In defence of – the right to a fair trial

Cases are often closed when suspects are shot dead by police or detained without trial. Is this what Malaysians want, wonders Charles Hector.

It is always easy to arrest and detain people and tell the whole world that the perpetrator of the crime has been ‘punished’. Case closed.

It is always easy to shoot and kill people and then boast that those killed were really criminals, and the killings had ensured that justice was meted out to the perpetrators of this and that crime. Case closed.

But who tells us that these are ‘criminals’? It is the police and the government. But doubt remains as to whether these people were really criminals, or whether they were actually innocent of the crimes they had allegedly committed. Or whether they were being detained without trial or ‘shot and killed’ just so that the police (and the government) could tell the people that the perpetrators had been dealt with.

There is just too much room for injustice – the wrong people detained, and worse still, killed when they were actually innocent.

That is why good, civilised and justice-loving people all over the world, including Malaysia, insist on the right to a fair trial before an independent court before a person can be deprived of his/her liberty or life.

We demand the right be given to the accused so that they would be able to defend themselves – and to challenge the witnesses and any evidence the police (prosecution) have.

In Malaysia, like in many other countries, after the prosecution has closed their case, the judge evaluates the evidence tendered, determines its credibility and sees whether it is sufficient to show that there is indeed a case against the accused person. If so, then and only then, would the accused be asked to present their their case – call their witnesses, etc.

At the end of the day, the judge determines whether the prosecution has managed to prove the charge against the accused beyond reasonable doubt – a high standard indeed because we do not want to make the mistake of sending the wrong people to prison or to the gallows.

But a judge could make a mistake, and that is why we have the right to be able to appeal to higher courts, and in Malaysia that right is generally for two appeals. If those convicted are not happy with the decision of the High Court, they can appeal to the Court of Appeal (where at least three judges sit in the panel hearing the appeal), and if still not happy, they can appeal to the Federal Court (where at least three judges sit in the panel hearing the appeal).

After appeals have been exhausted, they can still apply for a royal pardon.

Police and prosecution makes mistakes:

- well, look at the number of people charged and tried in court, and then found to be not guilty
- look at the number of peoples who have been charged in court, and subsequently the charges are withdrawn and the accused are DNAA [discharged not amounting to acquittal] or just discharged,

Judges make mistakes:
- Look at the number of times that the appeal courts have overturned convictions and acquitted people.
- Look also at the number of times that appeal courts have reduced charges or even reduced sentences

In this modern age of CSI, DNA, CCTV, etc, the police/prosecution have so much more skills and capacity for investigation to get the required evidence/witnesses to convince a judge (and the appeal courts) that a person is guilty of a crime he or she has been charged with.

Malaysia must acknowledge the importance of right to fair trial

In so doing, has taken the initiative to make available legal aid to the poor, i.e. to those with an income of RM30,000 or less annually. This is to ensure that the right to be defended by a lawyer for those who cannot afford a lawyer is there (see http://www.jbg.gov.my/index.php?lang=en). Likewise, the Malaysian Bar, even before this, has been providing Legal Aid. [Before this, the Malaysian government did not provide legal aid for those charged in criminal courts.]

For those charged with offences carrying the death penalty, in Malaysia if they do not have a lawyer, the court will appoint a lawyer for them.

Malaysia also amended the law requiring the prosecution to provide documents/evidence that had been gathered during the investigation to the accused/defence lawyer. This is essential and now allows the accused and/or their lawyers to better prepare for the case. The prosecution by law is required to even provide the defence any evidence/document that is ‘unfavourable’ to the prosecution.

Malaysia, also noting the danger of using confessions and statements made by the accused after being arrested, has now barred the use of such confessions/statements by the prosecution. The accused (defence) have every right to use them if they want to.

Of late, Malaysia also repealed the ISA and some laws that allowed for detention without trial – again a positive move

I have got a very positive record, for example I have disbanded the Internal Security Act, which is detention without trial,” he said, adding the abolition of the Emergency Ordinance (EO) – Prime Minister Najib Razak

But alas, there is some concern that Malaysia may be sliding back on human rights..

A new detention without trial law…?

Introduction of a new detention without trial law vide the proposed amendment of the Prevention of Crime Act.

No trial and no right to defend oneself against the allegations made for detention without trial.

Innocent people detained without trial cannot also say and let alone prove that they are being wrongfully detained under a false allegation. Yes, they cannot challenge the decision to detain – they cannot file a case asking the judge to challenge the reasons for their detention.

‘Shoot to kill’ incidents

There are just too many people being shot dead by the Malaysian police. Worse, the police go out and proclaim that these people were criminals. If they were criminals, suspects or linked to crimes, surely there would be a paper trail – arrest warrants, letters/notices asking them to appear at the police station for investigation of crimes…which if they do not attend usually is followed up with an arrest warrant.

Police are empowered to arrest people, and in so doing to use reasonable force – and there are too many incidents that raises much doubt as to whether the police went to kill or to arrest. There is no open independent tribunal or mechanism that investigates and determines whether police action that kills has been justified or not.

It is all systems go for PKR vice-president N. Surendran to follow the police on their operations to nab culprits involved in gun-related crimes. Inspector-General of Police Tan Sri Khalid Abu Bakar commended Surendran for taking up the offer to have a first hand look at the difficulties police face in dealing with dangerous criminals. – The Star, 15 October 2013, ‘Police let Surendran tag along on raids against gun-toting criminals’

The police invitation to MP Surendran to tag along for these raids raises questions. Police know and prepare beforehand when they go for such raids where people end up being shot dead – this is very wrong.

The question is if and when the police know these suspects, did they call in the suspects for investigation at police stations first – and is these suspect did not show up, was an arrest warrant issued? If there are no such attempts, then such raids are questionable. Letters/summons to be present at the police station can be sent by post or hand delivered. Are there such documents?

The situation is different when police arrive at a crime scene and the perpetrators are there and may open fire, and the police respond and people get killed. Likewise, at an ordinary roadblock, where perpetrators may suddenly open fire on the police. But to have planned raids where they can also invite an MP to tag along raises many questions..

Deaths in custody

There have been too many deaths in police custody. Some suicides? Wonder how this is possible when there are police personnel watching the police lock-ups all the time and the CCTVs. Of course, in the past these CCTVs did not have recording capabilities, and it made it difficult for investigation and for the Coroner’s Court to determine how a person really died.

Is there still torture and police brutality in Malaysia? A former head of the police beat up Anwar, ….When people in lock-ups die due to illness and/or medical conditions, one wonders why they were not in hospitals or sent to hospitals sooner?

The way forward

There is much to be done in Malaysia and the decision is with you and me, Malaysians. Our ‘leaders’ in government are the peoples’ representatives and they act on behalf of you and me. So we cannot remain indifferent but have to decide what we want for Malaysia.

Many are just not bothered as they or their families are not (or not yet) the victims – but this is a self-centred and irresponsible attitude. We have to change because all that happens reflects also on Malaysia and Malaysians, and we who silently allow injustices to continue are just as guilty as our elected representatives and our employees (the police, etc) who do these wrongs.

We have to insist that the fundamental right to a fair and open trial before an independent judge be accorded to all persons (even those that the police label “gangsters” and “criminals”). No one should be deprived of their liberty or life without first being tried and convicted in a court of law.

About Charles Hector

Charles Hector, an Aliran member, is a human rights advocate based in Temerloh, Pahang. ALIRAN