PETALING JAYA: Chief Justice Tan Sri Ahmad Fairuz Sheikh Abdul Halim has come out in defence of the courts against criticisms by some Cabinet ministers that they were too lenient or slow in handling cases involving employers who hired illegal immigrants.
The top judge, in a three-page statement released yesterday, listed down three reasons why 112 out of a total of 1,162 such cases were still pending in the magistrates courts.
Putting the blame squarely on the shoulders of the prosecuting officers, Ahmad Fairuz said the three reasons were their failure to:
·OBJECT to applications for adjournment;
·INFORM the courts of the urgency to dispose of the cases; and
·NOTIFY the court, in a single case, that the influx of illegal workers into the country was due to the failure to punish employers.
The reasons advanced when applying for adjournment are myriad illness, absence of witnesses, prosecution not ready, investigation papers with the deputy public prosecutor, failure to serve notice of hearing on accused, and magistrates were sick, on leave or attending courses.
It is the right of prosecuting officers to object to any application for adjournment by an accused or his counsel. In these pending cases, the records show that none of the prosecuting officers had objected, he said.
The Chief Justice was responding to comments by Home Minister Datuk Azmi Khalid last week that efforts by enforcement officers to nab illegal immigrants and their employers had been futile as the courts were slow in convicting them.
He had also reportedly said that the courts had been lenient in allowing lawyers to ask for postponements and that he wanted to see one or two employers, should they be found guilty, be caned in public to deter others.
Azmi said that between August 2002 and July this year, a total of 16,413 illegal foreign workers had been found guilty and 112 employers prosecuted.
He cited the case of an employer in Perak which was postponed 11 times because his lawyer could not turn up in court or the magistrate was on duty elsewhere.
Deputy Prime Minister Datuk Seri Najib Tun Razak, when chairing the Cabinet Committee on Foreign Workers meeting last month, had asked the judiciary to mete out harsher penalties to illegal immigrants and their employers and noted that not a single employer who had been prosecuted was punished.
Yesterday, Ahmad Fairuz also cleared the air on the disposal rate of cases.
For the record, from 1995 to date there were 1,162 such cases registered with the courts. A total of 916 had been disposed of.
The longest pending case against employers in court is two years, he said.
He added that of the 112 cases which were mentioned in the press reports, two had been settled recently.
The court ordered the accused in the two cases to be given a discharge not amounting to acquittal because in one case the prosecuting officer withdrew the charge while in the other case the accused was absent from trial.
Trial dates have been given by the respective courts for the remaining cases, he said.
At the very outset of his press statement, Ahmad Fairuz also stressed that he did not want to specifically discuss reasons for adjournment as that might tantamount to reviewing such reasons, which should be the function of an appellate court.
I do not intend to go into the merits of those cases since they are pending in court. To do so would be subjudice, hence a probable case of contempt.
The accused might also take it as a point to say that they would no longer get fair trials since any remark on the cases might be interpreted as a directive from me to those magistrates and that the results of the cases are foregone conclusions, he said.
He said that the effect would be worse if the remark were to be that the accused must be convicted and given severe punishment.
If such a remark were to come from me, it would definitely be perceived as a challenge to the independence of the judiciary.
As our system of justice is adversarial, the appropriate person, venue and time to make such remarks is in court by prosecuting officers when presenting their submissions, he said.
He said a magistrate should decide entirely at his own discretion without the influence of any outside authority.
Unless the matter came up in revision or appeal, even an appellate court would be acting in excess of its jurisdiction if it told the trial magistrate to postpone or not to postpone a particular case.
We have to remember as well that it is our law and in fact most basic rules of justice that however heinous a crime a person is accused of, whatever the rank of the person who testifies against him, he can only be convicted on evidence produced according to the stringent requirements of the law,'' Ahmad Fairuz said.
An aggrieved party can take it up on appeal or seek revision by a high court.
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