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 rapera.jay@gmail.com.

** 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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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 rapera.jay@gmail.com

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

- See more at: http://www.themalaymailonline.com/what-you-think/article/managing-the-judge-jahaberdeen-mohamed-yunoos#sthash.ubzjTVKA.dpuf