The administration of justice in Malaysia – a glaring misconception

ARCHIVES 2010

By admin-s On Nov 3, 2010

By Art Harun

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).