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VIEWPOINT: Bloggers prosecution, denial of bail are overkill

First Published: 2:11pm, Jul 19, 2013 Last Updated: 2:11pm, Jul 19, 2013

Eric Paulsen Lawyers for Liberty are shocked and appalled by the heavy-handed criminal prosecution of Alvin Tan and Vivian Lee at the Kuala Lumpur Sessions Court yesterday that was further compounded when they were denied bail by judge Murtazadi Amran. They were charged under section 4 (1) (c) of the Sedition Act 1948 and Section 298A (1) (a) of the Penal Code for their Ramadan bak kut the greeting on their Facebook page and section 5 (1) of the Film Censorship Act 2002 for uploading pornography onto their blog. Although the charges under the Penal Code and the Film Censorship Act were non-bailable offences, in practice bail is normally given (as in cases of more serious offences like rape, criminal breach of trust, robbery, cheating, corruption, drug possession and manslaughter) unless clear evidence can be shown that the accused were likely to abscond, interfere with witnesses or reoffend. In this particular case, the duo had cooperated fully with the police and the Malaysian Communications and Multimedia Commission (MCMC) and no evidence was offered by DPP Noorin Badaruddin other than her flimsy statement that both accused were infamous and had a tendency to upload pictures that could arouse public outrage. This is wrong in law and by denying bail at this stage clearly showed bad faith and an attempt to punish the duo even before their guilt has been proven. While the duos posting is clearly insensitive and foolish, the reaction of the authorities from the police, MCMC, Attorney-Generals Chambers to senior government ministers smacked of overkill, disproportionality, double standards, selectiveness and bad faith when much more offensive and widely published statements made by pro-Umno figures Ibrahim Ali, Ridhuan Tee, Zulkifli Noordin, Mohd Noor Abdullah including inciting bloodshed and violence, insults against ethnic Chinese and Indians, their beliefs and cultures have not led to any arrest much less criminal prosecution. We call upon the authorities to discharge their duties in a professional manner, to exercise even handedness and restraint and not to overreact and make an example out of Alvin and Vivian in order to score political points. At the very least, they should be provided a fair trial and be granted bail pending their trial.

Eric Paulsen Co-founder & Adviser Lawyers for Liberty Tags:Lawyers for LibertyAlvivibloggersSedition Act

Criminal lawyers question why sex bloggers not given bail

B Y V . AN BA LA GA N J UL Y 19, 2013

What if the sex bloggers are found not guilty? The time spent in jail as remand prisoners cannot be reversed and this would amount to a travesty of justice for sex bloggers Alvin Tan and Vivien Lee. In pointing this out, criminal lawyers are aghast the infamous couple were not granted bail when they were charged yesterday with three charges related to their Ramadan bak kut teh greeting on their Facebook page and pornographic pictures in their blogs. "They are innocent until proven guilty," said Rajpal Singh. Rajpal said under normal circumstances bail would have been offered to those who were charged with similar offences faced by the two. "I feel bail should have been offered to the two because they did not plead guilty to the charges," he said. He said Sessions court judge Murtazadi Amran did not use his discretion to offer bail judiciously. Criminal law lecturer Datuk Baljit Singh Sidhu said Section 389 of the Criminal Procedure Code clearly states that bail is offered to secure the presence of the accused in court. He said case laws over the years had also emphasised that the court could offer bail to accused persons provided there was no attempt to interfere with witnesses. Other reasons could be that the accused did not abscond or tamper with evidence, he said. He pointed out that in non-bailable offences like murder, they were instances when the court had offered bail. In 2002, the High Court set a precedent by releasing murder accused Datuk Balwant Singh on RM500,000 bail in two sureties pending hearing. The reason being the accused was in his advanced age and that he suffered from medical complication. Balwant was imposed several other conditions, including to remain at home from 6pm to 8am.

