RESOURCE MATERIAL SERIES No. 56

PARTICIPATION OF THE PUBLIC AND VICTIMS FOR MORE FAIR AND EFFECTIVE CRIMINAL JUSTICE ADMINISTRATION

Ghazali bin Hj. Md. Amin*

I. INTRODUCTION unequals unequally, and that unequal treatment should be in proportion to the In any civilized society of today, the word inequality (Barry P. Norman; Modern justice (or injustice) refers to the rules and Political Theory; 1995; p.153). procedures that characterize social practices which are applied to the actions III. DEFINITIONS OF THE of individuals who participate in these CRIMINAL JUSTICE SYSTEM practices. When we speak of a breach of the rules of ‘natural justice’, we are Newman D.J defines the criminal justice referring to arbitrariness suffered by an system as, “a system that enforces individual in a ruled-governed process traditional systems, analysis of which (Barry P. Norman, 1955; An Introduction includes describing the structural inter- to Modern Political Theory; p.149). Thus, relationship of legislative, appellate court, when we talk about justice, it implies enforcement and administrative agencies, equality before the law, otherwise certain as well as their corresponding process of forms of inequality are arbitrary and decision making from the arrest of suspects unjust. through charging, adjudication, sentencing, imprisonment and release on As Rawls himself says, “Justice is the parole”. Reid (1982) defines the criminal first virtue of society” (Rawls, J.; 1972, The justice system as, “the agencies responsible Theory of Justice p.3) and most people for the enforcement of criminal law would agree that, although a society may including legislation, police, courts and exhibit other moral values than justice, a corrections. Their processes of decision society characterized by injustice would be making consists of the prevention, detection especially blameworthy. Not only is it right and investigation of crime; the to act justly, it is also specifically wrong to apprehension, accusation, and detention act unjustly. and trial of suspects; the conviction, sentencing, incarceration or official II. DEFINITIONS OF JUSTICE supervision of adjudicated defendants”. The Webster dictionary defines justice IV. EQUALITY IN THE MALAYSIAN as the administration of law, authority or CONTEXT jurisdiction in conformity with moral principles or law. According to Barry, the In Malaysia, a similar expression is conventional accounts of justice normally found in Article 8(i) of the Federal begin by stating a fundamental rule that Constitution, which guarantees that: “All derives from Aristotle. The theory is that persons are equal before the law and justice means treating equals equally and entitled to the equal protection of the law.” This expression of “equal protection of the * Superintendent, Public Relations, Royal Malaysia law”, was implanted in tote (derived form) Police, Malaysia. from Art.14 and Art.4 of the Indian and

