Sunday, April 25, 2010

THE LAW AND THE COURTS


As posted by Dr. Mahathir Mohamad at Che Det on April 10, 2010 10:18 AM

1. I think it was the President of the Bar Council who pointed out that the law provides for a judge to accuse a person with contempt of his court and to punish him.

2. I am not disputing this legal provision. But we know of the cynical reference to some laws being an ass. In fact many lawyers would claim that the ISA which provides for detention without trial as bad law, and many have urged that the law be removed from the statute books. The reason cited is that without a hearing in a court of law, the executive has assumed the role of prosecutor, judge and executioner. In todays society this is a denial of justice.

3. But the same people, who strongly object to the Internal Security Act, support the law providing for contempt of court in which the aggrieved judge becomes the prosecutor, the judge and the executioner.

4. Clearly we are seeing double standards in the implementation of justice.

5. To say that the judge knows best as to the culpability of the accused person is to once again breach the principles of justice. A judge should not know and prejudge a case. He should be quite ignorant of the case coming before him and he should allow himself to decide simply based on the evidence put before him, the words of the witnesses and the pleadings of the prosecutor and the counsel for the accused person. If a judge is also a witness to the case then he would be bias and cannot possibly do justice to the case.

6. There is certainly a need for a law against contempt of the court but it should follow the same procedures as applicable to all other cases including being heard by other than the aggrieved judge. The charge should be made properly. There should be no arbitrary arrest before a charge is made. The accused person should be given his right to hear the charge and to state his defences before a judge who is not personally involved.

7. Court procedures would take time but in the case of Matthias Chang, there was really no hurry as he was in fact given one week to pay the fine or be jailed. In fact when he turned up on the stipulated day the judge was not available and he was told to come back the next day.

8. Yet when he willingly went back the next day to surrender, he was told that his arrest would be made in the car park. I suppose this is again standard procedure but it would amount to additional punishment because it would humiliate him.

9. At the time of writing this in Sarajevo, Bosnia and Herzegovina, I am told he is unconscious because he had chosen to protest by fasting against the injustice of the way the law was used by the judge. The Government may not be moved by his act but if it does not than it would compare very badly indeed against the British Raj which responded humanely to the fast by Ghandi.