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1.Why do we need criminal law?

2.What is the function of the criminal justice system?

3.Draw the structure of the criminal justice system in Malaysia.

4.Identify the parties in the criminal justice system and explain the role of eachparty.

.Why must procedural laws li!e the "riminal #rocedure "ode $e complied with?

%

6.One of the basic concepts at play in the criminal justice system is the

presumption of innocence. Why do you think this is essential and what are

the implications of such a presumption?

& fundamental element of the ri'ht to a fair trial is that e(ery person should $e

presumed innocent unless and until pro(ed 'uilty followin' a fair trial. )his is why

the responsi$ility falls on the state to pro(e 'uilt and to dischar'e the presumption

of innocence.

Due to the presumption of innocence* a person cannot $e compelled to confess 'uilt

or 'i(e e(idence a'ainst him+herself. It is for the state to produce e(idence of 'uilt*

not for the defendant to pro(e innocence. In 'eneral* therefore* a suspect,s silence

should not $e used as e(idence of 'uilt.

-ecause of the serious conseuences of con(iction* the state must pro(e 'uilt to a

hi'h standard. If dou$t remains* the defendant must $e 'i(en the $ene/t of the

dou$t and cleared $ecause the state,s 0$urden of proof has not $een met.

i(en the massi(e human impact of criminal proceedin's on defendants* and the

presumption of innocence* trials should ta!e place without undue delay. It would $e

unfair to allow states numerous attempts to try to secure a con(iction. If a case

'oes to trial and 'uilt is not pro(ed* unless exceptional circumstances exist* the

person should not $e tried a'ain. )his reuires the state to do the jo$ of prosecution

properly in the /rst instance.

)he presumption of innocence is why* $efore con(iction* any restrictions on a

suspect,s $asic ri'hts* for example the ri'ht to li$erty* should only $e imposed

where a$solutely necessary. #eople awaitin' trial ha(e not $een con(icted of any

oence and many will ultimately $e cleared.

)he ri'ht to $e presumed innocent until pro(en 'uilty


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)he ri'ht to $e presumed innocent until con(icted is an esta$lished uni(ersal

concept. &rticle 11 of the ni(ersal Declaration of 5uman 6i'hts declares that*

7e(eryone char'ed with a penal oence has the ri'ht to $e presumed innocent until

pro(en 'uilty accordin' to the law in a pu$lic trial at which he has had all the

'uarantees necessary for his defence7. & similar declaration is also echoed in the

8uropean "on(ention of 5uman 6i'hts.

In the local context* &rticle 91: of the ;ederal "onstitution 'uarantees the ri'ht of

a person not to $e depri(ed of his life or li$erty sa(e in accordance with law. )he

word 7law7 in this context refers to 7a system of law which incorporates those

fundamental rules of natural justice that had formed part and parcel of the common

law of 8n'land that was in operation at the commencement of the "onstitution7.

nder the 8n'lish common law* an accused person is presumed innocent until he

has $een pro(ed 'uilty. )his presumption of innocence has always $een the $edroc!

of the 8n'lish common law and $y (irtue of our &rticle 91: of the ;ederal"onstitution $ecomes an esta$lished principle of law in our local jurisprudence.

)he presumption of innocence in the present discussion is of rele(ance in at least

two dierent contexts. ;irstly* it refers to the treatment of the suspects $efore 9i.e.

immediately after arrest: and durin' the trial* insistin' that such treatment must

correspond with their innocence e.'. the presumption in fa(our of 'rantin' $ail for

the accused person.


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defence and ali$i:* excuse or exemption* once the prosecution has pro(ed the $asic

elements of the oence. )he current le'islations which impose such $urden on the

accused person are* the Dan'erous Dru's &ct 1>2* and the &nti%"orruption &ct

1>>* to name $ut a few.

&t present* considerin' the fact that there is an inherent ineuality of powers

$etween the


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%t was held that a balance has to be struc between the right of the arrested person to consult his lawyers on the one hand and on the other

the duty of the police to protect the public fro! wrongdoers by apprehending the! and collecting whatever evidence that exists. ,ro! the

decision it is obvious that the right of an arrested person rans lower than that of the police's duty to investigate the alleged cri!e. This

decision even though it sounds reasonable practically deletes the right to counsel.

This is because the arrested person has no right to infor! anybody of his arrest. That !eans the police can arrest hi! and prevent hi! fro!

contacting anybody. They police can continue and often do continue doing this right up to when the accused is brought before the agistrate

for re!and proceedings. The provision of this 'headstart' for the police effectively eli!inates the accused person's right to counsel.

