Monday, March 6, 2017

What is a ‘just’ justice system?

IT is pointless to call a system a justice system if it is not just. If that is the case, then it is merely oppression by powerful institutions.
There are several features that most of us can agree that a just justice system must have. It is often said that the most pivotal part of the justice system is the administration of justice by the courts of law.
Firstly, it must be accessible to everyone in the country regardless of income levels, status, religion, ethnicity and even nationality. Every citizen and anyone resident in the country, including tourists, should be able to go to the courts to seek justice. The doors of justice must open to everyone without discrimination.
Secondly, justice must not only be done but it must be seen to be done. The fashionable word today is “transparency”. This involves many things. The court proceedings should be public and the contestants in the case should be given liberty to chose the lawyers of their preference.
Reasonable time should be given to the litigants or the accused to prepare their case and mere administrative expediency should never be used to hurry cases.
At the same time, justice should not be delayed too. The judge must conduct himself in an impartial manner and should be careful that his judicial behaviour does not give a perception of prejudice. The Rules of Court 2012, the Evidence Act and the Criminal Procedure Code help to ensure that justice is seen to be done.
Thirdly, the judges must be people of high integrity, intelligent, patient and compassionate. They must have a good grasp of the law and the ability to understand facts.
They must decide in accordance with the law and should give reasons for their judgments as concisely and as clearly as possible. Grounds of judgments are important because, among other things, it will reflect upon our court’s ability to arrive at a just decision on a particular case.
Fourthly, there must be mechanisms put in place to ensure that litigants or even the prosecution do not abuse the legal process to oppress other people. In civil cases, there are various mechanisms by which a baseless suit can be struck out through Order 18 Rule 19(1), Order 14A or even the inherent powers of the courts as provided for under the Rules of Court.
In criminal cases, there is a recourse for malicious prosecution and defective criminal charges may be struck out.
Fifthly, access to justice should be made affordable to the average citizen and to those in the low incomes bracket. I believe that the duty to dispense justice is a divine duty and hence the society should ensure that justice is affordable to those who need them.
In our country, while we do have legal aid bureaus and so on, I feel that much more could be done to lower the cost that has to be incurred by the poorer sections of the community. It has always bothered me when I think of the possibility that many of those accused, who may have been innocent, plead guilty because they are unable to afford lawyers to represent them.
I also feel that magistrates and Sessions Court judges should probably be more compassionate and patient with accused persons who are not represented by lawyers. I am not saying that the current crop of judges are not compassionate but I am merely reemphasising the point.
To me, I am always mindful that we are dealing with human beings with similar fears and hopes. I am of course not talking about the hardcore criminals but people like illegal immigrants, first time youthful offenders who may have slipped their way and such.
Sixthly, in criminal cases, the principle of innocent until proven guilty should be upheld by the courts. This is one area where I feel that sufficient attention has not been given, possibly due to various practical constraints and other reasons.
I am humbly of the view that this principle of “innocent until proven guilty” is largely compromised when a bail that is excessive relative to the ability of the accused to raise is set. The primary function of bail should always be to sufficiently secure the attendance of the accused at the trial.
When a bail is set too high, and the accused is unable to raise it, he is often remanded together with other prisoners. When this happens, even before he is found guilty he has already lost his liberty, has to live under deplorable conditions in the remand cell and suffer psychological consequences. With respect, this does not augur well for the principle of “innocent until proven guilty.”
Seventhly, there should be uniformity and consistency in sentencing. Crimes under like circumstances should attract like punishments. Wide disparities in sentencing will not only upset the public but may also result in loss of confidence with the justice system.
A person stealing RM200 and a person stealing RM1 million should not receive the same punishment. In fact, a person charged for the theft of RM200, there may be valid reasons not to punish him with a custodial sentence.
While the judges ought to be firm in sentencing they should also exercise compassion based on the circumstances and facts of the case before them. Justice and revenge are two distinct things altogether and a harsh sentence need not necessarily be a good thing in certain circumstances.
Eighth, the courts should be mindful of a sociological fact, namely that social cohesion is often achieved through common values, morals and culture of the society. Courts which ignore this will inevitably invite the wrath of the people and the people themselves may lose confidence in the justice system.
Ninth but not the least, the law itself must be flexible to adapt to changing social and technological circumstances of the times. If the laws do not adapt, then it will be difficult for judges to dispense justice in accordance with the needs of the times. Judges, after all, are generally tied to the laws passed by parliament.
I would argue that our civil law courts comply largely with the features discussed above. Our country is blessed that we generally have a fair and just justice system in the civil courts and we should be able to tweak it to make it even better.
* Jahaberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
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Thursday, February 9, 2017

Why and what is opposition to Act 355?

