PETALING JAYA: While a lot has been said about selected personalities being allowed to travel abroad despite facing charges in court, the claim that they are privileged is more a perception than reality.
According to legal experts, the fundamental aspect of the rule of law is that it is applicable to all.
Lawyer Kitson Foong said the perception that there are more “VIP criminals” in Malaysia than elsewhere could stem from the fact that many who are facing criminal prosecution also carry honorary titles.
“There is also an affinity among the press in Malaysia to focus on public figures such as business people, professionals, politicians and celebrities who have been charged in court,” he told theSun.
Taking the passport as an example, Foong said as far as the judiciary is concerned, it has absolute discretion on whether to require a person facing charges in court to surrender his passport as a condition for bail.
“It is done to reduce the ‘flight risk’ when the person is out of the court’s jurisdiction,” he said.
Foong was commenting on the controversy surrounding the decision to allow former prime minister Datuk Seri Najib Abdul Razak and his wife Datin Seri Rosmah Mansor to travel to Singapore to visit their daughter, who is expected to deliver her baby soon.
Foong said under the law, there are provisions to allow a person who is on trial to have his passport returned to him to enable him to travel out of the local jurisdiction.
“It also depends on whether the prosecution objects to it (and) whether the prosecution believes the reasons given are valid.”
He said the court must also be able to strike a balance between the risk of the individual fleeing, and his fundamental rights under the Federal Constitution to the freedom of movement, liberty and presumption of innocence.
“A person may get his passport back to travel ‘only to Singapore’ but in reality, Malaysian authorities are in no position to stop him from proceeding to another country after he has passed the Malaysian immigration checkpoint.
To ensure that these VIPs do not get away with breaching the law and fleeing to another country, Foong suggested that rules and regulations should be in place to allow the Immigration Department to immediately cancel the person’s passport if he violates the court’s ruling.
Litigation lawyer Etrus Tan said an individual, who wishes to travel while facing criminal charges, is required to show special or exceptional reasons in his application.
In the case of Supermax Corp Bhd group executive director Datin Seri Cheryl Tan Bee Geok, Etrus said granting the application is a matter of judicial discretion. She was granted permission to travel when she was still on trial.
Etrus said when evaluating the use of judicial discretion, established legal principles must be considered.
“In addition, the facts and evidence as well as prevailing circumstances must be properly evaluated to ensure fairness,” he added.