This then begs the uestion of whether such an advantage should be ualified and curtailed at all/ The answer to this uestion could be found

in the case of Ramli bin Salleh v Inspector aha!a bin "ashim where &yed Agil 0arabah 1 held inter alia-

'That in order to satisfy the constitutional reuire!ent of clause (2) of Article 5 that right should be subect to certain legiti!ate restrictions

which necessarily arise in the course of police investigation the main object being to ensure a proper and speedy trial in the court of

law;'

Therefore if one were to ustify the suspension of the right to counsel it !ust be done with the intention to ensure that the arrested person

will have a proper and speedy trial in ourt.

The proble! with the present state of law in this country is that in practice police interrogation is shrouded with !ystery and based on the

writers' interviews with clients so!eti!es involves uestionable !ethods. ore often that not interrogation taes place privately in a vacant

roo! and with no lawyer or friend of the accused present there is nothing to prevent the recording officer fro! saying untruthfully that he

did not offer any induce!ent of threat; or that he did ad!inister the prescribed caution when in fact he !ay have done nothing of that ind.

Again the issue if it rises in court either during the re!and proceedings or in trial proper will only give rise to a contest of the word of the

accused person alone and the word of the one or !ore police officers.

Another argu!ent that is often put forward by sceptics to ustify the suspension of the exercise of the right to counsel is that to allow the

presence of lawyers during interrogation will i!pede police investigation. 4ith due respect such argu!ent is too si!plistic shallow and lacs

of !erit. To date no concrete proof has been forwarded to support this contention. &uch contention if at all only serves to prove that the

police is inco!petent and too dependent on the result of an interrogation in order to conduct an investigation. %t !ust be borne in !ind that

interrogation is only one of the !any aspects of police investigation.

%n the nited &tates the position is different. An arrested person has an i!!ediate right to a legal representation and he !ust first be

infor!ed of his rights. 6nce the arrested person insists or reuests for a counsel then all police investigation !ust stop until legal

representation is !ade available. %n the case of iranda v Ari7ona it was held that-


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# $$$the prosecution ma! not use statements, %hether e&culpator! or inculpator!, stemming from custodial interrogation of the defendant

unless it demonstrates the use of procedural safeguards effective to secure the privilege against self-incrimination$ '! custodial interrogation,

%e mean (uestioning initiated b! la% enforcement officers after a person has been ta)en into custod! or other%ise deprived of his freedom of

action in an! significant %a!$ As for the procedural safeguards to be emplo!ed, unless other full! effective means are devised to inform

accused persons of their right of silence and to assure a continuous opportunit! to e&ercise it, the follo%ing measures are re(uired$ Prior to

any questioning, the person must be %arned that he has a right to remain silent, that an! statement he does ma)e ma! be used as

evidence against him, and that he has a right to the presence of an attorney, either retained or appointed$ *he defendant ma! %aive

effectuation of these rights I provided the %aiver is made voluntaril!, )no%ingl! and intelligentl!$If, however, he indicates in any

manner and at any stage of the process that he wishes to consult with an attorney before speaking, there can be no

questioning.+i)e%ise, if the individual is alone and indicates in an! manner that he does not %ish to be interrogated, the police ma! not

(uestion him$ *he mere fact that he ma! have ans%ered some (uestions or volunteered some statements on his o%n does not deprive him of

the right to refrain from ans%ering an! further in(uiries until he has consulted %ith an attorne! and thereafter consents to be (uestioned$#

8e!phasis added9

%t is sub!itted that perhaps it is appropriate that a!end!ents be !ade to the existing laws in order to incorporate the principles as laid down

in iranda v Ariona. &uch a!end!ents will not only strive to i!prove the already eroded and illusory right to counsel but will afford so!e

ind of chec and balance accountability and transparency during police investigation and interrogation.

