LLA Series: The Attorney General’s Chambers must improve

ARCHIVES 2011

By admin-s On Feb 20, 2011

Thoughts about the exercise of the Attorney General’s Chambers discretion to prosecute, its financial accountability, its lack of prudence, a quote from Dershowitz, Bangladeshis charged for sodomy and a brief description of a criminal trial.

If my criminal career was adjudged solely from the few criminal legal aid cases I took from the Bar Council Legal Aid Centre (Kuala Lumpur), I could boast of an almost 90% success rate in defending my clients. The reason I don’t boast about this is because I know that my success is not entirely down to my ability; in fact, a large contributing factor to my success is actually the police and the Attorney General’s Chambers themselves. When you have such opponents, you need little assistance elsewhere. After a steady diet of legal aid criminal cases for more than a decade, I strongly feel that the Attorney General’s Chambers are generally incompetent in deciding the cases fit to be prosecuted, or for continued prosecution. The secret of my success is not because I am the next Amer Hamzah or Karpal Singh; it is not because I have a brilliant criminal mind (if not I’d be filthy rich by now); it is not because my cross-examination leaves the police witnesses trembling in tears begging to leave the box (although on occasion I do get the Judge to berate them harshly after successfully demonstrating how incompetent they were in discharging their duty).

It is simple: I am assigned to clients charged for a crime they did not commit. Seriously. All I do in trials is demonstrate how my clients were not involved; of course, by tearing down the prosecution’s case. I just try my best to make sure the truth shines through the web of lies weaved by the police witnesses. Yes, it happens. A lot. The police will be lying about some aspect of the case – it could be about the entire event, or some crucial portions of the narrative linking the accused to the crime. Don’t believe me? Alan Dershowitz in his excellent book, Letters to a Young Lawyer, in the chapter titled, ‘An Honourable Profession?’ writes the following:

“… As a lawyer, you will see corruption all around you, unless you deliberately blind yourself to it. You will hear policemen lying through their teeth to convict people who they believe are guilty but whose constitutional rights they violated in order to secure the evidence of their guilt. You will see judges who know these policemen are lying, pretending to believe them in order to avoid freeing an obviously guilty defendant. You will read the opinions of the court of appeals judges pretending to believe the trial judges who pretended to believe the police who pretended to be telling the truth. This sort of ‘benign’ corruption is pervasive in our legal system – and everyone with any experience knows it. Yet we hear nothing about it on Law Day. We never see the slogan that should adorn every courthouse: “the end justifies the means.” Nor do we hear judges take the oath they really follows: “to do justice without respect to person” – unless those persons are drug dealers, Mafioso or represented by lawyers we don’t like.”

Letters to a Young Lawyer by Alan Dershowitz

If this is true for the United States of America then it will be at least doubly true for Malaysia. In most of my legal aid cases, I find those charged were due to being at the wrong place, at the wrong time; whether it is being passed out in a drug dealers den, or stoned out on some stairs, or just somewhere in the vicinity, or a usual suspect. And those who are highly likely to end up in such situations are the poor, or without support from family or friends, or a marginalized member of society. They are often caught because they are convenient.

You may quite rightly ask why do the police catch people who did not commit the crime and recommend them for prosecution? I suspect this happens because the police consider a case solved if someone is arrested for it – not when a conviction is recorded against the accused. So long as the police arrest someone for the crime – their job is done – never mind whether they caught the right person or not. If the prosecution loses the case against an accused, the police will not be asked to re-open the case and re-investigate it. That will simply be the end of it. Remember the case of Norita Shamsudin – the accused, Hanif Basri, was acquitted – do you hear the police still trying to find the murderer for that case?

Furthermore, it is unclear what post-mortem analysis and action is taken about the crime committed after the prosecution loses the case. Is the officer who recommended prosecution of the crime reviewed or asked to explain why they lost? Is the Attorney General’s Chambers remotely aware of the expense, including opportunity costs, in prosecuting a criminal case? Are they aware that each case lost is a wasted expense for the State?

My experience and a consideration of their methodology demands the answer no.

Attorney General’s Chambers Malaysia

The method of prosecution does not reflect an appreciation of these issues. Before I tell you about a case that exemplifies this issue it is necessary to first briefly explain the trial process. If you read the newspapers, may notice the report stating how the prosecution lost at the prima facie stage or ‘at the end of the prosecution’s case’. You need to understand this so you can better appreciate just how the Attorney General’s Chambers are financially wasteful in how it goes about its duty.