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Thursday November 26, 2009

Mini market trader freed again of same four charges

By SHAILA KOSHY and NIK NAIZI HUSIN


TEMERLOH: Mini-market owner Subramaniam Gopal was brought to the magistrate’s court again on four charges of running his business without a licence — and again given a discharge not amounting to an acquittal.

The court decision drew criticism from Suhakam chairman Tan Sri Abu Talib Othman, a former Attorney-General.

Magistrate Ida Rahayu Sharif allowed the discharge application after Deputy Public Prosecutor Nurshafini Mustafa said she had been instructed to do so by her senior officer. Datuk M. Ramachelvam, counsel for Subra-maniam, 50, did not object.

Earlier, Subramaniam pleaded not guilty to four charges brought by the Temerloh Municipal Council for operating his business — the GSM Mini Market — on 10A Jalan Besar Lanchang in Lanchang, Pahang, without a licence on March 10, March 17, April 18 and June 6 in 2006.

On Sept 11, in a revision application by Subramaniam, the Temerloh High Court had also ordered a discharge not amounting to an acquittal.

Not over yet: Subramaniam (left) and his lawyer M. Ramachelvam coming out from the magistrate’s court in Temerloh.

Judicial Commissioner Akhtar Tahir said in his judgment then that he agreed with the trader’s contention that Section 120 of the Local Government Act (LGA) was unconstitutional.

The section was the same one that the council used to prosecute him in the magistrate’s court yesterday. “The power to institute a prosecution lies with the Attorney-General,” Akhtar said.

Outside the court yesterday, Subramaniam said he had been running his shop since 1979 and had always had a licence until 2005 when the council rejected his application for a renewal.

Ramachelvan said his client was in a bind whether to stop or continue with the business because it was his livelihood.

Abu Talib, meanwhile, said it was most unfair not to discharge and acquit Subramaniam on this occasion.

“It appears to be a harassment of this man,” he said in Kuala Lumpur when asked if was right to keep charging a person for the same offence.

On Nov 22, the Sunday Star frontpaged the Sept 11 judgment and ramifications for local councils nationwide. On Tuesday, the council served Subramaniam with fresh summonses for the same offences.

“No one should suffer because of an omission, negligence or ignorance on the part of a public servant,” said Abu Talib. “This is a miscarriage of justice.”

From a human rights perspective, he said, the guilty should not go unpunished and the dishonest rewarded but no one should be charged unless he has clearly committed an offence known in law.

“Admittedly, there are times when injustice cannot be prevented but there should never be a time when it cannot be protested.”

Abu Talib said the judge was right to declare Section 120 ultra vires Article 145(3) of the Federal Constitution because the power to institute prosecutions vested in the A-G as Public Prosecutor was to ensure check and balance.

“The investigating agency should not be the one that prefers the charge.”

He said there was a distinction between instituting a prosecution (whether to prefer a charge) and to conduct (carry out) a prosecution.

He added that the new Section 377 of the Criminal Procedure Code, which provides for delegation of the Public Prosecutor’s duty to certain groups of people, only refers to conducting a prosecution and not instituting one.

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