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Putik Lada by Syamsuriatina Ishak

When people suspect a person to have done a wrong and then decide to take the law into their own hands, they are actually assuming the role of prosecutor and judge.

JUST a couple of months ago, many of us read the heart wrenching tale of the man who was beaten to death by neighbours who had mistaken him as the peeping tom lurking in the neighbourhood.

This was not first case where innocent people were beaten up after being wrongly accused of committing a crime.

This brings to mind an incident which happened to me personally a few years ago. My family and I were victims of a robbery at knifepoint. We were tied up with telephone wires while six masked men ransacked my in-law’s house for valuables.

We were thankful to have escaped unhurt.

But what struck me most was not the trauma of being robbed, but rather a remark subsequently by a young police constable after he found out that I am a lawyer: “So, how do you feel now about representing criminals in court?”

These two cases speak volumes about issues which affect practising criminal lawyers every day, that is, the lack of understanding on the part of the public on the basic concept of the presumption of innocence and the right to legal representation.

In the former case of vigilante justice gone wrong, one can see clearly how pivotal is the concept of “innocent until proven guilty” in a civilised society such as ours which believes in the rule of law.

When people suspect a person to have done a wrong and then decide to take the law into their own hands, they are actually assuming the role of prosecutor and judge.

How can they be absolutely sure that they are right? If only they had given the accused a chance to defend himself, would anything have been done differently? Could there be a chance that the accused had an alibi that made perfect sense? That he could not possibly have been the one they had thought to be at fault?

It is this concept of the presumption of innocence that requires courts of law to employ various rules to afford the accused a fair chance of being heard.

Article 11 of the Universal Declaration of Human Rights states: “Everyone charged with a penal offence has the right to be presumed innocent until proven guilty according to law in a public trial at which they have had all the guarantees necessary for their defence.”

Hence the presumption of innocence, of being innocent until proven guilty, is a fundamental right every accused has in criminal trials in our beloved nation.

The burden of proof is thus on the prosecution, which has to collect and present enough compelling evidence to convince the judge, who in turn is restrained by law to consider only evidence and testimony that is legally admissible, to come to a conclusion that the accused is guilty beyond a reasonable doubt.

In other words, where there is a reasonable doubt as to the accused’s guilt, the accused must be acquitted.

Similarly, there is the right of the accused to legal representation. It makes every lawyer’s toes curl when we hear passing remarks like “how can that lawyer represent that criminal”, because we know how essential this right is to even the most condemned person accused of committing the most evil crime.

Most importantly, no matter how guilty a person may seem, he must always have the right to have his side of the story heard.

Firstly, legal representation is essential in an adversarial legal system like ours where the judge listens to both sides of a dispute – prosecution against the defence as opposed to inquisitorial justice systems practised mostly in Europe, because the effectiveness of the adversarial system depends very much on what evidence in support of a person’s case is presented to the Judge.

The lawyer representing the accused, who has understanding of the rules and procedure applicable in any particular case, has the duty of pointing out when the accused has a valid defence or argument against the case being presented against him by the prosecution.

Secondly, legal representation has the ancillary purpose to ensure enforcement agencies (the police and prosecution) carefully collect evidence and treat the accused fairly when questioning him on the alleged crime and then, subsequently, conduct their case fairly when they present the case to the Court.

An accused can either employ a legal representative of his own, or if he cannot afford one and is eligible, can obtain legal aid which is made available by volunteer lawyers under the umbrella of the Bar Council.

Both the presumption of innocence and right to legal representation are essential to ensuring everyone (yes, that includes you and me!) is given a fair chance in the courts.

So imperative are these safeguards of civil liberty that the renowned English jurist William Blackstone (1723-1780) proclaimed that “it is better that ten guilty persons escape than that one innocent suffer”.

So the next time you feel angry at someone being caught for committing a crime, think carefully about his rights (and yours, too).

> Putik Lada, or pepper buds in Malay, captures the spirit and intention of this column – a platform for young lawyers to articulate their views and aspirations about the law, justice and a civil society. For more information about the young lawyers, please visit www.malaysianbar.org.my/nylc

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