There are many aspects of the Private Member’s Bill or Rang Undang-Undang Persendirian (RUU355/Act 355), brought by PAS president Abdul Hadi Awang in Parliament, that have interested me.
I have already written and spoken on different occasions on my views about the Act. I am now trying very hard to understand the crux of the opposition to the amendments sought. 
A few things are clear about the arguments by the proponents of the Act 355 if I understand them correctly. Firstly, they say that increasing the sentencing powers will empower the Shariah courts. Secondly, they feel that as Muslims the Shariah law must be implemented by all Muslims.
It is a must according to their understanding of being a good Muslim. Furthermore, they argue that the amendments will only affect three offences; namely that of zina, offence of falsely accusing someone of zina, and alcohol consumption, with their respective punishments of 100, 80 and 40 lashes. These are offences which are already part of the Shariah law in the country.
There is clearly support for the punishment of 100 lashes for the offence of zina in the Quran while the punishment of 80 and 40 lashes is found in other sources accepted by the majority of Muslim legalists. 
The indisputable fact is that the Act 355 itself concerns the jurisdiction of the Shariah courts and what is sought to amend is the sentencing powers of the Shariah courts. It is perfectly constitutional to seek to amend any Act. 
Then why are some Muslims opposing the amendments to increase the powers of the Shariah courts? Why are also non-Muslims opposing the amendments since Shariah laws will only affect the Muslims?
The simplistic response would be that these Muslims who are opposing are ignorant, liberalists, western influenced or agents of some anti-Islam force. I am not convinced by these simplistic responses. I believe the opposing Muslims are concerned whether or not such enhanced powers in the hands of the Shariah courts as existing today will be justly carried out. 
The other concern that I believe these opposing Muslims may have is their understanding of what is justice in Islam and priorities of the Shariah. If this is so, then they should come out more explicitly and clearly what their understanding is so that it can be the subject of useful dialogue with the view to develop Islamic understanding in the country. 
However, these opposing Muslims should not forget that much of the offences that they now appear to oppose are already part of the Shariah law in the country. Why then the opposition now? This is the part that is still unclear to many.
I doubt if these opposing Muslims oppose Shariah laws per se. I believe both sides will agree that the ultimate aim of Shariah must be justice. The proponents of Act 355 argue that justice can only be served when the Shariah as enshrined in the Quran and developed by the jurists are implemented. What is the counter argument, if any, that can be advanced by the opponents? 
I have also heard arguments that this is a backdoor to implement hudud laws in the future. It could very well be. However, what may happen in the future cannot be a valid objection to what is constitutionally permissible today. 
The other argument often heard is that this may give rise to a dual legal system. Such an argument is a separate matter altogether and cannot be a valid objection to the amendments sought.
I have often argued for a single Malaysian legal system but I do not position this argument as an objection to Act 355. What I envision is a total reform of the Shariah system in the country and a possible fusion with the civil law system. Admittedly, this will require a long-term reform of the justice system in the country.
I may have my own fundamental disagreements with the interpretation of what constitutes hudud and I have written elaborately on this on various occasions. I also disagree that merely increasing sentencing powers leads to empowering the courts. However, on the debate relating to the amendments to Act 355, I believe that constitutionally and on the basis of mainstream juristic views, the proponents of the Act have a stronger case. 
For the non-Muslims, as the law now stands, they have nothing to fear in terms of the application of Shariah laws on them. Hence, the opposition by some non-Muslims is difficult to fathom as it appears to be founded more on fear rather than facts. 
I would be surprised if the amendments sought are not passed in Parliament when they are debated.

