The state of our Courts today.
Frankly I think there is a serious inability to grasp the basic and foundational concept of administration of justice, be it civil or criminal, in Malaysia. This inability in turn causes serious miscarriage of justice, difficulties and untold misery to many.
Quite why this inability exists is a mystery to me as we have really good brains within the upper echelon of the judiciary, prosecution chamber, police and the Malaysian bar.
To a certain extent I think it is the attitude, the ego and the knack for an almost sadistic utilisation of powers within certain quarters that causes this inability. And it continues till this very moment.
First of all, the administration of criminal justice here consists of four separate, but essential, machinations. They are the police, prosecution, defence and the Courts. The police investigates. The prosecution decides whether or not to prosecute and if so, it proffers the charge and prosecute. The lawyers defend the accused. The Courts adjudicate.
These four bodies are different from each other, in both form and substance, as well as duties and functions. On the face of it, their respective duties and functions are opposed to each other’s. Each of them may very well have different and conflicting interests.
For example, the defence lawyers’ duties are primarily owed to their client, the accused person. Their job is to defend him and protect his interests. That would, at first glance, be in direct conflict or opposition of the duties of the prosecution, whose duties are owed to the State/society as a whole. Its job is to prosecute and secure a conviction.
On the other hand, the duty of the police is to investigate. This duty is owed to the State as a whole. Their investigation report is then scrutinised by the prosecution which may accept or reject the same. In an ideal situation, the prosecution would even tell the police that some of the evidence obtained by the police was obtained illegally or improperly. In that sense, the duties of the two may also collide with each other.
The Court on the other hand owes its duty to the State as a whole as well as to all of those who appear before it. Every Judge has the duty to perform the oath of his or her office, namely, to discharge his judicial duties to the best of his/her ability, that he/she will bear his faith and allegiance to Malaysia and will uphold the Federal Constitution at all time (see the 6th Schedule of the Federal Constitution).
The Court hears the prosecution and the defence. It conducts the trial of the charge in accordance with the law. It decides whatever questions which may arise in relation to evidence. Finally, it determines the guilt or otherwise of the accused. In that sense, the Court has the last say and its functions may be in opposition of the functions of the other three bodies.
Despite these seemingly opposing duties, functions and interests, it must be remembered that these four bodies are part of ONE system. They are but an integral part of the Malaysian administration of criminal justice.
I say integral because without any one or more of these bodies, criminal justice would not be attained.
Imagine a criminal trial without defence Counsel being present, for example. Justice would not be attained. Imagine a detention without trial, where only the police does its “investigating” duties and then it also acts as the Judge by detaining the person for 60 days without having to produce that person in Court, criminal justice is also not attained.
The absence of any one or more of the four bodies in any criminal case would render the administration of criminal justice in that case inherently faulty and at the very least, farcical.
The result is only one word, injustice. Pure and simple.
Here comes the inability to grasp the basic and foundational precept. One or more of the four bodies often invariably think that they should gang up together to procure a conviction come rain or shine, by hook or by crook. To these people, the police, prosecution and even the Courts, are the machinations of the State, whose job is to obtain a conviction. The defence is the stumbling block. It is the ENEMY and therefore the defence should be treated with utter contempt befitting that which is applied against the enemies of the state.
That is the problem in a nutshell. And to further turn the grey water of justice even darker and murkier is the fact that some Judges do actually think that they are but part of the State’s machinations to ensure a conviction! Thus we a have a situation of two bodies (police and prosecution), if not three (including the Court), ganging up together against the defence (the enemy).
Much of the bad press we read day in and day out about how shabbily some accused persons are treated nowadays are due to this moronic and misplaced idea of criminal justice.
These people forget that even though the four bodies bear different duties and responsibilities, at the end of the day they are an integral part of a system to ensure criminal justice. Criminal justice is only attained when the truth, and nothing but the truth, is uncovered and a fair and just decision is arrived at by the Court.
They forget that in this system, these four bodies are supposed to sit on a level field, each doing their part in the system, with no one body sitting above any others. Not even the Courts.