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Pakistani Constitution, respectively. It justice system, the police, in executing their must also be mentioned here that although official duties, must ensure that any the Reid Commission in 1957 felt that shortfall in police action does not result in fundamental individual rights were “justice denied” to the person concerned. already established throughout Malaysia, In order to ensure and guarantee that nevertheless they felt that there should be justice is neither delayed nor denied, a constitutional safeguard because of Vincent Ng Kim Khoay, J.C. in PP v Lee apprehensions about the future Eng Kooi (1993) 2 AMR (Supp. Rep) 480 [ of Malaya (Constitutional rightly said, “Public interest consideration Commission, 1956-1957 Report, Paragraph demands that criminals are apprehended, 161) ]. rightly charged, fairly tried, justly convicted and appropriately sentenced. It is only V. POLICE ROLE IN THE through an interplay of good law officers CRIMINAL JUSTICE SYSTEM (police), honest and able DPPs, ethical lawyers and competent magistrates and Police are one of the integral components judges that these essential links in the of a criminal justice system. The police are administration of justice and maintenance always refered to the “long arm of the law”, of law and order are ensured for society. A “law enforcers”, as well as “peace shortfall in any these links hardly serves mediators”. In the course of the execution the public interest”. of their official duties, there may be some shortfalls or flaws in police actions. Such VI. PUBLIC ALSO HAS A ROLE TO police actions are pertaining to sections 3(3) PLAY IN CRIME PREVENTION of the Police Act, 1967; sections, 15, 28 and 117 of Criminal Procedure Code (Arrest); The surge in the crime rate last year, as sections 54 and 62 CPC (Search); and revealed by the police, is a reminder that sections 387 and 388 CPC (Bail). If police the people must never take safety and personnel, are ‘ultra vires’ of their official security for granted. According to jurisdiction in the course of performing statistics, the crime index rose from 87,902 their duties, or contravene any of the above cases in 1996 to 121,176 in 1997 (index mentioned sections of law, their actions, if crime is made up of violent and property done without due care and proper crimes). Policing say the increase was accountability, may result in a miscarriage significant, compared with the rise of 6,681 of justice on the part of the persons cases or 8.23% in 1996 from 81,221 cases concerned. in 1995. In 1997 property crime topped the list with 104,257 cases, an increase of As Alan E. Ellis said about law and 28,695 or 37.98%. The police had solved justice, “The concept of law, using law and 17,824 property crimes and 7,916 violent law enforcement, is only part of the large crimes. In the wake of these statistics, idea of justice...... Justice includes the use questions have been asked as to whether of law and it can’t really exist in society we have done enough to prevent crime. without order. But the idea goes beyond While we recognise that the police have a both law and order. It is close to what might major role to play, the responsibility is not be called fundamental fairness, liberty or ours alone. One leading newspaper almost moral decency...... ”. recently pointed out that while Malaysia is a comparatively safe to live in, As law enforcement is the most critical its citizens and residents should remember and visible component of the criminal that these are extraordinary times.

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VII. COMMUNITY CRIME Foundation (MCPF) was established on 12 PREVENTION : WHY IS IT January 1993. The launching of the IMPORTANT ? Foundation was officiated by the Honourable Prime Minister of Malaysia, Community crime prevention means Dato’ Seri Dr. Mahathir Mohamed, who is people sharing the responsibility for also the patron of the Foundation. making the place where they live more secure. It doesn’t mean taking on the role 1. Objectives of the police, but using valuable police (i) The Foundation aims to contribute resource more effectively. to the enhancement of effective measures for crime prevention and The premise for community crime the treatment of offenders by way prevention is the same as for any of survey, research and other community endeavour - when people pull programmes. This is the basis of together to solve common problems, much solidarity and mutual co-operation is possible. Since residents know their own among persons involved with communities better than anyone, they can criminal justice system in often find solutions ideally suited to the of the Asian ; pursuing the social and cultural identity of their ultimate goal of peace and stability community. in the region. Obviously, for a community to undertake (ii) The Foundation shall also promote a successful crime prevention program, an public awareness of, and organized approach and a strong sense of participation in, crime prevention commitment are needed. In most efforts in tandem with the co- communities, there are individuals and ordinated efforts of government and groups with a proven track record of private organisations interested or organizing any number of local projects. involved in crime prevention and Frequently these people are leaders and the criminal justice system. volunteers alike and will have a long- standing commitment to improving the (iii) The Foundation shall receive and quality of community life. administer all funds for the fulfilment of the above objectives A growing number of community-based for the benefit of all Malaysians, organisations are now taking action or irrespective of race, creed or looking for ways they can be involved in religion. crime prevention programs. Some take part in programs such as 2. Activities Watch. Others are creating new programs In furtherance of its declared objectives, designed to meet the specific situation in the Foundation shall undertake the their community. following activities: VIII. COMMUNITY POLICING/ (i) Organise, co-ordinate, promote ACTIVITIES FOR ENHANCING activities and assist other PUBLIC AWARENESS organisations, institutions, bodies A. Malaysia Crime Prevention and persons for the purpose of Foundation (MCPF) crime prevention. The Malaysia Crime Prevention

