Monday, January 09, 2012

Anwar not guilty - what about compensation for innocent persons dragged through the criminal justice system?

Anwar Ibrahim has been acquitted - he is not guilty. Remember that all persons are innocent until proven is sad that there are some reports (or news titles) that seem to imply that it is not that he is innocent but that there was insufficient evidence to convict and, this, I believe, is very wrong.

Looking at the evidence adduced in court by the prosecution in this case, one wonders whether he should have been charged at all in the first place -- remember, the prosecution has a duty to thoroughly investigate and evaluate the evidence that they have, and only if there is sufficient evidence for a conviction (according to the prosecution) should they charge any person in court. The court process should not be used as a tool of 'punishment' when they themselves know that there is insufficient evidence to satisfy the 'beyond reasonable doubt' test. 

Now, let us talk about compensation for victims of the criminal justice system. Should they not be compensated? I believe that they should be compensated for their losses - not just for their legal expenses but also for the sufferings they had to endure. More so, when they have been incarcerated (in detention), resulting in loss of liberty. We still do not have this in Malaysia - but it is time that we do have some form of criminal compensation, which may be nominal fair sum not excessive, which will compensate victims of the criminal justice system.

Is the acquittal  evidence that the Malaysian judiciary is independent? No, we cannot say so just based on one case - maybe it was just the judge who acted justly. There is more that is needed before the Malaysian judiciary will be perceived as just and independent by many....

There is still much to be done to ensure strengthen the independence of the Malaysian judiciary...(1) the selection process; (2) increment of judges salary and pensions; (3) restraining the use of transfer and elevation as tools of 'controlling' judges; (4) removal of this 'probation judge' system - i.e. now persons are appointed first as Judicial Commissioners for a short term before they may or may not be elevated as judges - they should be directly appointed as judges (remember security of tenure is one of the tools to ensure independence); (5) the 'cooling off period' & higher retirement benefits to judges so that they would not have to worry about money - or getting appointed as some other Commissioners or Directors...

Anwar is acquitted - but should we now go after the alleged victim? The answer is 'No' - for we do not want victims to be scared to lodge police reports and other complaints against persons...That is their right. We all know when it comes to cases of rape and other sexual offences, many a time the victims are just to afraid to come forward to lodge complaints and this is not what we want. 

It is done - Anwar has been acquitted, and as such he is innocent, and that is that - it is how the law works and no one will be convicted unless the prosecution is able to proof the allegation 'beyond reasonable doubt'. In this case, I wonder why the Judge was reported as saying:-

Justice Mohamad Zabidin Mohd Diah said that after going through the evidence, the court could not be 100% certain the integrity of the DNA samples was not compromised....- Star, 9/1/2012, Sodomy II: Anwar acquitted
I wonder why he said this, i.e. could not be '100% certain..' when requirement clearly was less that 100% certainty but just 'beyond reasonable doubt'. Was this statement made to provide the prosecution with a reason to appeal? This is my opinion. But note, we have to look at the final grounds of judgment to really know what the judge said...This we have to wait. Maybe, what he said was mis-reported - this could also be the case.

Let us start lobbying for compensation for accused persons who at the end of the day is found not guilty. This would certainly improve the criminal justice system and stop the police/prosecutors from simply charging people without first doing a thorough investigation and ensuring that there is sufficient credible evidence before they do charge and drag innocent persons through the criminal justice system.

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