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Sunday, October 23, 2016

Our unifying national philosophy

OCTOBER 3 — A nation without an ideology is like a teenager without a direction. A direction of some sort, even a broad and general one, for example, to appreciate life and its gifts is essential to determine the quality of life.
It also acts as a fence that reminds the teenager to be wary of influences that may make him unappreciative of life’s gifts, such as indulgence in drug abuse. 
Likewise, a nation will just float along aimlessly and in conflicting directions if the people lack a national ideal they can use as a yardstick. I have written many times before, asking what is our national dream and philosophy, keeping in mind we are a multi-ethnic, multi-religious, multi-lingual, multi-cultural and cosmopolitan nation.
We require a common national philosophy and a set of national values that can unite us as Malaysians and guide our Malaysian spirit to evolve and grow. Like nurturing a child, a nation requires constant nurturing, too.
Today, we perceive our nation to be in a state of ethnic, religious, social and economic tatters. Madness in behaviour and speeches, and mediocrity in work and productivity appear to have become a national norm.
Our leaders have to be proactive to reverse this trend and correct the perception. If the leaders are able to remove the political cataract blinding their eyes, they will see the nation is crying out for a direction and a national philosophy all Malaysians can identify with. 
As a nation that achieved independence, we were learning how to co-exist as Malaysians due to our diverse backgrounds.
We had our first racial clash, albeit politically originated, in May 1969. That was our first and I am sure our last bitter experience of a civil clash. 
As a result of this bitter experience, our past leaders were wise to recognise the need for a national philosophy which can be a guiding force to unite and provide a national direction for the people.
The National Consultative Council, headed by the late Tun Abdul Razak, had the unity and “soul” of the nation in mind when the principles of the Rukunegara were formulated.
What is so special about the Rukunegara? Firstly, everyone seems to have forgotten it was formalised as a national ideology through a declaration by none other than the Yang diPertuan Agong on  Aug 31, 1970.
I learnt the Rukunegara in school and I recall reciting it at school assemblies. It represented our national values.
It has five main principles namely, belief in God, loyalty to the King and the country, upholding the Constitution, rule of law, and good behaviour and morality.
The purpose of instilling these five principles is explained by the preamble to the Rukunegara. 
The preamble provides Malaysia aspires to achieve a greater unity for all her people by:
  • Maintaining a democratic way of life;
  • Creating a just society in which the wealth of the nation is equitably shared;
  • Ensuring a liberal approach to her rich and diverse cultural traditions, and;
  • Building a progressive society which shall be oriented to modern science and technology;
The Rukunegara contains not only universal values so relevant to a diverse society like ours, but it also sets a clear direction which we all can share to make this nation great.
We really need to be united by common values before we are pulled apart by mischief makers in our society who are bent on dividing us.
What is urgently required now is the rebirth of Razak’s political will to give life to the principles of Rukunegara. 
I support the increasing call that the Rukunegara is made as a preamble to the Constitution of Malaysia.
This will allow the courts to interpret the Federal Constitution within the context of the national philosophy particularly with regards to the protection of the fundamental liberties of the citizens as enshrined in the Constitution.
It will also enable the protection of the constitutional monarchy and the parliamentary democratic political structure of our country. 
If our current leadership has Razak’s wisdom, foresight and courage, I foresee discussions, conversations and the political will to promote the Rukunegara to the position it was meant to be.
However, as Just International president Dr Chandra Muzzafar recently pointed out, since the 1980s, the Rukunegara seemed to have been systematically put aside. Is it any surprise then there is a feeling today that our nation seems to have lost its soul while we may have generally achieved major material progress? 
I appeal to our current leadership to put back the soul in our nation. 
* Jahaberdeen is a senior lawyer and founder of Rapera, a movement which encourages thinking and compassionate citizens. He can be reached at
This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.