Given this example, Baljit said he was perplexed when the Sessions court judge agreed with the prosecution that the couple had the tendency to upload content that stirred up public anger. "With respect, this suggestion is totally unfounded and an error of law was committed by the judge," he said. Lawyer Paul Krishnaraja said having read the court proceeding yesterday he too was stunned that the judge had applied the wrong principle in rejecting bail. "Was the judge reacting differently because the case generated wide publicity in the media?" he asked. He said the judge had the power to impose conditions in giving bail. Paul said the couple should file a motion before the High Court to secure their freedom pending the outcome of the trial. "They cannot be compensated for being remand prisoners if they are found not guilty at the end of the trial," he said. In the first charge, they were jointly accused of making a seditious posting on their Facebook page by uploading a photo of themselves eating bak kut teh (a pork dish) with the greeting Selamat Berbuka Puasa with bak kut teh (fragrant, delicious and appetising) together with the halal logo. The charge is under subsection 4(1)(c) of the Sedition Act 1948, which is punishable under subsection 4(1) of the same Act and read together with Section 34 of the Code Penal. If convicted they face a fine up to RM5,000, an imprisonment up to three years or both, and imprisonment up to five years for subsequent offence. In the second charge, Tan and Lee were accused of displaying pornographic pictures on their blog. They were charged under subsection 5(1) of the Film Censorship Act 2002, which is punishable under subsection 5(2) of the same Act which carries a fine of between RM10,000 and RM50,000 or imprisonment of up to five years or both. The two were accused of uploading on their Facebook page the same picture and comment which were likely to cause religious enmity between people of different faiths. They were charged under Section 298A(1)(a) of the Penal Code which carries imprisonment of between two and five years. - July 19, 2013.

Lawyers slam A-Gs no bail decision

Lisa J. Ariffin | July 19, 2013

Several lawyers disagree with the Attorney-General's decision to disallow bail for sex bloggers Alvin Tan and Vivian Lee.

PETALING JAYA: Several lawyers have today slammed the Attorney-Generals (AG) decision in disallowing bail for sex bloggers Alvin Tan and Vivian Lee who posted an insensitive Ramadan greeting on their Facebook, recently. The duo better known as Alvivi were charged with publishing indecent photographs, promoting enmity among the races and for sedition at the Jalan Duta Sessions Court yesterday. Tan and Lee were sent to the Sungai Buloh Prison and Kajang Prison, respectively. PKR lawyer Latheefa Koya said that the decision was overkill. They were charged with three offences and the fact that they were denied bail is certainly extreme, she told FMT. According to Latheefa, the court has the discretion to grant bail for non-bailable offences but not so for unbailable offences. In fact, bail can be granted to a person as of right. Non-bailable doesnt mean you cannot grant bail to a person and only in limited circumstances do you actually deny bail, she said. She added that the court should have instead allowed bail under strict conditions if it (the court) is worried that Alvivi will continue uploading more offensive material online. Bail is used to secure a persons attendance but when you go beyond that, it becomes a form of punishment. In this case, bail was denied to punish the person, she alleged. I hope their lawyers will appeal against the decision as this may lead to a dangerous precedent, she added.

