POLICE USED REDUNDANT LAW TO SEIZE AKJAN’S PROPERTIES?

Police used redundant law to seize Akjan’s properties – counsel

KOTA KINABALU Feb 15, 2012: The High Court yesterday was adjourned to March 20 this year to deliver its decision on a criminal revision filed by the City police chief to retain control of all properties seized from Datu Mohd Akjan Datu Ali Muhammad during his alleged installation as ‘sultan of Sulu’ last year.

Justice Dato’ Abdul Rahman Sebli deferred the pronouncement of the verdict after hearing the submissions from both parties.

Deputy public prosecutor (DPP) Raja Zaizul Faridah Raja Zaharuddin, assisted by DPP Uma Devi Ballasubramaniam, represented the appellant, while P.J Pereira assisted by Ariel Dasan, represented Mohd Akjan.

At yesterday’s proceedings, Raja Zaizul Faridah contended that the interpretation of Section 413 of the Criminal Procedure Code (CPC), which is the procedure adopted by the police on the seizure of the property, states that ‘the seizure or finding by any police officer of property taken or alleged or suspected to have been stolen or found under the circumstances which create suspicion of the commission of any offence shall be immediately reported to a magistrate, who shall make such order as he thinks fit respecting the delivery of the property to the person entitled to the possession of it, or, if that person cannot be ascertained, respecting the custody and production of the property’.

She submitted it was abundantly clear that the court was not obliged to construe the word “shall” as mandatory in every case, for as to whether the word “shall” is to be construed as mandatory or directory would depend on legislative intent.

Raja Zaizul Faridah made an urging to note that Section 413 of the CPC was fundamentally a procedural provision, as opposed to a substantive or evidential provision of the law.

Furthermore, she pointed out that it was pertinent to note that Section 413 of the CPC was not concerned with admissibility, hence, a more liberal meaning must be given to the word “shall” rather than a rigid interpretation, in order not to curtail the administration of justice of a case.

Raja Zaizul Faridah said that based on those reasons therefore, she argued that in no sense could the word “shall” in Section 413 of the CPC be understood as mandatory for it would run counter to all established legal principles of interpretation.

She added that it was not the object of the legislature to make Section 413 of the CPC as imperative, since that section must be clearly understood to be directory.

In his rebuttal, Perira pointed out that the court was not the right quorum to question the word “shall” as only the Federal Court possesses the jurisdictional authority to reopen cases or take action or interpret its meaning.

He then argued that the police had used Section 68 of the CPC to seize some 33 items from Mohd Akjan which was therefore illegal.

He drew the attention of the court to the fact that when he said Section 68 used by the police was wrong, it was because the particular provision used was from the State CPC (Kanun Acara Jenayah Negeri Sabah).

“After doing some research, I found a copy of the State CPC which I had served together with my written submission and this piece of legislation had been abolished by Malaysian Law,” he explained.

The judge then ordered Raja Zaizul Faridah to serve to the court a copy of the Hansard of the parliamentary proceedings and to reply as to whether the word “shall” in Section 413 of the CPC is directory or mandatory, on March 20 this year.

On December 27, 2011, magistrate Noor Hafizah Mohd Salim had dismissed the City police chief’s application for a stay of execution of an order to return the seized items to Mohd Akjan pending a criminal revision at the High Court.

This followed the decision of magistrate Nuruhuda Mohd Yusof on December 7, 2011, granting Mohd Akjan’s application for all the belongings, among others, a coronation suit and several documents to be returned to him.

On May 22, Mohd Akjan was released unconditionally from the Karamunsing police station after a seven-day remand period in custody.

The remand order was issued for the police to investigate into Mohd Akjan’s case under Section 130C of the Penal Code for allegedly committing acts of terrorism, an offence which carries a jail term of between seven and 30 years and a fine.

It was widely reported that Mohd Akjan was ceremonially self-installed as the 33rd reigning ‘sultan of Sulu’ on February 2, 2011, when he took the oath of allegiance in a private ceremony at Kampung Likas here.

It was reported that the ceremony was witnessed by a group of 60 people, including senior officials of the so-called Sulu sultanate from the Sulu province of southern Philippines.

Following the installation, Mohd Akjan assumed the title of Paduka Maulana Al-Sultan Sharif Ali Muhammad Pulalun or Sultan Hashim Shariful-II.

The alleged unilateral proclamation by Mohd Akjan as the reigning sultan had provoked storms of protests from various organisations.