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The case of the abused domestic helper, Nirmala, has stirred the Malaysian psyche in a way seldom seen before. The shocking extent of the injuries she has suffered arouses a deep sense of repulsion at the extreme cruelty of those acts of suggested torture, and widespread outrage towards the one believed to have committed them.

The Bar Council joins in the call for the person responsible to be made to fully answer for those horrendous crimes, and for justice to be done.

However, in the consuming heat of well-meaning public displays of revulsion, we must not forget that it is justice that our society demands and requires. The objective is not revenge, nor the sole satisfaction of some popular impulsive desire driven by large doses of anger and disgust.

In our system of criminal justice, it is required of the police to carry out thorough and professional investigations, of the prosecution to present evidence in a fair and convincing fashion, of the defence to put the evidence to careful scrutiny, and of the judge to mete out justice based on the evidence and the law (always acting impartially and without fear or favour). When all these departments function well, due process is rendered; and justice will then be best served. No matter how despicable a crime appears to be, or how much one believes that the available evidence can only point to one person or one conclusion; due process must be given. Trial must be fairly conducted by the court, not by the media. Conviction cannot be achieved or assumed by way of popular belief.

Hence, a suggestion to publicly shame not just the accused (in Nirmala's case) but also her spouse (even before she was charged in court) is rooted in emotion rather than principle. The comments by a Minister, that in a case such as Nirmala's the doctrine that one is "innocent until proven guilty" is unsuitable and that the perpetrator deserves to be prejudged, are wholly misguided. Convenience is seldom a good companion for justice. Tempting though they may sometimes be, shortcuts are neither safe nor equitable on the roadmap of criminal justice. It is inappropriate to demand punishment without or before due process. We cannot seek to do justice to one by perpetrating injustice on another. Suggestions of this nature will demote, rather than promote, the course of justice.

At the same time, it is heartening to note that there are voices of reason in the midst of emotional outcry, such as the well-argued editorial in the Sun on 25/5/04 that warns against the creation of "mob justice". They illustrate the growing maturity of Malaysian society.

Two other observations are inviting. First, in the past calls were frequently made for the public to refrain from commenting on a matter when it had been brought to court, on the ground that it had become, allegedly, sub-judice. In the present instance, such advice is not heard and has been discarded in its entirety. This serves as a good reminder of how, far too often in the past, the concept of sub-judice had been misemployed to curb freedom of expression. Second, one cannot help but wonder where public interest and outrage had gone to, when Ms Irene Fernandez brought to light some time ago serious allegations of abuse made by numerous foreign workers. Worse still, that courageous whistle-blower was instead harshly and unjustly taken to task, without outcry from the public.

There ought to be consistency in the exhibition of public concern and outcry, for it to develop into a truly positive and powerful impetus for social change and progress.

Dated : 26th May 2004

Yeo Yang Poh
Vice Chairman
Bar Council