Mourn the tragic deaths, but observe due process


  • A Humble Submission
  • Thursday, 29 Jun 2017

We should not prejudge, and the accused have the right to defend themselves against the charges.

THE tragic deaths of Zulfarhan Osman Zulkarnain and T. Nhaveen shocked the nation. Two young Malaysians died, reportedly at the hands of their peers.

Their deaths sent shockwaves throughout the country and caused us to question how our society has gone so wrong that such incidents could occur right under our collective noses.

Those alleged to have caused their deaths have been charged.

In Zulfarhan’s case, six university students have been charged (five with murder and one with abetting), while four teenagers were charged in Nhaveen’s case. They are all aged between 16 and 21.

The initial shock eventually gave way to anger. On social media, many expressed anger at the accused. They have been judged as murderers, and what made matters worse was that some family members have also suffered abuse from the public.

It was even reported that some of the accused persons could not secure legal repre­sentation, as lawyers declined to take up their case.

Our anger is understandable. As a society, it is difficult to comprehend how two young, bright Malaysians could have died so senselessly.

Media reports of the abuse suffered by Zulfarhan and Nhaveen at the hands of their assailants only made us angrier.

But due process must be observed. Those accused have the right to defend themselves in a court of law. This must never be taken away from them, despite what we may think about their guilt or innocence.

Remember the sacrosanct principle of the criminal justice system; a person is innocent until he or she is proven guilty.

There is a presumption of innocence for all persons charged. A person should not be incarcerated until the charge is proven against him or her. The accused must also be allowed to defend himself or herself against the charge.

The burden of proof is on the prosecution, to collect and present enough compelling evidence to convince the court that the accused is guilty.

The prosecution must do so by showing that there is no reasonable doubt that he or she did it. If even one reasonable doubt is raised, then the accused must be acquitted.

Thus, it is not easy to prove a criminal charge against a person. This is how it should be. If a person is convicted, his or her liberties will be taken away. Sometimes, a guilty verdict will result in death.

In order to justify these State-sanctioned violations of liberties, it must be established that the person is guilty of the offence in question.

The prosecution would have the entire machinery of the State at their disposal to investigate and prepare the case against the accused.

The accused would not have such tools at his or her disposal. That is why the burden is on the prosecution to prove, not on the accused person to defend himself or herself.

English jurist William Blackstone expressed what is now known as the “Blackstone formulation” for criminal law.

According to the formulation, the criminal justice system must always err on the side of innocence, even if it means that with this current system guilty men would also escape punishment.

We mourn the deaths of Zulfarhan and Nhaveen. We feel for the family, whose loved ones have been taken away from them in such a cruel manner. Hard questions must be asked of us collectively as a society, if our young ones are not adequately protected.

Yet at the same time, the law must be allowed to take its course.

A trial by the media, or through mob justice, would result in injustice. In our pursuit of justice, we must never allow injustice to be perpetrated.

Syahredzan Johan is a partner of a legal firm in Kuala Lumpur with an interest in the laws that shape our country. He can be reached at syahredzan.johan@gmail.com. The views expressed here are entirely the writer’s own.

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Opinion , Syahredzan Johan , columnist

   

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