Lawyer Faisal Moideen shared the same sentiments as there is no danger in granting bail. However, Faisal disagreed that the charges were harsh and pointed out that Alvivis lawyers could still appeal against the charges. It doesnt mean that you are prosecuted now, you cannot state your defence in court. The prosecution team must go to trial to prove their (Alvivis) guilt, he added. I understand the reservation about the use of the Sedition Act but it has been used before even during the Cow Head Protest in 2009. Unless it is repealed, the law must be abide to, he said. Lawyer Fadiah Nadwa Fikri disagreed with Faisal and said the prosecution was done arbitrarily but agreed that the court denying bail was uncalled for. Bail is as of right and the purpose is to ensure the accused attends trials and subsequent proceedings in court, she said. It is apparent that they are trying to punish Alvivi and the whole charge is arbitrary because if you look at the Facebook post, it is not something inciting violence. Yes, it is offensive but not a crime, she added. Fadiah said Alvivis action was of ignorance and insensitivity, but it does not warrant prosecution in court. She added that the case was politically motivated to gain the support of the Malays and Muslim community. This is clearly an abuse of the court process and is politically motivated. They are trying to get the support of the Malays and other Muslims by showing that they are staunchly defending Islam, she said. You have to remember that these people charged are not found guilty yet. The way everybody is behaving, it is as if the court has already convicted them. This is against the principles of law, she added. They have not yet been proven guilty. Why is everybody speculating? Right for AG to deny bail However, former Deputy Public Prosecutor (DPP) Shamsul Sulaiman agreed with the AGs decision to disallow bail. Harsh is not a legal term. What the A-G did was legal. Harsh is a matter of opinion, he said, referring to publics reaction following yesterdays hearing.

The argument here is that they are prone to doing it (publish offensive material), that is why bail was denied. However, their lawyers could always appeal and the High Court has the power to overrule the decision of the Sessions Court. Alvivi enraged the Malaysian society when they posted a Ramadan greeting with a picture of them eating bak kut teh (herbal pork soup). DPP Noorin Badarudin, Ishak Md Yusof and Nadia Ishak appeared for the prosecution with Choong Joo Tian, Wong Kim Ter and Adila Kamarulzaman for the defence team. The DPP argued that the duo should not be granted bail since the couple have the tendency to post materials that are disruptive to the society. In addition, the offence is non-bailable under the Penal Code. Tan, when asked by the court, said he had no access to the Internet because the Malaysian Communication and Multimedia Commission (MCMC) have confiscated his computer and barred his Internet access.

No bail for Alvivi an 'overkill', say lawyers

Not granting bail for infamous bloggers Alvin Tan and Vivian Lee is an "overkill", lawyers said today. It is also "extremely rare" for bail not to be granted, they said, be it for Sedition Act or Film Censorship Act offences, under which the duo were charged, especially in the case of "minor" offences. "It is an overkill... Even the 'pramugara terlampau' was allowed bail. Offences under the Film Censorship Act are not heinous offences," lawyer Amer Hamzah Arshad said, referring to the 2003 case involving a former flight attendant. In that case, Mohd Rizal Mat Yusof was granted bail of RM8,500 after he claimed trial for producing or making a pornographic VCD that allegedly showed several air stewardesses in lewd acts. However, Mohd Rizal was charged under Section 292 (a) of the Penal Code and not under the Film Censorship Act 2002.

OVERKILL: Alvin, Vivian may get up to 15 YEARS JAIL as Muslim hardliners gain upperhand
KUALA LUMPUR - Sex bloggers Alvin Tan and Vivian Lee were not only unable to escape being charged under the dreaded Sedition Act but it looks like Prime Minister Najib's government was "so confused" they decided to charge the duo under 3 separate laws.

