Getting our judicial review right

Judging from the comments on social media, anger is percolating among some ordinary citizens that Datuk Sri Najib Razak’s day of reckoning has not arrived. This sentiment is understandable, especially against him to face the court of over global 1MDB scandal and the backdrop of ‎the astonishing or obscene amount of jewellery and cash found at properties linked to the former first couple.

Whatever it is, in our criminal justice administrative system we have to wait for the ongoing SRC’s trial to complete as our principle is that a person is innocent unless proven guilty in court.

Understanding the criminal justice administration system

As regards to the Criminal Justice Administration (CJA) in Malaysia it involves law enforcement agencies, prosecution and the courts. The law enforcement agencies amongst others, consist of the Malaysian Anti-Corruption Commission (MACC) and the Royal Malaysia Police force while prosecutions are conducted by the Deputy Public Prosecutors from the Attorney General’s Chambers (A-G Chambers) and judges preside over the court cases. It is best that the investigators investigate, prosecutors prosecute while I leave the trials and sentencing to the courts.

Based on my experience, there is a clear process from the start of investigation right up to the stage of the court proceedings.

<<Along the way there are a few factors that can influence the outcome of the trial of corruption cases.>>

Investigating Officer

All investigation papers (IPs) will be processed and investigations conducted by the appointed investigating officer (IO) of the MACC or police force based on complaints lodged with the respective enforcement agencies. The IPs will consist of statements recorded from witnesses and suspects, and documentary evidence collected during the investigation process to understand the facts of the case. The IO’s duty is to collect sufficient and relevant evidence to prove the ingredients of the charge against the accused.

High quality of investigation papers is vital. Currently, to expedite the investigation process as well as producing a more transparent and quality IPs, case investigations are carried out in group via the Management Team-Based Investigation (MTI). The evidence should be available up to at least 90% of the requirements and only the most of complete of MACC’s cases would be referred to the A-G Chambers for further actions or directions. The DPP will decide whether to pursue any charge on the facts of the case. The MACC’s job is only to investigate and the AG will have made a decision to charge.

Deputy Public Prosecutors

Secondly, the role of the prosecutors (DPPs) are very important as they are the principal prosecuting authority in the country. The DPPs must obtain reliable and comprehensive information evidence in the IPs referred by the MACC or the police and be able to determine the sufficiency of evidence provided by the IOs to prove a prima facie case before providing the consent to charge them in court. DPPs must make a decision to charge or not to charge without fear and favour. There must be no political interference. The quality and efficiency of the work of prosecutors are vital and they must possess high integrity, wide experience, talent, skills and knowledge in conducting prosecutions in high-profile cases.

Lawyers

In a corruption trial, there are white-collar criminals and fraudsters who have money and influence. They have money to hire the best and most prominent lawyers in the country. Some of them win their cases and get acquitted based on a technicality. In some countries. defense counsels have a good relationship with the presiding judges.

A few years ago at the opening of the Legal Year, Chief Justice Tun Arifin Zakaria had asked lawyers and the public “to restrain from corrupting” the judiciary, stressing that both the giver and taker were equally guilty.

The Bar Council has also referred cases of alleged corruption to the Malaysian Anti-Corruption Commission involving a retired judge and two sitting High Court judges.

<<It should be noted that in a criminal case the burden of proof beyond the reasonable doubt is on the prosecutor. This requires a credible, certain amount of evidence.>>

White-collar offenders and fraudsters will normally make excuses not to be present in court to face charges or court proceedings. It is quite normal for politicians in Malaysia who are facing corruption charges to produce medical certificates or be admitted to an intensive care unit (ICU) when their cases come up for trial. It is a question of ethics and integrity when lawyers purposely try to delay cases in court.

In Great Britain, judges will write to the Bar Council and that may lead to a disciplinary action being taken. Such excuses to delay the court proceedings may result in the witnesses turning hostile or become an uncooperative witness. To win the case some could be bribing the witnesses not to tell the truth, others go to the extent of extorting or even killing the witnesses.

The Judges

The question of whether there is a proof or not, the judges must decide cases on merit and give decisions without fear or favour. About 2,400 years ago, Socrates, a Greek philosopher described the essential qualities that a judge should have namely to hear courteously; to answer wisely, to consider soberly; and to decide impartially. Aristotle passed this remark, rendering justice, in its larger sense, is giving every person, his or her due.

Sad to say, according to Transparency International’s General Corruption Barometer 2017, 33% of Malaysians perceived that judges and magistrates are involved corruption compared to Indonesia (32%), (Vietnam 27%), (Pakistan 41%) and (Cambodia 59%).

Unfortunately, in 2007, Perak Sariah High Court Judge was found guilty and sentenced to 19 years’ jail and fined RM210,000. But last week MACC arrested a Kuala Kubu Bharu Session Court judge, a DPP, a lawyer and six rank-and-file police personnel for alleged corruption, in connection with the charging and release of 15 illegal immigrants. Prior to this, there were DPPS, lawyers and including magistrates who had served in Pontian, Kuala Lumpur and Kuching were arrested by MCCC.

In fact, the judicial and legal institutions are an important check and balance mechanism in the country. These institutions should be independent of the other branches of the government so they are trusted by the people.

<<The Pakatan Harapan Government has to ensure the appointment of judges are based on integrity, honest, merit and experience, regardless of political interest.>>

As promised in the Pakatan Manifesto, in order to restore public trust and confidence in the judicial and legal institutions, the power of the Prime Minister to influence the appointment of judges have to be removed. This is to ensure that there is no abuse of power. If impunity is not abolished, all efforts to bring an end of corruption in Malaysia will be in vain.

Due to the complexity of the cases today, judges must not only have a degree in law but also some knowledge in other areas such as forensic accounting, cyber crime and big data. Judges must develop an interest in modern technology, learn about IT and conduct research professionally before passing decisions. Judges must have high integrity, improve their judging abilities, not bias and being honest throughout their career so that public confidence in the judiciary could be maintained and strengthened and there will be positive public perceptions of the judges.

Lately, there is an improvement in the judicial system where technology such as the e-court system, using a recording system and an IT structure which includes case management, court recordings and transcription are available. Court cases will be fast and more efficient with the real-time transcription for the judge and counsel to see words on their own screen as they are typed. This is important in the high-profile cases whereby the spoken words can be saved in the judge’s or counsels’ computers or thumb drives. Using this digital system will reduce cost and the long wait for trial and the length of trials.

Upholding the rule of law

To expedite the proceeding of corruption cases, all relevant parties should be responsible and discharge their duties accordingly. The prosecutors must be well prepared and ready with the prosecution witnesses to adduce evidence in court, while the lawyers and defence counsel must make sure his clients are present in the court to face the trial.

Judges, meanwhile, should be able to conduct fair, neutral, without fear and favour, and impartial hearings so that justice will be determined by the law and the facts of case regardless of social status, beliefs, race or other factors, fairness is determined by applying the law in a neutral manner even though it may lead unpopular decisions.  Otherwise, there is no meaning to the “rule of law”.

Dato’ Sri Akhbar Satar is the former President of Transparency International Malaysia

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