However, more often than not, the Courts think that they are the all and be all of this system. Just because they have the last say in making a decision, they think or perceive that they are the god of justice and that everybody else within the system should bow and kow tow to them at all times!
I suppose some people are still living in the feudal past!
Lately the Courts are so concerned with speed. It is as if suddenly the Courts have become an F1 team. The thing which really irritates the bejeezus out of me is the seemingly nonchalant attitude displayed by the Courts on fairness and justness. It is as if when a case is disposed, justice is done. As if the way it was disposed, the rationale for the disposal and everything else is secondary or rather not relevant.
Thus we hear of a case – a very real case – in the appeal Court where a pregnant lady Counsel had to, in the middle of the hearing, ask for a postponement because she was getting contractions! Apparently, she was arguing her case while her husband was waiting outside the Court just in case she went into labour.
And she did go into labour! How did this totally unfortunate event happen? Well, I was told that when the case was to be fixed, she did tell the Court not to fix it on that particular date as she was due to deliver. The Court had, inhumanly I must say, rejected her plea and fixed the hearing on that particular date nevertheless.
Such is the cold, insensitive and inhuman approach taken by the Court when fixing a case for trial or hearing nowadays. Not all Courts, but some. And why is this approach taken? Well, because the Courts have to fulfill their KPI for disposal of cases every month I suppose.
Then we heard about a Court in Johor which suddenly brought forward a criminal trial without any reason whatsoever. The Counsel appeared in Court and told the Court that his client could not be traced. That was a reasonable excuse as his client, the accused person, was supposed to originally appear in Court at a later date.
The Judge was having none of that and issued a warrant of arrest. The accused person, through no fault of his was arrested. He was put in jail for a week before a High Court Judge freed him.
The accused person, just because the Court had merrily and without justifiable reason, brought forward the trial of his case, spent a week in jail for nothing. Why? Again, I would hazard a guess that the Court had brought forward the trial date because of the “speedy principle”, I suppose.
I have a term for this. I call it “Speedy Gone-Justice”.
During a trial, there are Judges who do not allow Counsel to cross-examine. There are Judges who take over the cross-examinations. There are Judges who force Counsel to admit the contents of documents. All in the name of expediency.
The fact that now our Courts are so fast and quick have become a source of pride to some people. These people go around town telling how even the Singapore Courts are impressed. I just want to laugh!
The Courts, to my mind, should stop playing god and get off Mount Olympia and come down to the level playing field. It must soon realise that it is but only one part of the system which we have. It should bear that in mind.
Do I have to write about the prosecution and the police? On how they behave and conduct their affairs in the administration of criminal justice in Malaysia? Just look at the embarrassing and purely unethical way the prosecution is holding on to the clinical notes of the three doctors in the Anwar Ibrahim sodomy trial as a prime example.
Shouldn’t the priority be the attainment of justice? And does not justice mean the truth? And how to achieve the truth if relevant evidence are concealed? And without truth, do we get justice?
The prosecution has surely lost the plot. To them, all that matters is the procurement of a conviction, by hook or by crook. And to achieve that, the truth is consigned to somewhere within the dark dark recesses of their mind.
As for the lawyers, it is the same story. Lawyers now argue for the sake of winning a case and that is all. They forget that above all, they are the officers of the Courts. That is paramount.
There is no more camaraderie among lawyers anymore. The other week, a top lawyer actually objected to an application for postponement by his opponent on the ground that the opponent’s lead Counsel was undergoing cancer treatment!!! Unbelievable. But true.
Granted, his opponent had other eminent Counsel in the team. But the lead Counsel of choice was undergoing a cancer treatment. And yet this senior lawyer objected to a postponement vehemently. I wonder what he would do if he was in his opponent’s shoes.
While I was doing my pupilage in 1986, my Master came back from Court one day. In exasperation he said “one of these days I would have to advise my clients to fight it out on the street.”
I think, 24 years later, the time has come for me to do just that.
Art Harun believes he is a failed government experiment, abandoned and left alone to roam the streets after all remedial efforts yielded no positive result. He calls himself a non-governmental organism, practices law for a living and tries very hard to play guitar, sing, race cars and write some stuffs to stay alive. This article was original posted on his award-winning blog ARTiculations.