They said the court should also use its discretion judiciously to grant bail for non-bailable offences, even if an accused is unrepresented.

“At the moment, the courts have the discretion to temporarily free an accused charged with murder, rape or armed robbery, which is a non-bailable offence under the Criminal Procedure Code,” former Bar president Salim Bashir said.

He called for the government to table amendments to the law to allow judges, especially those in the lower courts, to grant bail for offences such as drug trafficking, kidnapping, firearms possession, and those listed under the Security Offences (Special Measures) Act, more commonly known as Sosma.

“In these types of cases, the courts presently are totally prohibited from considering bail,” he said.

As an example, Salim, a criminal law practitioner, said bail could be offered for drug trafficking and possession under Section 39A(2) of the Dangerous Drugs Act.

Salim was responding to home minister Saifuddin Nasution Ismail’s announcement that the government was finalising amendments that would allow remand prisoners to be placed on house arrest.

Saifuddin said the move would ease overcrowding in the country’s 34 prisons that currently hold about 87,000 inmates, well above the 73,000 total capacity.

Of the total, 30,000 are in remand due to their inability to post bail, the minister said.

Fellow lawyer A Srimurugan said that where bail is at the court’s discretion, judges should generally lean in favour of granting it unless there is a risk of the accused fleeing or reoffending.

He said judicial administrators should also remind all magistrates and sessions court judges that an accused is presumed innocent until proven guilty.

Judicial officers should also proactively assess an accused’s financial means and impose reasonable bail and conditions, particularly when the accused is unrepresented.

“Bail and not jail should be the rule when accused persons claim trial,” he added.

Counsel M Manoharan said one of the reasons accused persons are not able to post bail was that prosecutors tend to propose an exorbitant amount.

“It is not commensurate with the offence committed, which leads to the accused spending time in jail even before the court has decided on the case,” he said.

The lawyer said the courts were able to impose other conditions, such as impounding passports and ordering the accused to report to the nearest police station periodically in cases of flight risks.

Kitson Foong supported Saifuddin’s proposal to amend the Prisons Act, saying it was a critical reform that signified a progressive and responsible approach to justice.

“Such a move is not about being soft on crime, but about being smart on justice,” he added.

However, he said there were some obvious repercussions as the police or prisons department would need to have sufficiently trained manpower to ensure effective monitoring of remand prisoners.

Foong nonetheless said it was a more cost-effective alternative to custodial remand and would bring about significant savings in taxpayers’ funds.

He added that the proposal would allow accused persons to fully participate in the preparation of their defence while maintaining ties with their family.

“The negative social stigma of accused individuals being sent to prison while awaiting trial will be removed,” Foong said, adding that the proposal would also reduce unnecessary exposure of accused persons to the prison environment.