`


THERE IS NO GOD EXCEPT ALLAH
read:
MALAYSIA Tanah Tumpah Darahku

LOVE MALAYSIA!!!


 


Friday, September 7, 2012

Guilty until proven innocent


Under our imported and seemingly eclectic jurisprudence, an accused is presumed innocent until proven guilty beyond reasonable doubt. 

That is the standard by which the Anglo-American-Malaysian actors in the noble realms of the offices of the prosecution and the defense operate, with equal vigour, buttressed by robust investigations, motions, briefs and oral arguments to effectuate justice in an orderly fashion. 

Since we are jurisprudentially impotent, in Malaysia, without a jury system, it is left to the presiding judge(s) to decide whether guilt of the accused is established beyond reasonable doubt.

NONEOur judges are judicially free to utilise any other suitably appropriate judicial standard as a yardstick when arriving at a decision.

With the recent amendments to section 114A of the Evidence Act, we are forced to play football using badminton rules. 

With this cruel and insane amendment gaining traction in the halls of injustice, meaning the AG's Chambers, the Home Minister's Office, the de facto (not de jure) Minister of Law's Office, the hapless accused has to prove he or she is innocent when allegedly found committing a crime with whatever resources, usually limited, he or she is able to marshal and muster. 

Since the government is the entity bringing the charge, it has the unflinching power to change any rule at any time to meet its sinister aims and objectives. 

The burden has now shifted. The rules have now changed. The players are now in confusion. The actors are now in disarray. At least, it seems that way. 

But, there is a great source of light at the end of the tunnel despite the tunnel vision expended to change the existing rules by the government for glaringly obvious, and unfairly advantageous reasons. 

NONELet us take stock of the scenario. In the event Parliament decides not to do anything with re-amending the amendment, the judiciary has to act because this organ of state can afford, and award, relief as mandated by the Federal Constitution (FC). 

The judiciary can, and must, use the FC to stump the amendment because the FC is the supreme law of the land according to Article 4(1) which constitutionally triggers and activates a judicial voice to void any law passed that is inconsistent with the FC. 

The recent amendment to Section 114A of the Evidence Act satisfies this mandate. It is a law, albeit an amendment, that is inconsistent with the FC. 

Whether our judges will rise to the occasion is the burning question. I believe they will because, as interpreters of the law, they have a lot of latitude provided their aptitude and altitude does not get blurred with the ‘putrajayan' attitude exacting a weird sense of gratitude from our judges. 

That is the main reason I disagree with our judges being awarded datukship and other glowing titles of nobility. 

I know one High Court judge who has agreed with me that while in office they must shun these titles if the concept of an independent judiciary is to gain lasting traction in ‘Bolehland'. 

It is another matter when they retire and are awarded titles for their contributions to the country. This honourable judge will know who I am referring to because we used to bicycle to work in Teluk Anson late 60s before we became lawyers and judges. 

Will judges exercise their powers?

Back to 114A: The judiciary can also use its judicial review powers enunciated in Article 162(6) to defeat a legislative edict when it is bereft of constitutional consistency, conformity, and certainty. 

Of course, Parliament may overrule the judicial declaration by passing another law, but the judiciary can swing the pendulum the other way too. This is the bane of a Westminster-style parliamentary democracy that we inherited. 

NONEThis is the optimum moment in history when our judges ought to be assigned special security personnel outside the influence and ambit of authority of the prime minister, Putrajaya, and the Royal Malaysian Police. 

A sort of a Praetorian Guard committed and dedicated to protecting the judiciary while getting the judiciary's powers of arrest being carried out without executive order. 

The judiciary is a co-equal sovereign vis-a-vis the executive and the legislature. This can be easily done with a constitutional amendment for which our parliamentarians are sinisterly and uniquely qualified, especially the likes of the de facto law minister.

The judiciary may interpret Article 10(c) of the FC to form associations with the concept and doctrine of "innocent till proven guilty" to trump and stump the guilty till proven innocent fallacy. 

The judge is the interpreter of the law and the Constitution. The FC does not restrict the power of a judge to declare an Act of Parliament void when it is seen and found to be repugnant to the Constitution.

Assuming a litigant wins the day in a trial court and the judge valiantly ignores the new amendments to Section 114A, and assuming the attorney-general decides to appeal the decision of the trial court to the Court of Appeals. 

The litigant has the right to ask the Federal Court under Article 121(2)(b) to act as an original or consultative jurisdiction court which is mandated under Articles 128(1)(a) to decide whether a law made by parliament - in this case an amendment to Section 114A - is invalid.

I have no reason to doubt that the Federal Court will read the amendment to Section 114A as ultra vires the provisions of the FC.

Finally, the question of the constitutionality, legitimacy, validity and veracity of the amendment to section 114A can be submitted to the Agong pursuant to Article 130 of the FC which impels the Agong to refer the matter to the Federal Court for its opinion on the question of this unruly amendment as to the effect of any provision of the supreme law of the land.

The Agong's request to the Federal Court may have more authority and bite than a hapless litigant's request through his lawyers. 

But, recall, the Agong has executive authority according to Article 39 of the FC. I am sure His Majesty will rise to the occasion.

If our Federal Constitution is to be deemed a binding and sacred document adorned with all the fire, fury, and purpose of equality (FC, Article 8), then our judges have the constitutional power to unseat an unfair, unjust, unconscionable and unconstitutional amendment. 

Our judges have the onus to strike the last nail into the coffin of the new Section 114A, and ultimately write its obituary. When is the deadline?

JUDGE NAVIN-CHANDRA NAIDU is a lawyer based in Utah, United States.

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.