Another i!portant aspect under this right which reuires close scrutiny is the fact the arrested person has the right to consult his lawyer in

private and in full confidentiality. According to "rinciple 2: in the 0ody of "rinciples ,or the "rotection of All "ersons nder Any ,or! of

etention or %!prison!ent a docu!ent adopted by the nited


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The above principle to a certain extent has been adopted and enacted under #ule 2>2 (?) of the "risons #egulations ?>>> which provides

that-

#Reasonable facilities shall be accorded to the legal adviser of a prisoner %ho is conducting an! legal proceedings, civil or criminal, in %hich

the prisoner is a part!, to see the prisoner %ith reference to suchproceedings in the sight, but not in the hearing, of a prison officer.#

8e!phasis added9

Therefore in cases where a person has been arrested under the provision of the ri!inal "rocedure ode the arrested person will be allowed

to consult his lawyer in private. The position however is different in cases where one is arrested and detained under the %nternal &ecurity Act

whereby the consultation with lawyers is !ade within sight and hearing of the detaining authority. To relate the writer's own experience

during a consultation session with an %&A detainee at Te!pat Tahanan "erlindungan Taiping ('@e!ta') the detaining officer was sitting within

an ar!'s length fro! where the discussion was being held. This is a clear infringe!ent and a !ocery of the right to counsel.

The case of ohamad 4am ohd 5or 6 Ors v enteri 7alam 5egeri 6 Orsis an illustration of the above point. %n this case the applicants had

been arrested and charged in the @uala +u!pur agistrate's ourt for an offence under the "olice Act 2BC and had subseuently been

detained at the @e!ta under s : %nternal &ecurity Act 2B> ('the Act') pursuant to orders !ade thereof by the inister of Do!e Affairs. 4hile

under the said detention the applicants were accorded right of access to counsel and all of the! have had numerous consultations with

their respective counsels, albeit that the same were only allowed to be convened within the sight and hearing of the officers of

the centre,and not otherwise. The applicants averred that the procedure as adopted by the centre hereof a!ounted to an illegiti!ate

restraint to their right to consult their counsel in confidence and was in breach of their funda!ental rights as enshrined in Article 5(3) of the

,ederal onstitution and in the circu!stances applied for declarations to the effect. The said application however was dis!issed.

orollary to the right of an arrested person to consult a lawyer should be the right to a phone call i!!ediately after arrest. ,or the arrested

person to reali7e his right to consult a lawyer of his choice he should be entitled to the use of the telephone to contact his lawyers or relatives

or friends who could engage counsel to represent hi!. #efusal or denial of such right would clearly render the right to counsel ineffective and

illusory.

The following statistics show the nu!ber of accused persons who have been interviewed by the 0ar ouncil +egal Aid entre (@uala +u!pur)

at the &ungai 0uloh prison and who were either denied or ignorant of their right to counsel. &ince the right to !ae a phone call is non*

existent !ost of the! ended up in the re!and centre without being able to notify their fa!ilies relatives or friends.

Right to be release pending trial i.e. right to bail

&ince a person is presu!ed to be innocent until proven otherwise once a person has been charged and brought before a court he should be

released pending trial on bail. The grant or refusal of bail is a !atter of fore!ost i!portance to the accused person because the refusal or

denial of bail is clearly a disadvantage to his preparation of his defence or in his atte!pts to raise funds to engage counsel of his choice. 6n


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the other hand the prosecution will argue that to allow an accused person to be out on bail is not in the interest of the public as there could

be the possibility of ta!pering with witnesses.

%n alaysia offences are either bailable or non*bailable but even in cases of non*bailable offences the court and the police officer of the

police district concerned have discretion to grant bail.

The !ain concern under this discussion is not so !uch whether an accused person !ust be given bail in all circu!stances but rather whether

the existing bail syste! which stresses !ore on !oney bail or case bail is appropriate. The !oney bail or cash bail syste! tends to

discri!inate the poor and the unfortunate and give preferences to the affluent.

"erhaps it is ti!e for the ourts to consider 'personal recogni7ance' bond without sureties before considering other for!s of bail. %t is

essentially a release on personal undertaing given by an accused person to the satisfaction of the ourt and it does not i!pose any

pecuniary condition. %n "ussainara Khatoon 6 Anor v "ome Secretar!, State of 'ihar, Patna the %ndian ourt recogni7ed that ordering bail

with sureties is an outdated concept and that the ris of !onetary loss is not the only deterrent against fleeing fro! being tried by the ourts.

,actors which should be taen into consideration to release an accused person on his personal bond are inter alia; the length of the accused

person's residence and roots in the co!!unity; his e!ploy!ent status and history; his reputation character and social standing; whether

there is any responsible !e!ber of the co!!unity who would vouch for his reliability; prior cri!inal record; and the nature of the offence he

is charged with.

%f the present practice of i!posing !oney bail or cash bail is continued then the right to be release pending trial will then only be available to

only the affluent whereas the i!pecunious will be left to languish in a prison cell even though he has yet to be proved guilty.

