Meting out justice with common sense and compassion — Jahaberdeen Mohamed Yunoos

MAY 9 — As a litigation lawyer doing criminal cases, I had to revisit my conscience many times over and over again.  No, it is not the common question that I get asked “how do you feel representing a criminal person?” 

What has bothered me more are other questions.

Firstly, is the apprehension that a person has been charged of an offence of which he is completely innocent. I have had at least a couple of cases where my client was completely innocent but the “system” had subjected them to the horrendous painful experience of going through a trial.

Even before the trial begins, the suspect may be subjected to the loss of liberty by being locked up in a police station for a few days under a remand order.

The process of ordering a remand is the very first important matter that a presiding officer must judiciously and more importantly, compassionately consider. The magistrate must never forget that in reality, the remand order may be abused simply to teach someone a lesson by someone else with connections. 

There are, of course, legitimate circumstances where a remand order can be properly given. For example, where the nature of investigations into the case requires it. However, with respect, I have also known of cases where a remand order was given as a “matter of procedure” when the situation does not reasonably
warrant it.

Secondly, is the very critical issue of bail after the suspect is charged for an offence. If it is true that we adhere to the principal that a person is innocent until proven guilty, then I would respectfully submit that the normal tendency should be to allow bail that can realistically allow the person to post it unless there are exceptional circumstances that bail should not be allowed.

What is the point of ordering a bail that the accused cannot afford? Obviously, there may situations where the accused may not be able to afford any bail. If he is a first offender and the principle that he is innocent until proven guilty is indeed a sacred principle of our justice system, should some other order be made so that justice can be done even at the bail stage? How can there ever be precedents, as some presiding officers are so fond of asking when they themselves are not willing to explore the pool of justice?

As I said earlier, I have acted for a client some 15 years ago who was completely innocent and finally acquitted without defence being called after four years. He had to spend three days in prison because his family had to raise RM200,000 which they didn’t have.

The bail was granted on the basis that the amount “involved” in the charge was some RM8.4 million. In this particular case, at the end of the day, he was found not guilty. So what is the relevance of the amount of the so called “amount involved” in the case of an innocent accused wrongly charged?

This particular client, though acquitted through the justice system of the courts, ended up suffering injustice in life. This is the reason why I keep emphasising that other than established judicial principles, compassion and sensitivity to particular facts and circumstances of the case should be given due consideration. 

In the case of that client, life went on as usual for everyone involved in the process but his life was wrecked. Luckily, life has its own sense of justice and it balances the weaknesses of human beings.

As I grow older, I begin to realise the wisdom of the adage that it is better to let 10 guilty persons free than to convict one innocent person. Our justice system should be wary of possible abuse of the system or recklessness that may cause misery to those who may be wrongly or mistakenly charged even without any intended malice.

Human beings make mistakes. Hence, at the bail stage, for first offenders, where the situation permits, benefit should be given to the accused.

It is considerations such as these that I find it appalling, with respect when some prosecuting officers in some cases robotically canvass the so called “serious offence argument” and “amount involved argument” forgetting completely the main purpose of bail is to reasonably ensure that the accused does not abscond from court appearances.

It is incumbent that courts mete out justice at every step of the way until the conclusion of the trial. We are dealing with human beings who have families and relatives like us.

We should be able to distinguish between persons who are charged with a crime for the first time and repeated offenders and so on. The understanding of “established” legal principles coupled with a sense of justice is critical.

I find it painful, though professionally I should not be, when I sense that some sort of injustice has taken place. On the other hand, I am extremely grateful and have the greatest respect and love for some of our judges who meticulously try very hard to mete out justice. 

These are the true, clever and compassionate judges that should continue to serve.

* Jahaberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at [email protected]

* This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.