The overkill may however be counter-productive as suspicion is already running high that the duo - while in the wrong - were being exploited and victims of a high-stakes power-play at Umno, Najib's political party. An MP from the Islamist PAS had a day ago warned against hypocrisy. "Yes, Muslims get very upset and angry when the non-Muslims insult Islam. But strangely, when Muslims insult other religions, everybody is quiet and no one speaks up," Dr Siti Mariah Mahmud, the MP for Kota Raja, had told a press conference at the Parliament lobby a day ago. Overkill: Pawns in Umno's high-stakes power-play? Alvin and Vivian had been expected to be charged under the Communications & Multimedia Act at the Kuala Lumpur Sessions Court at Jalan Duta on Thursday afternoon, sources close to the duo had told Malaysia Chronicle. "I know the minister has said there are 3 laws under which they can be charged but there is also the burden of proof. That's not so easy because these two have insulted and offended a lot of people but that may not be criminal. Basically there are only two laws to use - the Communications and Multimedia Act or the Sedition Act," said one of the sources. However, it appears there has been some late-minute change in plans. The duo were denied bail and remanded to prison after they were charged under three laws for their controversial Ramadan greeting posted on Facebook and for uploading sex video clips on the web last year. They were charged under the Sedition Act, the Film Censorship Act and the Penal Code at the Kuala Lumpur Sessions Court. They face a maximum jail sentence of 15 years each, with fines, if convicted of the three charges. "I think the AG will go for maximum sentence. This is clear overkill," MP for Batu Tian Chua told Malaysia Chronicle. Someone exploiting the issue? Alvin, 25, and Vivian, 24, had posted on Facebook a Ramadan greeting showing a photo of themselves eating what is believed to be 'bak-kut-teh', a herbal soup usually made with pork and which is a Chinese delicacy. Pork is taboo to Muslims and the greeting, which the couple had said was meant as a joke and not to offend, create a huge uproar. Despite their apology, calls rang from irate Muslims to have the duo jailed. However, some critics have accused extreme groups such as Perkasa and Jati as well as hardline members of Prime Minister Najib Razak's Umno party of exploiting the issue and fanning the flames. Ill-judged and insensitive their greeting is, the couple's action also comes smack in the middle of a heated political debate on Najib's government should retain the Sedition Act and introduce replacement laws for the repealed the Emergency Ordinance and Internal Security Act. Comments from the Inspector-General of Police Khalid Bakar that a case involving a 21-year-old Chinese man who was abducted while having drinks with his girlfriend also raised eyebrows, casting doubt once again on Khalid's neutrality and professionalism as a police officer.

Khalid had linked the abduction to the Alvin and Vivian incident. "We believe that the victim may have made a comment that hurt the feelings of a particular race or religious group. In light of the current heated environment caused by the controversial Facebook posting by bloggers Alvin Tan and Vivian Lee, the victim faced an unfortunate consequence" Khalid was reported as saying in the press. "We also believe this is linked to Alvin Tan and Vivian Lee's postings, in which the victim had responded to with comments. It aroused anger and the group carried out the attack on the victim. We are on the lookout for the rest of the attackers." Abducted for money by glue-sniffing group But the victim, Ng Mun Tatt, has since made public his account of the story. Ng, a cybercafe cashier, said his abduction had nothing to do with religion or insulting Islam. He said the words Saya hina Islam or 'I insulted Islam written on his upper body by his abductors were a ruse to confuse those who may have wanted to help him escape from them. He was abducted and beaten for ransom, and the abductors called his brother-in-law to demand RM5,000 in ransom. The amount was eventually reduced to RM3,000 and banked into Ng's account. However, when the abductors tried to retrieve the money, Ng could not recall his ATM password and this earned him another round of beating. They then took him to an oil palm estate where they tried to make him sniff glue. He pretended to comply and managed to escape when his abductors sniffed glue and got themselves high. Was Khalid scare-mongering and for whom? Khalid, known for his political inclinations and accused of subservience to top Umno leaders, has yet to explain his remarks. Based on Ng's account, Khalid's words would be untrue and unfair to Alvin and Vivian as they prepare to defend themselves in court. Speculation is also swirling that Khalid was again trying to please his political bosses and scaremongering by implying that Alvin and Vivian had sparked off a chain of race-hate attacks. As it is, depending on the charges, the duo stand to face between 2 to 4 years in jail if found guilty. The duo first became notorious in Malaysia and neighboring Singapore after releasing an explicit sex video of themselves last year.They have already withdrawn the controversial Ramadan greeting from Facebook and issued an apology. "We are asking forgiveness from all Malaysians for this incident during the fasting month which is holy to the Muslims. We did it as a joke. We had no intention to trivialize or to insult Islam or to incite racial conflict for that matter. We truly regret and apologize to all parties affected," Alvin and Vivian said in a joint video put up after coming under heavy public fire for their insensitive greeting.