Right to a speedy trial in Malaysia

Article 5(2) of the onstitution provides-

#5o person shall be deprived of his l ife or personal libert! save in accordance %ith la%$#

$ven though the plain reading of the onstitution does not expressly provide for the right to a speedy trial or a trial within a reasonable ti!e

it does however confer upon a person charged with a cri!inal offence the right to a fair trial. This right to a fair trial in the writer's view

includes the right to a speedy trial.

The right to be tried expeditiously and without delay is an i!portant facet to a fair trial. This is because delay is a !aor contributing factor for

the denial of hu!an rights. r # @arthieyan irector =eneral of the %ndian


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#*he biggest contributing factor for the denial of human rights to a ma1orit! of people is #dela!# -dela! in ta)ing decisions, dela! in

communicating decision, dela! b! those holding an! authorit! at various levels in government$ ost public servants are insensitive to their

fello%s citiens $$$8nless %e devise a s!stem %here dela! in the decision ma)ing process is avoided, millions of people %ill remain victims of

human rights violations $$$9e can ensure better observation and protection of human rights onl! b! increasing people#s a%areness about their

rights, and sensitiing securit! forces and public servants of their duties$#

%n the local context the right to a speedy trial was expressly dealt with in the case of Public Prosecutor v Choo Chuan 9ang. $dgar 1oseph 1r

1 (as he then was) uoted several %ndian &upre!e ourt decisions and held that Article 5(2) of the ,ederal onstitution does i!ply in favour

of an accused person the right to a fair hearing within a reasonable ti!e by an i!partial ourt established by law. De then uoted fro! the

%ndian &upre!e ourt decision ofadhesh%ardhari Singh 6 Anor v State of 'iharwhich held as follows-

#That, now by precedential mandate the basic human right to a speedy public trial in all criminal prosecutions has been

expressly written as if with pen and ink in the constitutional right relating to life and liberty guaranteed under Article ! of our

"onstitution$ :urther, that this right is identical in content %ith the e&press constitutional guarantee inserted b! the Si&th Amendment in the

American Constitution$

*hat the American precedents on the Si&th Amendment of that Constitution %ould be e(uall! attracted and applicable as persuasive on this

facet of Article . of our Constitution as %ell$

*hat once the constitutional guarantee on a speed! trial and the right to a fair, 1ust and reasonable procedure under Article . has been

violated, then the accused is entitled to an unconditional release and the charges levelled against him %ould fall to the ground$

*hat a callous and inordinate prolonged dela! of ten !ears or more, %hich, in no %a! arises from the accused#s default ;or is other%ise not

occasioned due to an! e&tra-ordinar! and e&ceptional reasons

The learned 1udge also noted that in order to show that there has been a breach of his funda!ental right the accused !ust allege so!e ind

of preudice such as witnesses who! he had intended to call being untraceable or being incapable of giving evidence or the destruction or

loss of other evidence or indeed any other preudice occasioned by reason of the delay.

Another factor which greatly contributes to the delay of the disposal of cri!inal proceedings is the delay on the part of the police to co!plete

their investigations before the date of hearing. Der +adyship &iti pointed out that in cri!inal proceedings !ore often than not on the day fixed for hearing the police have still

not co!pleted their investigations in which case the prosecuting officer is forced to see an adourn!ent and the reason for such reuest will

always be that he has not received the investigation papers as the investigating officer concerned was still investigating into the case. To


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relate a typical incident the writer once represented a person charged of sodo!y before the A!pang &essions ourt. 6n nu!erous occasions

the prosecution had sought for adourn!ents on the basis that the !edical report of the victi! is not ready. ,inally after several

adourn!ents the writer raised a preli!inary obection on the ground that the accused person's right to a speedy trial as enunciated in Choo

Chuan 9anghad been infringed as the trial has been delayed for al!ost two years. The preli!inary obection however was dis!issed not to

the surprise of the writer. The trial finally started several !onths later and at the end of the prosecution case the accused person was

acuitted. Dad the trial co!!enced earlier the accused would have been spared the long ordeal of being in re!and. That in a nutshell is the

present state in this country.

=iven the advance!ent of !odern day technologies and nowledge such as forensic scienceFinvestigation any cri!inal investigations should

be able to be conducted and co!pleted with reasonable speed. Therefore excuses given by the prosecutionFpolice that the post !orte!

report or the !edical report or the che!ist report are not ready should no longer be accepted and !ust be looed upon with great suspicion

by the udiciary.

