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Oct 11: HOW credible is it to say that Malaysia needs an inquisitorial system of justice (NST, Sept 30)?

We need to put the clock back to the Middle Ages to know the answer, when the inquisition was the order of the day in the English system of justice (which by inheritance is also ours).

The inquisitorial system has its roots in Roman law, which was embedded into the English system.

One does not know precisely how Roman law ended its authority in the English courts.

Presumably, it met its natural death when King Henry VIII broke away from the Pope and the Catholic Church, carrying in its train the law that they practised.

But realistically, one would imagine the real reason was because the law was inept and repugnant.

The essence of Roman law is that the guilt or innocence of an accused is determined through a process of inquiries conducted by the prosecutor and the judge himself acting as the prosecutor.

The essence of English law is that justice is achieved by an impartial judge.

How can justice be done inquisitorially without the judge being impartial and how can he be impartial when he has to wear two hats at the same time?

The job may be done more effectively under that system but personal freedom and dignity may have to take a back seat.

How do we conceive the idea of an accused partaking in a life-and-death inquiry with our attempt to curtail and curb the police power of taking cautioned statements from the accused?

How do we ensure that the question-and-answer sessions will not lead eventually to a confession being extracted illegally, by the use of force?

The system of justice in Europe is generally still based on Roman law.

It may be true, as has been suggested, that we are faced with innumerable difficulties in our judicial set-up 'judicial officers exceeding their authority, higher courts more frequently overruling lower courts’ decision, delays in court hearings and judgments.

But the question is: How do we know that these difficulties will not also occur under an inquisitorial system? In fact, they can happen in any judicial system.

One would venture to say that what this country needs to meet these difficulties is to appoint judges with the necessary attributes, since the ill effects of a system will be reflected in the way they perform.

In America, the judge is appointed by the President. But even his appointment has to be confirmed by the Senate Judicial Committee in an open inquiry.

Transparency, in other words, is paramount to ensure that the right candidate is chosen.

In England, the Lord Chancellor appoints judges but he carries with him the dignity and respect of experience as a very senior, if not the most senior, member of the Bar.

He knows what he wants from a judge. Public opinion and perception of the high qualities of a judge are by long tradition deeply implanted in British society. This is an important safeguard against any improper appointment.

We have yet to move forward in line with those checks-and-balances, practices and safeguards. How do we ensure, then, that judges appointed have the attributes necessary for their office?

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