"In cases where the Prosecution has not been fair or ethical it might lead to a distrust in the government and the belief that public authorities are in a vast conspiracy to violate the rights of individuals (and I add) "to get the judge to free the accused from shortage of the evidence"".
"Of course in cases where the Prosecution has put in all relevant evidence enough to convict and yet the judge says it is insufficient to establish a prima facie case then the limelight can turn on the judge".
My Comments : Yes I included the Judiciary in the above list. Do read on.
First of all here is an interview with former High Court Judge Dato Syed Ahmad Idid, who is a good friend of mine, which appeared on Newswav here. The two quotes in large type above are from that interview.
In the picture below Dato Syed Ahmad Idid is on the left.
An Interview with Dato Syed Ahmad Idid (SP) formerly a High Court Judge.
By MiharDias (C) Copyright September 2022
The acquittal of the highly placed political figure by the court in Shah Alam attracted wide attention. I sat down with Dato' Syed Ahmad to get his views as a former judge.
Dato' Syed Ahmad: Do not blame the judge though he pronounced the decision.
Of course in cases where the Prosecution has put in all relevant evidence enough to convict and yet the judge says it is insufficient to establish a prima facie case then the limelight can turn on the judge.
Mihar Dias: Do you know of similar cases elsewhere?
Yes. We do have many similar cases in the USA, the UK, Australia and other countries of, "Prosecutorial misconduct" which has to be proven before one can blame the AG or others.
Mihar Dias: What do you mean by prosecutorial misconduct?
Dato' Syed Ahmad: Prosecutorial misconduct or, (I add), incompetence in jurisprudence is "an illegal act or failing to act on the part of the prosecutor".
Prosecutors in the US are bound by a set of rules which aim at fair and dispassionate conduct. (Bar Rules and DPP guidelines).
Our prosecutors (be they the AG or DPP or from the Police and other authorities) are expected to earn their salaries by adhering to similarly high standards.
In 1993 the 6th Circuit Court of Appeals (in the United States) ruled John Demjanjuk had been a victim of prosecutorial misconduct. Federal prosecutors had withheld evidence. John's sentence was overturned.
I need not dwell on the case of O. J. Simpson (in the United States) where a detective had planted evidence at the crime scene. As a result, Simpson was found not guilty.
When I sat as judge in the High Court it worried me about the Prosecution and witnesses who tell untruths.
Mihar Dias: Any local cases?
Dato' Syed Ahmad: I recall a Malaysian case where a police officer had placed a hand grenade in a Chinese woman's house. Her house was raided and she was arrested but the woman was later found not guilty.
I believe what Francis Fukuyama said may occur in our country, too.
In cases where the Prosecution has not been fair or ethical it might lead to a distrust in the government and the belief that public authorities are in a vast conspiracy to violate the rights of individuals (and I add) "to get the judge to free the accused from shortage of the evidence".
In 2006 Duke University men's lacrosse team hired a female stripper. She accused three of the players of rape. The DNA did not point to them and one had an alibi. The case against the players collapsed. All charges were dropped. The AG took the unusual step of declaring the players innocent.
The DPP in that case was disbarred.
A murder suspect was found guilty. After 25 years in prison evidence was provided that the DPP had DNA evidence which pointed to another man. The prosecutor later pleaded guilty to withholding evidence essential to fight the charge. He was sentenced to 10 days in jail and disbarred.
Sometimes we find Prosecutorial impropriety. Judges may then cite such misconduct as a reason to dismiss charges.
The Prosecution too need to explain how or why they lost their cases and the guilty went free.
Mihar Dias: Do you think good training may help?
Dato' Syed Ahmad: I was trained by .. . Before I prosecute I must know the evidence thoroughly and that the evidence is substantial. (Cited as 90% certain to ensure conviction) before I take the matter to court. Except for one case in Kuala Kangsar magistrates Court, all other cases were "won" and substantial amount of fines were collected plus confiscation of goods and vehicles.
