Looking at some Court decisions it is manifestly clear that there is a
great shortcoming in the legal system of the British that has been
adopted and is being practiced in Malaysia. It does not have an internal
mechanism to tackle illogical judgements by the bench. As a result the
justice system sometimes ends up being most unjust.
The most recent case of the Court of Appeal reversing the decision of
the High Court which imposed a custodial sentence in the case of the
child rapist is one such example. The Court of Appeal set the rapist
free (that is what a suspended sentence means, does it not?) in total
disregard of the provision of the law on statutory rape.
There is a rule in the legal system that decisions of appellate
courts (i.e. the Court of Appeal and the Federal Court), must be
followed by the lower courts when deciding on similar cases. The
appellate court decisions are known as precedents. Thus, the Penang
Sessions Court had no choice but to follow the master, so to say,
immaterial whether the master was right or wrong.
This precedent could only be overturned by the Federal Court.
However, the Federal Court does not take it upon itself to review the
case. Even if the prosecution wanted a further review of the case, the
door is closed as only two appeals are allowed in a case. This case was
originally heard in the sessions court. It was first appealed to the
High Court and then to the Court of Appeal.
In reality, the Court of Appeal decision means that the judge had
taken it upon himself to change the law on statutory rape. Did he have
the authority to do so? Obviously, his personal feelings or views had to
do with his judgment which he justified by giving three ‘reasons’, i.e.
the immature child had given “consent”; the young adult sportsman
perpetrator had a bright future ahead and thirdly it would not serve the
national purpose by sending him to prison.
Not only is the public outraged, but also a former member of the
bench (Shaik Daud Ismail) has expressed outrage. The Minister of law
said he will look into changing the law. In the first place, is it the
law that is not adequate, or is it the judgment that is manifestly
wrong?
Perhaps this is his solution because judges cannot be pulled up for
their interpretation of the law. So he feels the way to stop this
judgment continuing as a precedent is to change the law on which it was
based.
Another manifestly wrong judgment in 2000 was by the Federal Court in
the case of Adorna Properties Sdn Bhd vs Boonsom Boonyanit that held
that the land fraudulently sold could not revert back to its original
owner. This judgment was finally overturned by another bench of the
Federal Court in 2010 when another similar case came before the Court.
If a rich man feels a lower court has not made the right decision, he
has the money to appeal up to the highest court. When a poor man feels
aggrieved by a court decision, he has to live with it for lack of money
to appeal. And if, in the case of the poor man, the decision was by the
High Court or first appellate court, the whole of society has to live
with that decision as it is a precedent case.
Is there no flaw in the justice system if the system allows clearly
wrong decisions to stand and worse, even be precedents for the lower
courts to follow? Does this aspect of the justice system serve the
national interest, as it allows the clearly wrong decisions to be
mandatorily applied by the lower courts? Imagine this happening in a
hospital?
It is time for some serious soul searching on this anomaly in the
justice system. There should be a mechanism to address instances of
seriously flawed judgments and not let them stand as precedents. Judges
are not infallible.
They are humans and despite all the training, could sometimes be
wrong as we have seen in the Adorna and the recent child rape cases. It
must surely be in the national interest for the justice system to have a
system to correct the manifestly obvious mistakes of judges and to
remove judges who do not understand the law.
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