Sunday, October 2, 2016

Managing the judge

SEPTEMBER 26 — I often advise young litigation lawyers to know who the judges they are appearing before are and, if possible, to observe some of the trials they are presiding over. Talking to a few seniors about the conduct and behaviour of the judges in trials and hearings is equally important. Different lawyers may have different experiences with the same judge.
Being humans, no two judges are alike. Some judges make it a total pleasure to appear before them right from case management to conclusion of trial. These judges are friendly, courteous, systematic and understanding of the constraints litigation lawyers face. Some other judges may be considered as difficult for various reasons. There are also judges who are mostly silent on the bench. You will not know what they are thinking while some others, you wish they will not speak so much. All this is normal as human beings are prone to idiosyncrasies, prejudices and making mistakes.
If the lawyer has never appeared before a certain judge, I find case managements are a good time to understand the kind of judge you will be facing. I believe judges also use the same time to assess the lawyers. It is like some legal “dating” before the trial begins.
It is an accepted principle in the legal process that it is possible for a judge to make mistakes in evaluating evidence and therefore, make the wrong decision. Hence, the appeal process. This is common in litigation.
The litigation lawyer has the duty of advancing his client’s interest and legal position. Sometimes, you may be faced with a difficult judge whom you find to be interfering too much with your cross- examination, for example. Trials by nature can be quite stressful and it is possible for us to get carried away by emotions. It is always helpful to remain calm as it is when you are calm you are able to formulate the correct sentences and remain focused on your client’s interest. If you feel the interference is unwarranted, it is important you respectfully get everything on record so that on appeal, you will appear courteous, sincere and reasonable.
It is critical that litigation lawyers remain professional and courteous even when they may be annoyed as succumbing to annoyance may worsen the situation. While it is critical the trial lawyer should hold his ground on matters that concern the interest of his client, it is pointless to argue with the judge. Quarrelling with a judge in open court is completely unprofessional and embarrassing for everyone. Judges, too, generally avoid unnecessary arguments with trial lawyers as it may diminish their own reputation.
Sometimes, during trials, it is common for lawyers and judges to get into a heated argument about the law or what is permissible under the Evidence Act. Sometimes, it may concern the nature of the question the trial lawyer wants to ask or his style of asking the question which the judge may not approve. All these are common court drama. I have experienced some wise judges stand down to let matters cool down and sometimes, invite the lawyers into chambers to discuss the matter. Judges are experts at maintaining impartiality or at least the appearance of impartiality and seasoned trial lawyers are experts at managing their emotions quickly or at least the appearance thereof.
One of the important ways of managing the judge is to come for trials prepared. The easiest way to annoy a judge is to appear before the judge unprepared or shoddily prepared for your case. In this regard, extensive pretrial preparations are important such as finding out how the judge likes the bundles or exhibits to be prepared, the witness statements to be read or deemed read and so on. Knowing the legal angle of your client’s case and also being peremptorily prepared for possible questions by the other side or even the judge is useful as this may earn the judge’s respect.
I know it is instinctive for trial lawyers, who make a living by arguing, to automatically argue or rebut a position the judge takes which is contrary to his. I find this is not a useful approach. I often advise my own legal team to never behave defensively with a judge. It is important for trial lawyers to concede when they are wrong or make a concession when it is not particularly important for their client’s case. In other words, the trial lawyer should always keep his ego carefully locked up in his briefcase.
While I have experienced one or two judges who had given me a difficult time in my early years of practice, I find it distasteful when I hear some lawyers say they lost the case because the judge does not like them. Being in practice for many years, I know this is untrue and cannot be true.
Firstly, the judge has better things to do than to invest his personal feelings in a trial lawyer. Secondly, the judge is always mindful he has to legally justify his decision and hence, the judge would not jeopardise his career to spite a lawyer.
As long as trial lawyers remember judges are human beings and that they themselves have a duty to present their case professionally and as efficiently as possible, I believe it will be a reasonably pleasant day in court notwithstanding the stress of a trial.
* Jahaberdeen is a senior lawyer and founder of Rapera, a movement that encourages thinking and compassionate citizens. He can be reached at
** This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail Online.
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Saturday, September 24, 2016

What system of governance: Theocracy, democracy or secular?