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(ii) Organise or assist in organising (ix) At least 70% of all income of the public lectures, training sessions, donations to the Foundation shall symposia, seminars, exhibitions be utilised for the fulfilment of the and other meetings concerning declared objectives of the research, training and public Foundation. enlightenment and awareness in connection with crime prevention (x) Collect and receive grants, and the treatment of offenders. endowments, donations and legacies from individuals or (iii) Conduct, assist or encourage such organisations or from any other activities as surveys, research and source for the promotion of the related activities in the field of objectives of the Foundation. crime prevention and the treatment of offenders. (xi) Solicit funds to support and sustain non-commercial activities (iv) Publish and distribute pamphlets, organised in fulfilment of its periodicals and other relevant declared objectives. literature to expound the aims and objectives of the Foundation, (xii) Generate income by utilising not subject to the prior approval of the more than 30% of all income and relevant authority. donations to the Foundation in short-term investments, the profits (v) Publish, exchange and distribute of which shall be used solely to fulfil documents and source materials the objectives of the Foundation. concerning crime and criminal justice, mainly in Asia. (xiii) C o n t r i b u t e t o w a r d s t h e rehabilitation of and assistance to (vi) Send, invite, assist in sending or the victims of crime, where such inviting researchers and experts in assistance is considered by the the field of crime prevention and Foundation to be appropriate the treatment of offenders, according to the merits of each case. regardless of their place of residence. 3. Membership (i) Ordinary Members: All individuals (vii) Assist the activities of those who whose applications for membership work for the rehabilitation of have been approved by the victims, offenders and former Executive Council. A university or offenders in Malaysia. university college student may become a member with the prior (viii) Collaborate and co-operate with approval of the vice-chancellor of other related organisations inside the university concerned. and outside Malaysia, particularly the United Nations Asia and Far (ii) Honorary Members: Individuals East Institute for the Prevention of who have been considered by the Crime and Treatment of Offenders Executive Council to be appropriate (UNAFEI) and other similar because of their outstanding regional organisations. contributions to the activities of the Foundation.

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(iii) Corporate Members: Duly dismissed from being a member. constituted associations, clubs or other similar bodies interested in A member intending to terminate their or contributing to the activities of membership shall submit a written notice the Foundation and considered by of intention to the Chairmam of the the Executive Council to be Executive Council. The Executive Council appropriate for the honour. may dismiss a member from membership in any one of the following circumstances: (iv) Life Members: The Executive Council may, in its absolute (i) When a member has damaged the discretion, grant life membership to reputation of the Foundation or members who have made acted in a manner prejudicial to the outstanding contributions to objectives of the foundation; promote the activities of the (ii) When a member has acted against Foundation. their membership obligations; (iii) When a member is conspicuously in The Executive Council may fix an default of membership dues and entrance and subscription fee for members continues to neglect the reminders and may, from time to time, vary the same, for payment. subject to the approval of the Registrar of Societies. The entrance fee shall be No subscription or part thereof, nor RM20.00 and the annual subscription fee entrance fee, if any, shall be returned to a shall be RM30.00. Corporate members member upon ceasing to be a member by shall pay an entrance fee of RM2000.00 and resignation, expulsion or termination of his annual subscription fee of RM2000.00. membership. The Foundation is not under the purview of the police, even though it The Executive Council shall have full has police officers within it. It is an NGO. power and discretion to approve or refuse applications for membership to the B. Central Monitoring System (CMS) Foundation. Only ordinary members, life The Malaysia Crime Prevention members and representatives of corporate Foundation (MCPF) is going all out to and associate members are eligible to vote reduce crime in the country. Two of its and be elected or appointed to the current projects are the Central Monitoring Executive Council. Each corporate and System (CMS) and Safe Concept, associate member may nominate a number which are aimed at making it more difficult or representatives, as determined by the for people hoping to embark on a life of Executive Council, to participate in the crime. activities of the Foundation. Corporate and associate members are each eligible to a One of the main projects of the single vote. foundation is the implementation of a crime-fighting tactic known as the Central Membership sall be terminated on the Monitoring System (CMS) which will allow following grounds: the public to actively in combating house break-ins. With the CMS, the government (i) When the member resigns their won’t have to recruit more police personnel membership from the Foundation; and incur extra cost, especially at a time (ii) On their demise; when austerity drives are being adopted (iii) When the member has been nation-wide. Even if the economy was still