&uch !alpractice as pointed out above in the writer's view is a blatant violation of the funda!ental right to a speedy trial which is not

unco!!on and in fact is prevalent.


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The rationale for this right is that it see!s to be hypocritical and contradictory for one organ of the &tate na!ely the ourts to tae

advantage of a breach of the law by another organ of the &tate na!ely the police (which is the enforce!ent ar! of the $xecutive). &o far as

police conduct is concerned those who enforce the law should and !ust obey the law. To allow this double standard is not only unust but

could tanta!ount to an infringe!ent of Article : of the onstitution. To allow such practice is ain to giving the police carte blanche to do

whatever they dee! necessary in order to get a conviction. %n respect of the ourts it would be an affront to basic rule of law values if they

were to act on evidence obtained by breach of law and breach of funda!ental rights.

0e that as it !ay in the local urisprudence the ourts have adopted a different view to the above. %n the case of Sa% Kim "ai 6 Anor v

Regina and Public Prosecutor v Seridaran the ourt has adopted the decision of the "rivy ouncil in Kuruma v *he ?ueenwith approval of the

proposition that the fact that evidence has been illegally obtained does not affect the uestion of its ad!issibility.

%n the case of Kurumathe uestion that was posed to the "rivy ouncil was whether the evidence proving that the appellant was in

possession of the a!!unition had been illegally obtained and should not have been ad!itted. +ord =oddard 1 said that the test to be applied

in considering whether evidence is ad!issible is whether it is relevant to the !atters in issue. %f it is it is ad!issible and the court is not

concerned with how the evidence was obtained.

Conclusion !rosion of the rights"

%t is clear then fro! this discussion that even though so!e of the !ore funda!ental rights are accorded to an accused person (for exa!ple

the presu!ption of innocence) !ost if not all of the! have suffered erosion due to firstly legislation by the +egislature in passing acts of

"arlia!ent that slowly chip away at those rights; secondly udicially by the 1udiciary in narrowly interpreting the funda!ental rights accorded

under the ,ederal onstitution and even effectively denying these rights to an accused person (see Ooi Ah Phua v Public Prosecutor); and

lastly enforce!ent of the law by the $xecutive that pays scant heed to any of the laws. The 1udiciary which is supposed to be the only organ

of &tate capable of !itigating or even eradicating the abuse of power by the $xecutive and +egislature is not only uninterested in doing so but

aids and abets the! in their atte!pt to erode the rights of an accused person.

This oppression of an accused person by all three organs of &tate has reali7ed the 1udiciary's own fears i.e. that the onstitution has beco!e

a !ere collection of pious platitudes. 4hat is in store for an accused person in the future/ Are there any positive develop!ents to loo

forward to/

%t was the fervent hope of the writer to end on a positive note. nfortunately recent develop!ents in the law see! to indicate that there will

be further erosion of not only the rights of an accused person but also of a !ere suspect. #ecent legislation to enact laws for the suppression

and persecution of terrorists has !erely resulted in a!ple possibilities for infringe!ents of other funda!ental liberties. To na!e but a few of

the exa!ples are the wide and arbitrary powers given to the Attorney =eneral under the proposed a!end!ent to the ri!inal "rocedure

ode which !ay have the profound effect of obliterating the already illusory and ineffective rights of accused persons. Although public

interest and safety is an i!portant factor such laws cannot be !ade at the expense of funda!ental liberties. The existing laws are !ore than


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sufficient to handle any possible threats or dangers to the public. $!phasis should be !ade on how to effectively utili7e and enforce the

already existing provisions.

nhappily there is also no uic solution to this syste!atic and consistent erosion of rights accorded to an accused person. ,urther any

!eaningful and effective solution !ust co!e fro! all three organs of &tate and this !eans that a large portion of the solution lies in policy.

The writer strongly believes that the first step to a solution would be for all the organs of &tate to undergo a paradig! shift and recogni7e the

pri!acy of the individual over the o!!unity. This is si!ply because the !ost basic unit of a o!!unity is the individual. The protection of a

co!!unity can no longer be used as an excuse to curtail the funda!ental liberties and protection that an individual is entitled to. %t is

therefore fallacious to argue that the oppression of an individual would result in a healthier and safer o!!unity.

%f all organs of &tate were able to !anage and establish this paradig! shift then the erosion of the rights of an accused would be halted and

there is every possibility of such rights being strengthened. 0ut until that day co!es one can only expect a greater and !ore freuent

erosion of safeguards in favour of an accused person.

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