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  • Dr Navin C Naidu

Miscarriage of justice

Updated: Oct 27, 2022

We have witnessed half-baked court decisions that clutter the annals of res judicata until they are thrown overboard by honest bakers working with clean ovens. That’s the carriage of justice on all four, failsafe and foolproof wheels that is far removed from being trite.

Hardly a contradiction in terms, the dispensation of justice has a multitude of hues. It’s neither black nor white, but there is a guaranteed lurking danger in the grey that silently demands questions, begs explanations, defies reform, and enflames the intellect. The worst hue in the justice game is the unasked, but relevant, questions in a court of law. Intellectual unrest must become an addiction to right these wrongs.

The police make enormous contributions to the miscarriage of justice with the advancement and advocacy of “parallel construction” where the entire case is built on manufactured and fabricated evidence to nab a suspect. “In the interests of national security, the evidence-gathering strategies must remain confidential,” claim law enforcement agencies with self-serving motives.

Samuel Butler ruefully noted that “while justice winks at crimes she stumbles sometimes upon innocence.” That’s because justice may be blind, but she has excellent listening devices. The beating heart of the issues are heard and listened to by human lie-detectors who can hear the squeaky wheels of the miscarriage of justice from afar.

The nuances of the law of evidence is another culprit. Imagine questioning a professional witness-for-hire (PWFH) in court whether he has ever lied in his life! His lawyer can be expected to scream his objections by citing and quoting a host of authorities as to the relevancy of certain questions. The flaw of fact-gathering for evidence takes its agonising toll at every police station and court of law. Apparently PWFH are handsomely rewarded for altering their statements in open court vis-à-vis statements made to investigators prior to trial.

The carnage and debris left behind in the wake of a miscarriage of justice is usually evident when the rule of law genuflects to politics. The law of evidence must be self-executing by imposing an immediate punishment on witnesses deemed not credible, reliable of believable because of their yo-yo statements during direct and cross-examinations.

In the justice game, a cunning lawyer is best equipped in mapping devious strategies to fool the court with manufactured and fabricated evidence. These experts know how to shift focus to irrelevant issues. They are masters in crafting loaded and leading questions laden with deceit. These unscrupulous lawyers, who give a rat’s belch in hell for professional ethics and etiquette, are the direct cause for the miscarriage of justice.

The Greek philosopher Plato cast it in concrete for all times: “Justice in the life and conduct of the State is possible only at first it resides in the hearts and souls of the citizens.” Plato was right about the rakyat seeing the wheat for the chaff and the trees for the forest – the harbinger of the jury system, perhaps.

The rakyat condemn corruption in the wake of the inability of law enforcement agencies to enforce the prevention and containment of this cancer. That, per se, is a miscarriage of justice. Is corruption irresolvable because it is unavoidable? Or, is it unavoidable and thus irresolvable? The government has effectively and effortlessly created a moral and legal dilemma.

A well-known legal maxim notices that justice is better when it prevents rather than when it punishes with severity. What preventive measures has government adopted to prevent corruption? Is prevention more cost-effective than enforcement? Has government earned a track record in the prevention of corruption? Hundreds of such pointed questions are often unasked even in Parliament. “A stupid question is the one not asked,” observed a thinker.

The criminal walks free when the constable bungles is the sine qua non of criminal law in corrupt regimes when the constable conducted the investigations dishonourably and dishonestly. This serious miscarriage of justice is commonplace when the law-giver and the dispenser of justice suffer from curta suppelex – a meagre stock of knowledge evidenced by the law and its handmaiden – justice – walking with crutches.

Never be swayed by the suspect principle of permissible harm when evil and the evil-doer are equally exonerated. It pays for the rakyat to be vigilant and wary of third-rate predators and peddlers of the law lurking in the shadows of the justice game.

The views expressed here are those of the columnist and do not necessarily represent the views of New Sarawak Tribune.


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