LETTER | Discretion must be part of applying the law

LETTER | Police have defended the move to arrest two teenagers over a viral video attacking the SPM History paper.

Hulu Selangor district police chief Suffian Abdullah pointed out that the arrest of the two went by the book.

The two were arrested to facilitate investigations under Section 14 of the Minor Offences Act 1955 and Section 233 of the Communications and Multimedia Act 1988 (CMA).

An offence under the former is non-seizable – that is, an arrest cannot be made without a warrant. The latter allows for arrest without a warrant for offences committed under it.

Following an arrest, the police may obtain a remand order under Section 117 of the Criminal Procedure Code (CPC), which is the general law on criminal procedure, from the Magistrate’s Court. This is to facilitate investigations.

According to Suffian, the police obtained a two-day remand order. That’s within the law.

However, offences can be bailable or non-bailable. Whether an offence is one or the other, it is shown in the Fifth Column of the First Schedule CPC.

A bailable offence means bail has to be offered as of right. The authority to offer bail is either the police or the court.

When bail is offered by the former, it is commonly called police bail, which may be offered pending a full investigation.

Thus, instead of detaining a person any longer, a police bail may be granted to ensure that the person will appear at the police station and report to the investigation officer at the appointed time.

Usually, police bail takes the form of a bond by the surety without securities.

The law is found in Section 387 CPC, which provides that when a person is arrested without a warrant by the police, and is prepared to give bail, that person shall be released on police bail.

The person may even be discharged on his executing a bond without sureties for his appearance.

Although Section 387 does not override Section 117, the students could still be released on police bail to allow them to complete taking the SPM without the trauma of being remanded.

There is a discretion whether to proceed with applying for a remand order to facilitate investigation or to give bail pending investigation.

Even if the offence committed is non-bailable which means the grant of bail is discretionary, an arrested person may be released on bail by the officer in charge of the police district (OCPD).

However, the person shall not be released if there appear reasonable grounds for believing that he has been guilty of an offence punishable with death or imprisonment for life.

If it appears to the OCPD that there are no reasonable grounds for believing that the person has committed a non-bailable offence, but there are sufficient grounds for further inquiry, the OCPD has the discretion to release him on the execution by him of a bond without sureties for his appearance.

The law is in Section 388 CPC.

Again, there is discretion. As G Selva said, discretion must be part of applying the law.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.