PETALING JAYA: Anyone who has been charged with a criminal offence appearing before the Court of Appeal must be represented by a competent counsel to ensure they get a fair hearing before a jail term is imposed, lawyers have suggested.
They said imprisonment was a serious mode of punishment as it deprived the liberty of individuals and judges must be judicious in determining the measure of such custodial sentence.
They said the appellate process would be tainted with unfairness if individuals who were ignorant in law had to face experienced deputy public prosecutors (DPPs).
Lawyer A Srimurugan said whether one was sentenced to a day or several years of imprisonment was secondary. What was crucial, he added, was that the person must have the services of a lawyer as the Court of Appeal was the apex court for matters that originated from magistrates’ or sessions’ courts.
“Therefore, no one should be left to fend for himself against DPPs who are acting for the state,” he said.
Srimurugan said the fundamental liberties in the Federal Constitution such as the right to equal protection under the law was denied to “defenceless appellants” when faced with skilled DPPs in the final court of appeal.
He was responding to the case of a labourer whose appeal to reduce his 18-year jail term and six strokes of the rotan for committing incest with his 12-year-old daughter failed before the Court of Appeal on Thursday.
The 37-year-old, who was without a lawyer, wanted the court to restore the sentence of the Sessions Court which had imposed a jail term of 10 years and three strokes of the rotan.
In the same court, a youth who was also unrepresented, failed in his appeal to restore the sentence of the Sessions Court for armed robbery.
A High Court had ordered his sentence on two counts of the offence to run consecutively instead of concurrently. This means, the youth will be spending a longer duration in jail.
Lawyer Salim Bashir said lawyers should appear for any person, irrespective of whether one was an appellant or respondent because complex issues and novel questions of law would arise during appeal.
He said offences such as rape, armed robbery, culpable homicide not amounting to murder, drug possession, and corruption were serious offences that carried a jail term of up to 30 years.
Salim said there were instances where the public prosecutor had appealed against the inadequacy of sentences imposed by a lower court and the respondent who appeared without a counsel could not match the submission of the government lawyer.
The lawyer said prison authorities should liaise with the state Bar committees or the National Legal Aid Foundation for lawyers to represent those already serving jail terms in the appeal process.
Lawyer Muhammad Rafique Rashid Ali said judges in the Court of Appeal should consider adjourning a case when the appellant or respondent was without a lawyer.
“Such an appeal should not proceed just to merely dispose of the case. Justice hurried is justice denied,” he added.
Rafique also wants the Court of Appeal president, who is the chief administrator, to look into ways to ensure everyone who appears before a bench is represented. - FMT
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