228 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS bullish, the public must play its part in constables. For example, if an alarm goes order for the police to effectively combat off in a house, a watch-constable will notify crime. the police before rushing to the scene. But if he arrives first, he can apprehend the The public expects the police to be unauthorized intruder. The watch- responsible for ensuring everybody’s safety; constables will be under the direct employ it is impossible. With our nation’s current of the security company operating the CMS population of 21 million, the ratio of police on behalf of the housing developer. personnel to civilians is 1:273. The logistics However, the police will monitor their of this ratio are indeed a handicap. There selection. They will have to undergo is no way everybody can be protected all training at the Police Training Centre the time. Based on limited human (Pulapol) and come under the command resources, the best that the police can do is and control of an area’s OCPD. introduce efficient crime-busting systems, step up patrols and quickly respond to As for the cost of the CMS, any service distress calls. rendered will have to be paid for. The cost will be a nominal monthly fee, which will At one time, we had neighbourhood vary depending on the type of system watch groups such as , but installed. With wide usage, we believe the they fizzled out. People are either too busy cost of installing a CMS will be reduced, with their daily affairs or do not want to as was the case with hand-held phones, spend time on such activities. The CMS which are much cheaper now than when will be implemented at the planning stage they were first introduced. In time, it my of a housing scheme or and will become a necessity rather than a luxury. represent a partnership between the The CMS will give house owners total peace developer, police and residents. The first of mind. It is actually a system which scheme to go online with the system will provides on-line communication, protecting be Bandar Utama Damansara in Petaling homes against intrusion by unauthorised Jaya. When operational sometime this persons. year, this upper-middle class residential estate will be the test-bed for an array of State-of-the-art onsite sending devices hi-tech equipment and newly devised laws. will alert trained personnel who will The CMS uses a sophisticated computer monitor a control room 24 hours a day. system with a control or operations room They can then take immediate action which is connected to the houses of should the need arise. Most CMS stations subscribers. In the event of a beak-in, are also equipped with monitors to enable sensors or cameras trigger off a signal in the controllers to view clients’ premises, the control room. The control room will be thereby helping to minimise the time taken monitored by watch-constables who are to check the status of an alarm. Such trained to respond immediately to any monitoring can be done by installing intrusion. special cameras with infrared sensors in strategic locations such as the living room, The watch-constable won’t be run-of-the- kitchen, staircase and study. mill security guards. Under Section 9 of the Police Act, they will be empowered to Every case will be investigated arrest suspects. This will make it easier immediately, but only in genuine situations for them to carry out their duties. The will clients be alerted and call the police police force will give support to the watch- for back-up. If the police come, watch-