SEPT 19 — To me, and I repeat, to me, it is not about being obsessed with the label of “secular” or “Islamic” country though I do not have serious problems with people using the term. I try to understand what they are actually saying as the substance is more important than the label. 
My position is clear: I do not support oppressive regimes or ideas whether they are labelled “secular” or “Islamic”. To be clear, I do not support a “secular system” that is anti religion as that is oppressive of a person’s faith. Likewise I do not support an “Islamic system” that takes away the professed Muslim’s inherent right to serve Allah as he understands it from the Quran as that is equally oppressive of faith. 
In any case, I believe the practice of one’s faith or religion should not be allowed to affect national security, general public order, peace and harmony in the country or deny the basic fundamental rights and liberties of other citizens guaranteed under our Federal Constitution. 
A theocratic state is often understood to be a political State which is founded on a particular religion. A theocracy may be defined as a form of government which defers not to civil development of law, but to an interpretation of the ‘will of a God’ as set out in religious scripture and authorities. 
In realistic terms, therefore, it will be ruled by a few men who will interpret the religious scriptures in the name of God for the rest of the populace. The clergy and religious leaders will be dominant under such a political structure. Human political history suggests the earliest forms of government are theocratic probably because a reference to a “divine” source was necessary to impose law and order then. 
Since theocrats believe they rule by divine sanction and are implementing the divine will, it is doubtful if they will brook any dissent to their views. 
Hence, any criticism of the government may be construed as criticising the religion and going against God. A study of the State-Church relationship in Christian political history will bear out this point. In other words, theocracy would naturally be anti-thesis to democracy which is a political structure that allows for consideration of diverse views and for leadership opportunities by ordinary citizens. Criticism of government policies in a democracy is considered a fundamental right and duty of a concerned citizen. Democrats welcome criticism, theocrats do not.
In modern times, the two ‘pure’ theocractic political structures are probably the Vatican and Iran though there are “quasi theocratic” states such as Saudi Arabia, Mauritania, Afghanistan, Sudan and so on. 
Secularism, as I understand it, is a political system that is neutral to organised religion and it makes a conscious separation of those mandated to run the state from religious dignitaries and religious institutions. A secular state is not anti religion as is often misunderstood in our country — probably confused with the political system known as ‘State atheism” which promotes atheism as a state policy. I do not support state atheism because of its obvious denial of the freedom of faith as theocracy is equally guilty of.
Just as there are various degrees of democracies and theocracies, there too are various degrees of secularist political systems. Unlike theocracies which are dictated by religious personalities, the degree of democratic and secularist practices are determined by the people. It may be tweaked to adapt as situations changes.  
So, if we look at the substance beyond the labels, we see these are political systems and modes of governance with their own unique features, values and consequences on the governed. The real question that citizens ought to ask is: What degree of control and in what areas do they want the government to have on them? In other words, how much freedom are they willing or should give up for the greater good of the nation?
I believe our answer lies in the Federal Constitution of Malaysia and in the interpretation of its articles. Clearly, we are not a theocratic state as the country has never been governed by clerics. We are a parliamentary democracy with many features of a secular state as is generally understood. Due to the political reality that the majority of the citizens (voters) are Muslims, there are attempts by several religious leaders and their supporters to gradually turn Malaysia into an “Islamic theocratic” state as understood by them. I hope I am wrong but I detect this trend is increasing.
Even though Article 3(1) provides that Islam is the religion of the Federation it also states that other religions may be practised in peace and harmony in any part of the Federation.  
The Federation is obviously made up of 13 states and three federal territories. How we interpret the words “Islam is the religion of the Federation” will determine to what extent religious dignitaries will influence the governance of the Federation and hence on the liberty of the people. 
I believe this point is very important to be remembered, especially by Judges when they are confronted with such an issue before them. To me, the wording of Article 3(1) is clear the constitution never intended for the country to evolve politically into an “Islamic theocratic State”. 
The Constitution also accords various fundamental liberties which I would argue generally supersedes religious positions. It is the duty of the government and the courts to uphold these fundamental rights despite any personal inclinations, if any. I admit this is a tricky and sensitive area but has to be addressed with courage, knowledge and sincerity, nevertheless. I have said many times before in certain cases where Muslim judges may find themselves in a conflict of conscience situation, then they should honourably recuse themselves from hearing the matter. 
With respect, I believe our courts have erred when they made an artificial distinction between faith and religion as if religion is completely independent of the requirement of faith. Such an artificial distinction is often made when Article 11(1) on the freedom to practise and profess a religion comes up for consideration. The other area which will determine the direction our political system of governance will be heading is on the interpretation of the word “precepts of Islam” as used in the Constitution.  I hope to touch on this area in the future, God willing. 
In the meantime I pray that our political leaders understand and are aware of these developments.
* Jahaberdeen Mohamed Yunoos is a senior lawyer and founder of Rapera, a movement that encourages thinking  and compassionate citizens. He can be reached at rapera.jay@gmail.
** This is the personal opinion of the writer or publication and does not necessarily represent the views of Malay Mail Online.
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