> Case should remain in the Magistrates' Court
A My Journal Commentary
A lawyer representing blogger Raja Petra Kamarudin submitted at the Kuala Lumpur Sessions Court today that it was unconstitutional for the criminal defamation case to be heard there as it should be dealt with at the Magistrates' Court where he was charged.
Manjeet Singh Dhillon, in a preliminary objection before the start of the trial, said the transfer was against Article 8(1) of the Federal Constitution regarding equality.
He said the Magistrates’ Court has the jurisdiction to impose a maximum fine of RM10,000 compared to the Sessions Court.
Manjeet said under section 87(1) of the Subordinate Courts Act 1948, a magistrate can pass any sentence allowed by law not exceeding five years' jail, a maximum fine of RM10,000 or whipping up to 12 strokes or any permitted combination of these three options.
"By contrast, Section 64 of the Subordinates Courts Act 1948 permits the Sessions Court to pass any sentence other than the death sentence. There is no cap on the maximum fine that the sessions judge could impose unlike the magistrate.
“Hence, with the case being transferred from to the Sessions Court, my client is now exposed to an ‘unequal' potentially disparate and far harsher punishment in fine by the Sessions Court as opposed if the case remains in the Magistrates’ Court," he said.
Manjeet said the question before the court was whether it could impose a higher fine to those facing a similar charge at the Magistrates' Court.
Two options
Following this, the counsel argued that Sessions judge Mohamad Sekeri Mamat has two options namely to transfer the case back to the Magistrates’ Court or suspend proceedings under the Courts of Judicature Act and transmit the case to the High Court to consider this constitutional question and also the legality in the prosecution transferring it under section 177 of the Criminal Procedure Code.
Manjeet (left) earlier submitted that the magistrate’s order to transfer the case on Aug 15, was null, void and contrary to section 177 as there was no ground to transfer the case based on public interests.
He also said that under section 417, of the Criminal Procedure Code only High Court judges could make the transfer order from the lower courts.
As the case, he said, was before the Magistrates’ Court where Raja Petra was charged it should remain there - Malaysiakini.
My Journal views the defence argument of potentially unequal sentence at the two courts to be the over-riding concern for justice to the accused who should be subject to the same sentence as any other man in the country for the same offence. The prosecution's reason of "public interest" for transfer is not good enough as every case is of public interest if brought to the attention of the public. Hence the case should be heard in the court where he was charged. If the prosecution had wanted it, they could have charged RPK in the Sessions Court as it was their liberty to do so.
