Sunday 2 September 2012

Flaw in justice system — Ravinder Singh

2 SEPT — Looking at some Court decisions it is manifestly clear that there is a great shortcoming in the legal system of the British that has been adopted and is being practiced in Malaysia.

It does not have an internal mechanism to tackle illogical judgements by the bench. As a result the justice system sometimes ends up being most unjust.

The most recent case of the Court of Appeal reversing the decision of the High Court which imposed a custodial sentence in the case of the child rapist is one such example.

The Court of Appeal set the rapist free (that is what a suspended sentence means, does it not?) in total disregard of the provision of the law on statutory rape. There is a rule in the legal system that decisions of appellate courts (i.e. the Court of Appeal and the Federal Court), must be followed by the lower courts when deciding on similar cases. The appellate court decisions are known as precedents.

Thus, the Penang Sessions Court had no choice but to follow the master, so to say, immaterial whether the master was right or wrong. This precedent could only be overturned by the Federal Court. However, the Federal Court does not take it upon itself to review the case. Even if the prosecution wanted a further review of the case, the door is closed as only two appeals are allowed in a case.

This case was originally heard in the sessions court. It was first appealed to the High Court and then to the Court of Appeal. In reality, the Court of Appeal decision means that the judge had taken it upon himself to change the law on statutory rape. Did he have the authority to do so?

Obviously, his personal feelings or views had to do with his judgment which he justified by giving three ‘reasons’, i.e. the immature child had given “consent”; the young adult sportsman perpetrator had a bright future ahead and thirdly it would not serve the national purpose by sending him to prison.

Not only is the public outraged, but also a former member of the bench (Datuk Shaik Daud Ismail) has expressed outrage.

The Minister of law said he will look into changing the law. In the first place, is it the law that is not adequate, or is it the judgment that is manifestly wrong? Perhaps this is his solution because judges cannot be pulled up for their interpretation of the law. So he feels the way to stop this judgment continuing as a precedent is to change the law on which it was based.

Another manifestly wrong judgment in 2000 was by the Federal Court in the case of Adorna Properties Sdn Bhd v. Boonsom Boonyanit that held that the land fraudulently sold could not revert back to its original owner.

This judgment was finally overturned by another bench of the Federal Court in 2010 when another similar case came before the Court.

If a rich man feels a lower court has not made the right decision, he has the money to appeal up to the highest court. When a poor man feels aggrieved by a court decision, he has to live with it for lack of money to appeal.

And if, in the case of the poor man, the decision was by the High Court or first appellate court, the whole of society has to live with that decision as it is a precedent case. Is there no flaw in the justice system if the system allows clearly wrong decisions to stand and worse, even be precedents for the lower courts to follow? Does this aspect of the justice system serve the national interest, as it allows the clearly wrong decisions to be mandatorily applied by the lower courts? Imagine this happening in a hospital? It is time for some serious soul searching on this anomaly in the justice system.

There should be a mechanism to address instances of seriously flawed judgments and not let them stand as precedents. Judges are not infallible. They are humans and despite all the training, could sometimes be wrong as we have seen in the Adorna and the recent child rape cases.

It must surely be in the national interest for the justice system to have a system to correct the manifestly obvious mistakes of judges and to remove judges who do not understand the law.

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