IT IS laudable of Minister in the Prime Minister’s Department (Law and Institutional Reform) Azalina Othman Said to say that the right to bail is a fundamental and constitutional human right that the government respects without question.

“Any act, including administrative issues, that interferes with this right is viewed as flouting this cardinal principle,” she was quoted as saying. This followed reports that the legal affairs division in her ministry had been tasked to investigate the allegations that the early closure of a bail counter at a court complex forced six accused people to spend the long Hari Raya Aidilfitri weekend in jail.

The Federal Court in 2018 in the case of Hassan bin Marsom & Ors v Mohd Hady bin Ya’akop had stressed that as custodians of justice, the constitutional guarantee accorded to citizens under Article 5 of the Federal Constitution must be upheld by the courts.

Federal Court judge Balia Yusof said, “It is every judge’s sworn duty under the oath of office to uphold and protect the Federal Constitution. Indeed, it is opportune to recall the words of Lee Hun Hoe CJ (Borneo) in James Wong Kim Min Minister of Home Affairs, Malaysia & Ors v James Wong Kim Min [1976] 2 MLJ 245.

Page 251 of the report read, “One of the functions of the courts is to interpret the law. An inherent part of their function is to see that the executive acts within the law and does not encroach unnecessarily into the realm of liberty of the subject. In fact, Article 5(1) of the Constitution guarantees that no person shall be deprived of his liberty except in accordance with the law.

“If this constitutional guarantee is to have any real meaning at all, then it is imperative that the courts should intervene whenever the liberty of the subject is encroached upon not in accordance with the law.”

It is ironic that the liberty of no less than six people has been allegedly denied by an administrative action of the court registry.

If indeed the liberty of the six had been encroached upon and the courts are truly the final arbiter between the individual and the State and between individuals inter se, they must by necessity and strictly in accordance with the Constitution and the law be the ultimate bulwark against unconstitutional acts or excesses in administrative action. (See judgment of Lord President Salleh Abas in Lim Kit Siang v Dr Mahathir Mohamad [1987]) – April 23, 2023.

Hafiz Hassan reads The Malaysian Insight.

* This is the opinion of the writer or publication and does not necessarily represent the views of The Malaysian Insight. Article may be edited for brevity and clarity.