The judiciary and the people

WHEN we say the judiciary, we broadly refer to the courts, the magistrates, the sessions court judges, the high court, the court of appeal, the federal court judges and other adjudicators within the system.

Essentially, people go to the courts to settle their disputes and to seek “justice and redress” for the perceived injustices or damages that they may have suffered.

They may, for example, be trying to get back a payment that is due to them or they may be suing for being “wronged” by someone and so on. It could be that they suffered medical negligence. These are civil claims between citizens.

Ordinary citizens may experience frustrations and helplessness when facing the “might of the State”.

There may be occasions where citizens may feel oppressed or unfairly treated by some government agencies. This may happen, for instance, when a government officer follows his own whims and fancies instead of the due process of the law.

There are laws and regulations that the various government bodies and agencies must abide with in administrating the country. Hence, the judiciary bears the responsibility of protecting the citizens from the oppression or abuse of power by little Napoleons.

For example, unlawful exercise of power, arbitrary and baseless decisions made by government officers that cause losses to the citizens or infringe on legitimate rights. In such cases, the judiciary may decide against the executive government. Hence, it is critical that judges enjoy true independence to dispense justice without fear or favour.

The enforcement agencies and the Attorney General’s office play important roles in the maintenance of security, law and order. The various enforcement agencies enforce the law, which includes issuing summonses or even recommending certain citizens be charged in court for breaking the law.

The Attorney General’s chambers may prosecute these alleged offenders in the courts. When these cases appear in the courts, the judiciary plays the role of an independent arbiter of both facts and law to ensure that the process takes place in accordance with the law. This is to ensure that there is no abuse of power by the authorities or victimisation of anyone through the “might of the law”.

The judiciary also ensures that the criminal process adheres to the rule of law.

Enforcement authorities have tremendous powers that could impinge on the fundamental liberties of a citizen.

The law, for example, allows the police to detain a citizen as a suspect in a crime up to 24 hours, beyond which an order by the magistrate’s court is required for further detention.

This further detention is called remand. Remand proceedings are held before magistrates where the police request further detention of the suspect allegedly for investi-gation.

If the magistrates do not apply their mind judiciously and responsibly when the police requests remand, then it could become oppressive of citizens.

An irresponsible or corrupt police officer may abuse the remand proceedings, which in turn would deny the Constitutional right of movement to citizens. There have been instances when citizens have been remanded longer than necessary.

Therefore, it is laudable that the Chief Justice has recently taken the initiative to provide extensive guidelines to judicial officers presiding over remand hearings.

Every lawyer, prosecuting or enforcement officer and every magistrate involved in remand proceedings ought to read these comprehensive guidelines. The fact that the chief of the judiciary has taken steps to ensure that the Constitu-tional guarantees of the citizens are safeguarded is significant.

Such initiatives increase the public’s confidence in the judiciary with the reminder that the courts are indeed the last bastion of justice for the ordinary citizen. In ways like these, among others, the judiciary helps to develop the law and protect Constitutional guarantees.

A true democracy allows for effective participation of the ordinary citizen in the running of the country.

Democracy doesn’t merely mean casting your vote every five years at the general elections and giving a blank cheque to the elected representatives to do as they wish.

It is not a mandate to be arbitrary with the powers given. It is for this reason that the Constitution, for example, provides for various democratic rights such as freedom of speech, assembly and association.

The citizens can use these rights to hold the executive accountable and transparent by actively being critical of government policies and actions or omissions.

A muted citizenry will only give rise to an authoritarian and corrupt regime that will do the minimal for the country and maximise the nations’ resources to benefit themselves and their cronies.

A vibrant democracy requires informed, critical and outspoken citizens. Political leaders generally do not like to be questioned or criticised and may try to silence the critical citizens through various means.

They may either try to pass draconian laws through Parliament or use enforcement agencies to arrest or intimidate the critics.

This is where the role of the courts as guardians of democracy comes into play, when the aggrieved citizen appears before the court, either through civil claims or as a result of frivolous or malicious prosecutions.

The truth is, when the ordinary citizen suffers injustice or is helpless in the face of the “mighty State”, the courts are their only and last resort. In this sense, therefore, it is also the judiciary that helps to maintain the dignity of the ordinary citizen when he or she is oppressed or wronged.

Senior lawyer Datuk Seri Dr Jahaberdeen Mohamed Yunoos is the founder and chairman of Yayasan Rapera, an NGO that promotes community-based learning activities and compassionate thinking among Malaysians. The views expressed here are entirely his own.

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