Tuesday, 20 January 2009 18:30 | By FLORENCE A. SAMY (The Star)
KUALA LUMPUR: Malaysia Today editor Raja Petra Kamarudin will find out on Feb 13 whether his criminal defamation case will be transferred back to a lower court or be referred to the Federal Court over a constitutional issue.
High Court judge Zainal Azman Ab Aziz set Feb 13 as the decision date after hearing arguments from the prosecution and the defence.
Raja Petra’s counsel Manjeet Singh Dhillon and J. Chandra sought to refer a constitutional question to the Federal Court on whether transferring a case under Section 177 of the Criminal Procedure Code from a competent magistrates court to a Sessions Court was in violation of Article 8(1) of the Federal Constitution.
Manjeet Singh argued that there was a breach of equality of rights under Article 8(1) as transferring the case would expose his client to potentially harsher punishment powers under the Sessions Court compared with those similarly charged and tried in the magistrates court for the same offence.
A magistrate could impose a maximum fine of RM10,000, but there was no cap on the maximum fine a Sessions Court could impose, he added.
“There is very clear discrimination. The Attorney-General has the power to punish but he cannot punish two people with similar crime and circumstances in two different ways,” he told the court.
Raja Petra was charged at the magistrates court on July 17 last year under Section 500 of the Penal Code which carries a maximum punishment of two years or a fine or both.
He was charged with defaming the Deputy Prime Minister’s wife Datin Rosmah Mansor, acting Kolonel Abdul Aziz Buyong and his wife Kol Norhayati Hassan in a statutory declaration he made on June 18 last year.
On Aug 15, magistrate Nazran Mohd Sham allowed the prosecution’s application to transfer the case to the Sessions Court on the grounds of public interest.
However, Manjeet Singh said the magistrate’s order was illegal, there was no grounds of public interest and that Raja Petra’s case should remain in the magistrates court where he was first charged.
However, DPP Anselm Charles Fernandis argued that Section 177 of the CPC allowed a magistrate to transfer a case to a higher court following an application by the public prosecutor if it was of the opinion that the case should be tried in a higher court.
High Court judge Zainal Azman Ab Aziz set Feb 13 as the decision date after hearing arguments from the prosecution and the defence.
Raja Petra’s counsel Manjeet Singh Dhillon and J. Chandra sought to refer a constitutional question to the Federal Court on whether transferring a case under Section 177 of the Criminal Procedure Code from a competent magistrates court to a Sessions Court was in violation of Article 8(1) of the Federal Constitution.
Manjeet Singh argued that there was a breach of equality of rights under Article 8(1) as transferring the case would expose his client to potentially harsher punishment powers under the Sessions Court compared with those similarly charged and tried in the magistrates court for the same offence.
A magistrate could impose a maximum fine of RM10,000, but there was no cap on the maximum fine a Sessions Court could impose, he added.
“There is very clear discrimination. The Attorney-General has the power to punish but he cannot punish two people with similar crime and circumstances in two different ways,” he told the court.
Raja Petra was charged at the magistrates court on July 17 last year under Section 500 of the Penal Code which carries a maximum punishment of two years or a fine or both.
He was charged with defaming the Deputy Prime Minister’s wife Datin Rosmah Mansor, acting Kolonel Abdul Aziz Buyong and his wife Kol Norhayati Hassan in a statutory declaration he made on June 18 last year.
On Aug 15, magistrate Nazran Mohd Sham allowed the prosecution’s application to transfer the case to the Sessions Court on the grounds of public interest.
However, Manjeet Singh said the magistrate’s order was illegal, there was no grounds of public interest and that Raja Petra’s case should remain in the magistrates court where he was first charged.
However, DPP Anselm Charles Fernandis argued that Section 177 of the CPC allowed a magistrate to transfer a case to a higher court following an application by the public prosecutor if it was of the opinion that the case should be tried in a higher court.
He cited Article 145 (3A) of the Federal Constitution where the federal law may confer powers to the Attorney-General to determine the courts or venue for trials or which proceedings should be transferred.
He said the magistrate’s order to transfer the case was valid and not against Article 8 which should be read subject to Article 145(3A).
He said the magistrate’s order to transfer the case was valid and not against Article 8 which should be read subject to Article 145(3A).
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