Contributed by Seira Sacha Abu Bakar and Nizam Bashir, with photo by Daniel Soon
Kuala Lumpur, Saturday – Early morning on the final day of the MLC, 3 distinguished speakers sat down together and discussed on how the criminal justice system can best work for the accused. At the session called Towards A Fairer And A More Effective Administration of the Criminal Justice System moderated by Rajpal Singh, panellist includes YA Tan Sri Dato’ Zulkefli Ahmad Makinudin, a Federal Court Judge and also the Managing Judge for the Criminal Division of the Judiciary, Hisyam Teh Poh Teik, a criminal law practioner, and Dato’ V Sithambaram, another criminal law practioner.
Kuala Lumpur, Saturday – Early morning on the final day of the MLC, 3 distinguished speakers sat down together and discussed on how the criminal justice system can best work for the accused. At the session called Towards A Fairer And A More Effective Administration of the Criminal Justice System moderated by Rajpal Singh, panellist includes YA Tan Sri Dato’ Zulkefli Ahmad Makinudin, a Federal Court Judge and also the Managing Judge for the Criminal Division of the Judiciary, Hisyam Teh Poh Teik, a criminal law practioner, and Dato’ V Sithambaram, another criminal law practioner.
YA Zulkefli started by acknowledging that there are delays in the criminal justice system. He attributed one of the main factors to postponement by the Court itself. Instances for adjournment includes, the accused appearing in a different court, last minute request, documents not furnished by the prosecution, key witness not available, and the DPP being engaged in a different court. Another factor is the inability of the Magistrates or Judges to manage the case. Shortage of competent defence lawyers also contribute to the delay.
In order to overcome the delays, as the Managing Judge, YA Zulkefli has directed the Magistrate and Judges to adopt a case management system to dispose cases. Courts should not fix more than 2 cases a day and when a case has been fixed for hearing, the hearing should be completed. There is no necessity for a break, merely because the lawyer requested for time to prepare submissions. In a non–complicated cases, the Magistrate and Judges should be able to furnish with their Judgment on the spot. A specialised Court has also been set up at Kuala Lumpur, Johor Bahru, Penang and Shah Alam to deal with the backlog. He hopes that with these mechanism in place, and with the cooperation with all the parties involved in the criminal justice system, backlogs of cases can be eradicated.
The next speaker Hisyam Teh, emphasised on the fairness of the criminal justice system. He believes that an accused person should have the right to a fair trial as enshrined in Article 5 of the Federal Constitution. This notion is also recognised by the Court as can be seen in the decision in PP v Choo Chuan Wang, which was later endorsed by the apex court in Lee Kwan Woh v PP. The integrity of any criminal justice system is pivoted on the concept of fairness. He said that before we condemn an accused person, we must first give them a fair trial.
He lauded the judicial reforms implemented by the Chief Justice to address the issue of delays, but he cautioned that fairness and justice cannot be sacrificed in the name of speed. There must be a balance between these competing interests. He went on to say that the criminal justice system recognised certain well entrenched principles. He calls them the “minimum guarantees” which serve to ensure a fair criminal justice system. These “guarantees” are the presumption of innocence, the burden on the prosecution to prove the case, an accused is entitled to any benefit of the doubt, and an accused can only be convicted if defence failed to raise reasonable doubt. Any attempt to dilute these principles, he said, should be struck down.
Another important aspect of fairness in the criminal justice system is an accused person is entitled to know why he is convicted. It is the duty of the prosecution to prosecute fairly, to disclose and produce evidence even if it undermines the case. The prosecution should also accord the defence with a level playing field to ensure that the accused can present his case on conditions of equality and fairness. To a question by the moderator, Rajpal Singh, whether the Courts have applied those “guarantees”, Hisyam replied that it is important for the prosecution to know that they have the duty to prove the case against the accused.