Mihar Dias: What about "coaching" the witnesses?
Dato' Syed Ahmad: Telling a witness to lie at a trial or knowingly allowing him/her to tell untruths is indeed horrid. This kills our system and brings shame and disgrace to the Prosecution.
So put in another way, Prosecutorial misconduct is when the prosecutor commits ethical or other violations... In order to get conviction or secretly help the accused to be freed.
I am not commenting on past or current cases but many lessons can be learned or gauged from past or current experiences. Especially in cases involving top corporations and money.
One must be mindful of the "protector" who has power to decide. With so much evidence and clearcut avenue towards conviction the "protector" will sign off the file with NFA or "No Further Action". The matter stops and the guilty is hidden under that decision.
Where the cases deal with money via theft or fraud the persons involved will try to gain favourable decisions for themselves.
They may flaunt their riches and pay out bribes as if there will be no tomorrow. After all acquittal is the aim.
Mihar Dias: Whom do they pay!
Dato' Syed Ahmad: I leave this to your honest judgement on human weaknesses.
Mihar Dias: Thank you for sharing your views with me.
My Comments : The points made by Dato Syed Ahmad Idid in the frank interview above are quite clear. Siapa makan cili biar dia rasa pedas ok.
But I like to focus on one statement made by Dato Syed Idid and expand on it some more. In the interview he said :
"The Prosecution too need to explain how or why they lost their cases and the guilty went free".
Well we know that in ALL countries the Prosecutor himself cannot be held legally liable for how he does his job - even if he is negligent. He has full legal immunity. Otherwise no one will want to become a Public Prosecutor.
If he commits a crime (like receiving a bribe to favour someone) then of course the Public Prosecutor can himself be prosecuted. But such cases may be difficult to prove.
In our country a midget shrimp was once hand picked by a super corrupt moron to become the prosecutor to decide over corruption charges levelled against the corrupt moron. As can be expected, the midget shrimp cleared the corrupt moron of all charges.
Our country Malaysia has unique problems which are of pandemic proportions.
No. 1 Corruption is at the top of the list.
No. 2 is Incompetence
No. 3. Then we have race and religion based politics which can also screw up justice and freedom in our country.
No. 4 We have really outdated and stupid laws like the sedition laws, the Stone Age defamation laws, the multimedia laws etc which prevent me from even giving examples of "race and religion based politics which can screw up justice and freedom" without the threat of facing some action taken against me.
This is the situation in the country. The general public is stupid. (I am referring to you too, dear reader).
When we are stupid the clever beggars will climb on our shoulders and piss on our heads. Which is what they are doing everyday, non stop.
Like many other people I too was shocked that that crook was cleared of all those charges. And in the same week two other crooks also had all the charges against them dropped. DNAA or discharge not amounting to acquittal. What is going on in this country?
Are things getting back to normal? The corrupt can get away clean with stealing OUR money? Some of their bank balances have been leaked here and there. These thieves seem to have millions and millions of Ringgit in their bank accounts. Or in the bank accounts of their wives, children and even mothers. That is OUR money. Public funds. They stole our money. And they are getting away scott free?? What kind of country is this?
These are problems that are not necessarily unique to Malaysia. Other countries have faced similar problems and they have worked out solutions to try get rid of such problems.
One of the easiest, cheapest and effective methods to curb corruption, abuse of power and incompetence is to make high public officials be answerable to the public on their job performances. High public officials means those who usually have full legal immunity or partial legal immunity in doing their jobs like the AG, IGP, EC Chairman, MACC Commissioner, Immigration DG, BNM Governor, Chief of Armed Forces and the Judiciary.
Let me be clear : I am not suggesting that these folks be held legally liable for any shortcomings in their daily job performances. As I said if we do that then no one will want to be the AG, IGP, EC Chairman, MACC Commissioner, Immigration DG, BNM Governor, Chief of Armed Forces or become a judge.
