Court ruling on revealing defence unfair, says ex-judge
Gopal Sri Ram says that while prosecution in Lim Guan Eng’s case needs to show its hand, accused is protected by constitution from having to state his defence prior to trial.
(FMT) – The Federal Court is wrong in directing Penang Chief Minister Lim Guan Eng and a businesswoman to reveal their defence before trial starts because the burden is on the prosecution to prove its case beyond reasonable doubt, a retired judge said.
Gopal Sri Ram said an accused was entitled to know the case for the prosecution before he was required to state his defence.
He also said every accused person had the right to elect to remain silent at the close of the prosecution’s case.
“These two rights (knowing the prosecution’s case and the right to remain silent) form part and parcel of a fair procedure that is guaranteed under Article 5(1) read with Article 8(1) of the Federal Constitution,” he told FMT.
He said this in response to Thursday’s apex court ruling which held that Section 62 of the Malaysian Anti-Corruption Commission (MACC) Act, read together with Section 51A of the Criminal Procedure Code, did not violate Articles 5 (1) and 8 (1) of the constitution.
Article 5 is about life and personal liberty while Article 8 (1) is about equal protection of the law.
Section 62 compels accused persons charged with corruption to submit their defence statements before trial commenced which the Court of Appeal had previously declared as unconstitutional on Aug 7.
However, the apex court bench chaired by Chief Justice Raus Sharif, said Lim and Phang Li Koon, who is charged with abetment, could offer additional documents after the trial starts.
Raus said Section 62 only related to pre-trial procedures of delivering documents by the defence and not on the admissibility of evidence.
Sri Ram said this provision had the effect of depriving an accused of his rights because it compelled the person to deliver his defence statement once he has received documents from the prosecution.
“The section is mandatory. If he does not do so he cannot tender any defence at the trial in support of his case,” he said.
Sri Ram said the Federal Court has saved Section 62 by terming it a pre-trial procedure but what the bench ignored was the consequence of the provision after the trial began.
“What if an accused refuses to put in a defence statement as required by Section 62? The answer is that his right to defend himself at the trial is removed,” he said.
On June 30 last year, Lim was charged with using his public office to obtain gratification for himself and his wife, Betty Chew, by approving an application by Magnificent Emblem Sdn Bhd to convert agricultural land for residential purposes.
Lim was also alleged to have used his position to obtain gratification by purchasing a bungalow from Phang for RM2.8 million, below the property’s market value of RM4.7 million on July 28, 2015.
Rushed hearing
Sri Ram said the other unfortunate feature of the government’s appeal was that this case was rushed to be disposed of.
“The hearing was fixed immediately after the Court of Appeal’s written grounds was handed down. This sort of rushed hearings without affording an appellant and the respondent to put forward mature arguments does not augur well for our judiciary,” he said.
Sri Ram said the same thing happened when the prosecution appealed in Anwar Ibrahim’s sodomy case, resulting in the opposition leader being convicted by the Court of Appeal.
“While it is important to do justice, it is equally important to see that justice is done.
Otherwise the public may well be justified in forming the impression that the court has already made up its mind and is rushing just to arrive at a preconceived decision,” he said.
