UNDERSTANDING THE PRINCIPLES OF ANTICIPATORY BAIL


1. I had filed a Motion for the Malaysian Bar Council to introduce the notion of 'Anticipatory Bail' in Malaysia. This Motion was duly passed during the 72nd AGM held on 17th March 2018.

2. In anticipation of this introduction, this article is aimed at providing an insight of 'Anticipatory Bail'.

3. 'Anticipatory Bail' is an application made to Court, for bail to be granted; prior to the arrest of an accused.

4. The following fictional cases will provide a practical insight on the applicability of 'Anticipatory Bail':-

SCENARIO A

Silly made a public speech. He made sensitive remarks about a particular group. Members of this group then made various police reports against Silly; accusing him of being insensitive of their group and their beliefs. Reports were made in almost all the States in Peninsular Malaysia. In actual fact, Silly was only making reference to a book that was legally published and circulated.

Pre-Anticipatory Bail

Silly will most likely be arrested at every police station, one after the other; where a police report was made against him. Silly will first be subjected to an arrest and if investigations cannot be completed within 24 hours, there will be an application under Section 117 of the Criminal Procedure Code, to further detain him. He may remain under arrest for the full duration of this ordeal. This is commonly known as a “roadshow” and Silly’s liberty will be deprived for a substantial amount of time.

Post Anticipatory Bail

Silly will be able to apply for an order of 'Anticipatory Bail'. If the Court deems fit to grant Silly the order, Silly will not be subjected to custody on this accusation and will be able to give his statement at every police station; as and when required. Silly remains a free man whilst the integrity of the investigation remains unaffected.

Once 'Anticipatory Bail' is granted, Silly cannot be arrested on the accusations and/or police reports made against him. If any arrest is still made, he has to be released immediately.

In laymen terms, 'Anticipatory Bail' is like your 'Out of Jail' card in Monopoly. It is an insurance that, in the event you are arrested, you shall be released. However, the release here does not mean release of the charge made against you; release here is only confined to your custodial experience.

SCENARIO B

Silly is a habitual snatch thief. Malve, a prominent lawyer, was having lunch with his friend Ryan, a policeman. Ryan was off duty; thus, wearing plain clothes. As they finish their lunch, Malve was about to pay for the bill and took out his wallet. Silly took a strike for the wallet and was apprehended by Ryan.

Pre-Anticipatory Bail

Silly's arrest will be processed in the police station and if investigations cannot be completed within 24 hours, he will be subjected to remand proceedings. Once investigations are complete, he will be charged in Court accordingly.

Post Anticipatory Bail

Silly will not be able to apply for 'Anticipatory Bail'.
The prominent and important ingredient for the grant of 'Anticipatory Bail' is, to exclude the humiliation and harassment of arrest. If arrest has already been affected, then the application for 'Anticipatory Bail' cannot be made. Any challenge of the arrest will rest in other areas of the law (if any) and not via ‘Anticipatory Bail’.

SCENARIO C

There has been rampant killings and the modus operandi of these killings appear to suggest that it is done by the same person. DNA evidence obtained from all victims lead to one male individual. It is later identified that the individual (purely for consistency and no pun intended) is non-other than a person by the name of Silly. It was also believed that Silly may have killed more victims that have yet to be discovered by the police. A national man-hunt on Silly was done as his whereabouts could not be ascertained.

Pre-Anticipatory Bail

Similar to the examples provided above.

Post Anticipatory Bail

Application for 'Anticipatory Bail' will not be allowed. An application for 'Anticipatory Bail' is not as of right. It is a balance between the right to stay away from custodial experience against public policy.

If the Prosecution has very strong evidence that there are other victims at stake, an application for 'Anticipatory Bail' must be refused as Silly's freedom will not be indifferent towards the investigation.

However, it must be noted that, it is not the gravity of the offence that is taken into account when contemplating whether or not to allow an application for 'Anticipatory Bail'. Rather, is it the circumstances surrounding the application that has to be taken into account; in justifying whether or not such an application ought to be allowed. Each cases’ circumstances have to be examined individually and subjectively by the Court.

SCENARIO D

Silly has a strong belief against a particular political party. He intends to cause chaos at the AGM of the party. The AGM is set to take place in 2 weeks' time. Silly is aware that his actions will have legal consequences but nevertheless intends to proceed with his plan. Silly now intends to apply for ‘Anticipatory Bail’ as he has strong reasons to belief that he will be arrested as a consequence of his conduct during the said AGM.

Pre-Anticipatory Bail

Not Applicable.

Post Anticipatory Bail

Silly's application will fail. This is simply because, the grounds of his belief (that he will be arrested as a result of his conduct) is not founded.

Further, an application for 'Anticipatory Bail' cannot be used as an insurance to commit crime. It is not open for abuse. There will not be bail granted for an 'intended act'; the granting of which will most certainly be unconstitutional. An application for 'Anticipatory Bail' must be bona fide (done in good faith) and cannot be granted if it is done in vacuum. There must be substance to support such an accusation.

'Anticipatory' Bail must only be granted to deserving individuals; to be decided on a case to case basis.

5. I do believe that, 'Anticipatory Bail' must be introduced in Malaysia. There is absolutely no justification for one to be subjected to custody during investigation. More so, when the freedom one is indifferent towards the investigation.

6. I must admit, it is not an easy task to introduce 'Anticipatory Bail' in Malaysia. There will be a lot of fine tuning required. The technicalities and its subsequent implementation will have to be put and challenged under heavy scrutiny.

7. I must admit, it is not an easy task to introduce 'Anticipatory Bail' in Malaysia. There will be a lot of fine tuning required. The technicalities and its subsequent implementation will have to be put and challenged under heavy scrutiny.