My Letter published in Todayonline 09:30 PM Jan 06, 2010
Online Only - "Miscarriage of justice should not even happen at all..."
I refer to "'In the interest of justice' for court to right judicial wrongs" (Jan 6).
The report posed an interesting opening question: Whose responsibility is it to put right miscarriages of justice, if ever there are any - the judiciary or the President?
The majority of cases would not go up to this level as to pose a responsibility issue between the Court of Appeal and the President. Subjecting a plaintiff or claimant to serious drawback of an unending possibility of litigation seems a greater possibility. If our judiciary works solely on a system of counter-checking and following court decisions, this opening question may be apt. But in reality, this is not the case.
Time and cost constraints are important issues, not to the "officers of the court and judges" administering the system, but to the plaintiff and defendant, as in a commercial case where the "principle of finality" would be helpful in bringing justice to the aggrieved party speedily. The legal process is a rush. When we rush, are we hasty?
It is more important for those administering justice to see a greater responsibility to answer for its own miscarriage of justice during the process rather than leaving it for the legal process to take its natural course to ensure final justice. This should not be the case only when it involves a "capital punishment" case.
While the "finality principle" should not be applied strictly in criminal cases, I doubt the "finality principle" is conversely being strictly applied to help our system achieve greater justice and fairness for contending parties in commercial cases, such as those involving tortuous responsibility to compensate accident victims.
The report quoted the three-judge Court of Appeal to have said that it was "in the interest of justice" for the court to have that power to right its own wrong. Yes, we can leave the power for the court, but will judges (who enjoy the benefit of immunity like diplomatic agents) be willing to see and acknowledge its own wrongs while following the "finality principle"? Or will "ensuring of fairness" still be left for a higher court to decide, which drags the legal process. I believe the tendency is to leave it for a higher Court and the judicial system to take its natural course. A party adjudging a case will not admit or recognizes his own wrong.
Perhaps, we had left our judicial system to work too much on a model of counter-checking and following others' precedence under the Common Law system and if not, to leave it for a higher Court by taking the easier route of an "interim" judgment. The converse is to exercise taking greater (and own) responsibility to ensure fairness and finality in the administration of justice, without leaving it to a possibility of unending contentious matter which will prolong the legal process and place substantial burden on those seeking justice financially.
The problem is not simply one of pushing up or pressing down responsibility in the decision and authority chain. Miscarriage of justice should not be a by-product of our system to determine whose responsibility and which level of authority has the power to decide. It should not even happen at all in the first place, particularly in a capital punishment case.
What if the accused who is already sentenced is sent to death; and the defence lawyer had not acted in time? In the case of Yong Vui Kong, the 21-year-old who was sentenced to death last November for trafficking heroin, the deputy public prosecutor had argued against his defence lawyer seeking a stay of execution saying that granting it "would open the floodgates and allow for abuse of the judicial process".
In commercial cases, the "finality principle" is more likely to work conversely in forcing a decision down on both parties in litigation (plaintiff and defendant). It does not necessarily ensure greater fairness to an aggrieved party. Majority of cases would not go up to this level, wherein do the "floodgates" lie? Ensuring justice to the young accused is still more important.