The offence is for insulting, or bringing into contempt, or deriding, or ridiculing, or degrading the religion of Islam.

Even before the charge in the shariah court is laid against Siti Nuramira by the shariah authorities, Sisters in Islam (SiS) has called it untenable that she should be charged for a similar offence in another court using the same facts as this might be tantamount to double jeopardy.

“Article 7 of the Federal Constitution protects against double jeopardy. The principle of autrefois convict or acquit will be an issue when one of the courts has come to a decision, rendering the other redundant,” SiS said.

In the first place, there is no double jeopardy until there is a conviction or acquittal. As it is now, there is only a charge in the sessions court.

Secondly, the offence under Section 298A(1)(a) of the Penal Code is clearly different from the offence under Section 7 of the Syariah Criminal Offence (FT) Act 1997.

It is not out-of-ordinary that on the same facts, a person may be charged for different offences under different provisions of the same statute or different statutes.

That is why, for example, on the same or similar facts, an accused may be charged for corruption under the Malaysian Anti-Corruption Commission Act 2009 and for money laundering under the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001.

One would have thought that the bail amount for Siti Nuramira, who pleaded not guilty to the charge in the sessions court, should be of immediate concern. Bail was set at RM20,000.

As rightly pointed out by her lawyer R Sivaraj, the purpose of bail is not to punish the accused but to ensure their attendance at subsequent court hearings.

Section 389 of the Criminal Procedure Code says that the bail amount must be fixed with due regard to the circumstances of the case as being sufficient to secure the attendance of the person arrested, but shall not be excessive.

One would have, therefore, thought that recourse should be made to Section 389 for an application to a High Court judge to direct that the bail amount be reduced.

What say you, SIS? - FMT

Hafiz Hassan is an FMT reader.

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.