What we must do is make these high officials present Report Cards to Parliament (bipartisan Parliamentary Committees) on a regular basis (every six months would be good).
To get an idea of what I mean you can see the following three YouTube videos (one of them is very long) which show the Director of the FBI in the United States, the Attorney General of the United States and some Judicial Review Committee of some sort being grilled by members of US Senate / Congress over their various departments.
FBI Director https://youtu.be/GlD2P4194hg
US Attorney General https://youtu.be/q5v7oRAbnxQ
US Supreme Court https://youtu.be/GKmUEyjQIAM
This is what we need here in Malaysia.
Every six months the AG, IGP, EC Chairman, MACC Commissioner, Immigration DG, BNM Governor, Chief of Armed Forces and the Chief Justice should present a Report Card to a bipartisan Parliamentary Committee.
In the YouTube video above and other such videos I watched the Director of the FBI being asked to explain how he spent taxpayers money on investigating his cases, how effectively public funds were used to fight crime etc.
Similarly the Attorney General of the United States was asked to explain how he spent the taxpayers money (the Budget allocations) to prosecute cases.
Yes I know we have Ministers who can be asked the same type of questions in our Parliament but the Ministers are politicians. And as we have seen too many of them are corrupt. And grossly incompetent. We cannot depend on the Ministers to give honest straight forward answers. They are liars.
But a Civil Servant is in a different class. A Civil Servant is not a politician. If a Civil Servant is caught lying or twisting the facts he can suffer serious consequences. And nowadays with the Prime Minister changing FOUR TIMES in four years the Civil Servants in Malaysia cannot expect "political protection" like before. Those days are over.
I would like to hear our Attorney General explain to a bipartisan Parliamentary Committee (with live broadcast via TV and Online media) how much taxpayers money was wasted to prepare 40 charges against a politician and then to have all those 40 charges simply dismissed by the High court for a lack of evidence.
There must have been hundreds of personnel from the MACC, Police and the AG's Chambers involved, spending hundreds of man hours, using men, material, resources and time spent to investigate the cases and prepare the charges to be presented in Court. Millions of Ringgits of taxpayers money must have been spent. And it was all thrown out the window. 40 charges were dismissed.
How can the Attorney General bungle on ALL 40 charges? Couldnt you even have prepared better on one, two or three of those 40 charges?
As I said of course we cannot hold the Attorney General legally liable for this bungle. He has full legal immunity. But the AG must be held answerable to the Malaysian public for his work.
The same goes for the IGP, the Commissioner of the MACC, the EC Chairman and all the other high public officials listed above. Their portfolios have a larger than normal effect on the peace, security and economic well being of this country.
I dont think the Pengarah Jabatan Bomba needs to present report cards to a Parliamentary Committee but most certainly the IGP should inform the Malaysian public (via regular Parliamentary hearings) about the crime situation in the country.
Tell the Malaysian public how our taxpayers money is being spent. The Police spend so much money buying expensive Police patrol cars, with radios, weapons, blue flashing lights (which they use to push other cars aside during traffic jams). So tell us how you are solving crimes, what is the drug situation in the country, how are you progressing on handling corruption in the Police force.
May I repeat for the third time : we cannot hold these high officials legally liable for any shortcomings in their job performances. They are immune from prosecution and let it remain so.
But what we can do is to appoint them on THREE YEAR contracts (which is the case now) but make their contracts subject to annual renewal, subject to them presenting favourable Report Cards to that bipartisan Parliamentary Committee.
Meaning if they are under performing then their contract will not be extended for the full three years.
As I said this is Malaysia. We have our own very unique problems. Corruption, incompetence, racial and religious bias seems to afflict many people, including those holding high public office. So we need unique malaysian solutions to eradicate these problems.
It will also make all our high public officials tip toe to work every morning - better than the best ballerinas.
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