A not-so-simple decision


ALL right, this is going to be a short one. It is my Christmas gift to my editors who are all champing at the bit to begin their Christmas celebrations, so much so that the last thing they want right now is to be bogged down by a lengthy piece by me, riddled with grammatical mistakes and conniption-inducing passages for the in-house lawyers.

The Federal Court recently declared that Section 62 of the Malaysian Anti-Corruption Commis-sion Act is constitutional.

Basically, Section 62 requires that a person accused of corruption must put in their defence before trial starts. This is against the usual practice in criminal-type cases where a defendant puts in his defence once trial begins.

The Court of Appeal recognised this and stated that Section 62 was in contradiction with Article 5 of the Federal Constitution, which is about fair trial, and Article 8, which is about equality.

The Federal Court disagreed with the Court of Appeal and it held that if the defendant wanted to add more points to his defence, the Evidence Act allows this to happen after the trial has started. So, where is the unfairness?

Reading the judgment of the Federal Court, all I can say is “Aiyaa, is it time for yet another lesson on basic legal principles?”

I suppose it is.

Our system of law, indeed any system of law in a civilised nation, works on the premise that a person is innocent until proven guilty. This being the case, when a state is accusing you of a wrong, it is up to the state to establish that you have committed the said act. It is not up to the accused to prove that he did not commit the act.

This is why in criminal trials, the prosecution has to first establish that a wrong had been done. Only when a judge is satisfied that this may be the case does a defendant put in his defence.

Asking a defendant to put in his defence at the very beginning of the proceedings implies that he is already presumed to be in the wrong. This goes against the principle of innocent until proven guilty.

It’s simple, right? Well, perhaps not simple enough.

Oh well, whatever. Merry Christmas, everybody!

Azmi Sharom (azmi.sharom@gmail.com) is a law teacher. The views expressed here are entirely the writer’s own.

Azmi Sharom , Brave New World