Dato’ Sithambaram concurs with Hisyam that we all owe a duty of care to ensure the criminal system works. Criminal laws are enforced to apprehend criminals. But the system must also ensure that they are rightly judges, fairly tried and appropriately sentenced. He feels that the current decisions by the Courts seem to move away from these principles in cases where the guilt of the accused is inferred from conduct. When the judiciary places more importance on guilt rather than fairness of the system, it sends a wrong signal to the public. He also commented that there are genuine request for postponement and in such cases, the postponement must be given.
During the question and answer session, a few participants expressed their concern with the hastiness at which cases are being disposed off by the judiciary because of the KPI. YA Zulkefli dismissed those concerns by saying “There is no KPI in the judiciary system.”
At the end of the session, Rajpal asked the panellists where Malaysia currently stands in terms of achieving the objective of a fairer criminal justice system. All agreed that Malaysia was only halfway there.
In order to overcome the delays, as the Managing Judge, YA Zulkefli has directed the Magistrate and Judges to adopt a case management system to dispose cases. Courts should not fix more than 2 cases a day and when a case has been fixed for hearing, the hearing should be completed. There is no necessity for a break, merely because the lawyer requested for time to prepare submissions. In a non–complicated cases, the Magistrate and Judges should be able to furnish with their Judgment on the spot. A specialised Court has also been set up at Kuala Lumpur, Johor Bahru, Penang and Shah Alam to deal with the backlog. He hopes that with these mechanism in place, and with the cooperation with all the parties involved in the criminal justice system, backlogs of cases can be eradicated.
The next speaker Hisyam Teh, emphasised on the fairness of the criminal justice system. He believes that an accused person should have the right to a fair trial as enshrined in Article 5 of the Federal Constitution. This notion is also recognised by the Court as can be seen in the decision in PP v Choo Chuan Wang, which was later endorsed by the apex court in Lee Kwan Woh v PP. The integrity of any criminal justice system is pivoted on the concept of fairness. He said that before we condemn an accused person, we must first give them a fair trial.
He lauded the judicial reforms implemented by the Chief Justice to address the issue of delays, but he cautioned that fairness and justice cannot be sacrificed in the name of speed. There must be a balance between these competing interests. He went on to say that the criminal justice system recognised certain well entrenched principles. He calls them the “minimum guarantees” which serve to ensure a fair criminal justice system. These “guarantees” are the presumption of innocence, the burden on the prosecution to prove the case, an accused is entitled to any benefit of the doubt, and an accused can only be convicted if defence failed to raise reasonable doubt. Any attempt to dilute these principles, he said, should be struck down.
Another important aspect of fairness in the criminal justice system is an accused person is entitled to know why he is convicted. It is the duty of the prosecution to prosecute fairly, to disclose and produce evidence even if it undermines the case. The prosecution should also accord the defence with a level playing field to ensure that the accused can present his case on conditions of equality and fairness. To a question by the moderator, Rajpal Singh, whether the Courts have applied those “guarantees”, Hisyam replied that it is important for the prosecution to know that they have the duty to prove the case against the accused.
Dato’ Sithambaram concurs with Hisyam that we all owe a duty of care to ensure the criminal system works. Criminal laws are enforced to apprehend criminals. But the system must also ensure that they are rightly judges, fairly tried and appropriately sentenced. He feels that the current decisions by the Courts seem to move away from these principles in cases where the guilt of the accused is inferred from conduct. When the judiciary places more importance on guilt rather than fairness of the system, it sends a wrong signal to the public. He also commented that there are genuine request for postponement and in such cases, the postponement must be given.
During the question and answer session, a few participants expressed their concern with the hastiness at which cases are being disposed off by the judiciary because of the KPI. YA Zulkefli dismissed those concerns by saying “There is no KPI in the judiciary system.”
At the end of the session, Rajpal asked the panellists where Malaysia currently stands in terms of achieving the objective of a fairer criminal justice system. All agreed that Malaysia was only halfway there.