Bail Is Not Punishment—but Neither Is It Immunity.

 Bail Is Not Punishment—but Neither Is It Immunity.

OPINION BY: Hem Kumar November 2026

The recent  argument proffered by an ex-judicial officer that Azruddin Mohamed’s detention must be governed by law, rather than politics or caprice, is sound. The suggestion that a proper application of the law necessarily points towards his release is much less convincing.

The difficulty lies not in the principle being defended, but in the selective emphasis given to the statutory provisions. A discussion of bail must consider the whole legal framework: the grounds for refusing release, the evidence supporting those grounds, the significance of conduct while already on bail, and the ability of conditions to manage an identified risk.

The central distinction is between punishment and prevention. Bail cannot lawfully become a substitute for a sentence. But the Bail Act expressly allows a court to consider whether release would create a sufficiently established risk of further offending, witness interference or obstruction of justice. Preserving the presumption of innocence does not require a court to disregard those risks.

Five years is not the decisive question

Much has been made of the argument that the cybercrime offence reportedly carries a maximum penalty of five years, while the Bail Act defines a “serious offence” by reference to punishment exceeding five years.

Five years plainly does not exceed five years. But that observation does not settle the application.

Section 7 provides several grounds on which bail may be refused. The provision concerning serious offences is not the only one. Section 7(1)(a) separately addresses substantial grounds for believing that a defendant, if released, is likely to fail to surrender, commit another offence other than one punishable only by a fine, interfere with witnesses, tamper with evidence or otherwise obstruct justice. Those grounds are not confined to charges carrying sentences exceeding five years.

The commentary acknowledges that the five-year distinction does not automatically guarantee bail. Yet its emphasis risks leaving the impression that an offence outside the “serious offence” definition presents a substantially complete answer to detention. It does not. The other statutory grounds still require examination.

Attendance at court is not the whole test

The questions “Has he absconded?” and “Has he failed to attend court?” are legitimate. They are also incomplete.

A defendant can attend every scheduled hearing while presenting a demonstrable risk of further offending or interference with witnesses. Equally, a court need not wait for an accused person to disappear, evidence to be destroyed or a witness to be intimidated before acting on substantial grounds for believing that such conduct is likely. The statutory inquiry is forward-looking.

That does not license speculation. “Likely to” must not become shorthand for “politically controversial” or “widely accused.” The legislation requires substantial grounds, not suspicion dressed up as certainty.

But the opposite error is equally serious: treating the absence of a completed breach as proof that no legally relevant risk exists.

Existing bail gives subsequent conduct significance

Mohamed’s circumstances also require an important distinction. His bail in the extradition proceedings remains separate from his remand on the cybercrime charge. The refusal of bail in the latter proceedings was a separate judicial decision, not simply the automatic cancellation of the former.

Conduct alleged to have occurred while a defendant is already on bail can nevertheless be relevant to the assessment of a fresh application. Section 7(2) requires a balance between society’s interests and the defendant’s liberty, and includes consideration of a history of offending while on bail or breaching court orders.

Public controversy has encompassed several reported episodes, including the investigation near the President’s private residence, allegations involving a material witness, and the subsequent cybercrime charge. Those matters cannot responsibly be collapsed into a declaration that Mohamed has committed a series of proven offences. The residence-related allegations were disputed, and an application to revoke his extradition bail arising from that investigation was refused. The witness-related allegations and cybercrime proceedings likewise require careful separation between what the prosecution alleges and what a court has established.

The correct approach is neither to ignore the underlying evidence nor to treat the number of accusations as proof. Several allegations do not become several convictions through repetition.

The ruling inconvenient to an easy rebuttal

Anyone defending Mohamed’s detention must confront Chief Magistrate Judy Latchman’s refusal to revoke his extradition bail.

In the reported November 3 ruling, she stated: “Charges by themselves without more do not satisfy the court that Mr. Mohamed has committed an offence or is likely to commit an offence.” She also found that breaches had not been established on the material before her.

That ruling does not automatically invalidate the separate refusal of cybercrime bail. Different proceedings may involve different evidence and different assessments. But it prevents an honest commentator from arguing that the mere existence of subsequent charges conclusively establishes the need for detention.

The same evidential discipline must apply to descriptions of Magistrate Abigail Gibbs’s decision. Reporting attributes to defense counsel the account that she relied on Mohamed having previously received bail and then faced further accusations. Her written reasons—not a political interpretation of her motives—should anchor any definitive assessment of her reasoning. The Bail Act requires reasons for refusal to be recorded in writing.

Conditions must answer the identified risk

Surrendering passports, providing sureties, reporting to police, maintaining a fixed residence and avoiding witnesses are possible safeguards. The Bail Act permits conditions directed not only at securing attendance but also at preventing further offending and interference with witnesses.

However, proposing conditions is the beginning of the analysis, not its conclusion.

A passport restriction addresses a different concern from a prohibition on contacting witnesses. A reporting requirement does not, by itself, explain how an alleged risk of interference would be controlled. The question is whether the proposed conditions adequately address the particular risk supported by the evidence.

Neither side can simply announce its preferred answer. The prosecution must substantiate the concern; the court must assess it and explain its decision.

Equal treatment requires the whole law

Mohamed must not be detained because he is Opposition Leader. He must not receive preferential treatment for the same reason.

Nor should detention be defended as a means of “teaching him a lesson,” stopping political embarrassment or punishing alleged defiance. Those are not substitutes for the statutory grounds.

The defensible argument is narrower and stronger: liberty before conviction is fundamental, but the Bail Act permits refusal where the required risks are established by evidence. The five-year classification does not extinguish those provisions. Previous court attendance does not answer every risk. Existing bail does not make subsequent conduct irrelevant. And fresh allegations do not prove themselves.

The rule of law requires all of these propositions to be held together—not whichever selection best serves a preferred defendant or a preferred political conclusion.