229 RESOURCE MATERIAL SERIES No. 56 constables will assist in giving them an which that behaviour takes place. The Safe account of the burglary progress and City Initiative is an approach that can be location in the house. This will help the used to create a physical environment that police to act fast and accurately. can help in crime prevention in developing areas. It is a programme with integrated The government will be careful in the activities towards creating, or at least selection of firms participating in the CMS reducing the fear of, a city that is free from programme. Any security firms intending crime. to appoint watch-constables will have to apply to the Home Ministry for a licence. The Safe City Concept, involves the Only when the Ministry is satisfied that envelopment of a certain area. It involves the applicant fulfils all its requirements how buildings and structures are to be built will it grant approval. to prevent crime. Example: how advertising boards are put up on C. Safe City Initiatives pedestrian crossings. If it is all blocked The MCPF, spearheading the move to when you use the crossing, nobody can see ensure safety in the , was formed in you when you are robbed. Transparent 1993 to promote greater social and public advertisement boards should be used involvement in crime prevention. Its instead. This in just one small part of the current chairman is Education Minister, Safe City Concept. Where trees are planted Dato’ Sri Mohd. Najib Tun Abdul Razak. is also important- overgrown bushes should also be avoided because these can act as 1. Background an ideal place for criminals to . Studies The Safe City Initiative is based on the from some European countries and North principle “prevention is better than cure”. America have shown that the way This crime prevention approach is through and estates are designed is seen to have environmental design. It is based on the an affect on the crime rate. principle that crime prevention is achieved by reducing the opportunity to commit Besides that, it has been shown that the crime. In the United States, crime way a is designed also results in prevention is by reducing the opportunity families being more friendly with each to commit crime. In the United States, other, reducing the rate of crime because criminal psychologists have proved that they will watch out for each other. Under 75% of crime is from victims behaviour the Safe City Concept, safety lanes for which encourages criminals to commit bicycles and motorbikes, and safer roads crimes against them. For instance, most will be built. It is holistic concept to make of the robberies and highway crime happen living in the city safer. because of opportunity, not because it was professionally planned. Experts within the MCPF, like the director of the Town and Country Planning Based on the above, it was decided that Department of Selangor, who is an exco prevention requires a physical member, is working on the Safe City environmental design which can generate concept. Developers are also updated on social behaviour that can deter criminals the State City Concept. from committing crime. This physical environmental design is consistent with The MCPF is also involved in the predictable relationship between researching the field of crime prevention, human behaviour and the environment in and sometimes invites experts from

230 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS different parts of the world to give talks on (xi) Continuous monitoring and new insights on fighting crime. The feedback. foundation is not under the purview of the police, even though it has police officers 4. Safe City Initiatives of Bangsar Zone within it. It is an NGO. The Malaysia Crime Prevention Foundation (MCPF), chaired by the We hope that in the future the MCPF Honourable Dato’ Sri Mohd. Najid Tun will almost be exclusively made up of non- Abdul Razak, has decided to implement the police personnel, except for the post of duty Safe City Initiative to combat crime in chairman who must be the IGP. The Malaysia. A special committee was formed latter’s presence will ensure police support to study in detail its implementation. On and supervision of its crime prevention June 2nd 1998, the MCPF Exco meeting project. decided the two pilot projects, i.e in Bangsar and Cheras Flats in Kuala 2. Characteristics Lumpur, be implemented. Both projects • Partnership between government will be made models for future and citizens, especially marginalized implementation in all states. groups; • Prevention of criminal behaviour Safe City Initiative’ Bangsar Zone through environmental design, comprises of the following areas: community development and education; • Sri Hartamas Residence Area • Combine citizens in crime prevention • Bukit Bandaraya Residence Area and instil neighbourhood spirit; and • Bangsar Baru Residence Area • Urban safety as a catalyst for change. • Lucky Garden Residence Area • Bangser Park Residence Area 3. Schedule of Activities • Bangsar Baru Town Area (i) Selection of project area, introduction to project area and IX. PUBLIC PARTICIPATION & target group; CO-OPERATION IN CRIMINAL (ii) Explanation of concept to target JUSTICE PROCESSES group; A. Investigation (iii) Formation of the Safe City 1. Arrest by Private Persons (SEC. 27 Committee for project area; CPC) (iv) Identification of issues/problems/ Any private person may arrest any crimes by target group and person who, in their view, commits a non- Committee; bailable and seizable offence, or who has (v) Solution to issues/problems by been proclaimed under section 44, and target group and Committee; shall without unnecessary delay take the (vi) Engagement of consultant if person so arrested to the nearest police necessary; officer or, in the absence of a police officer, (vii) Implementation of solutions; take such person to the nearest police (viii) Monitoring effectiveness of station. solutions; (ix) Modifications of solutions if 2. Information (SEC. 107 CPC) necessary; (1)All information relating to the (x) Documentation of project activities; commission of an offence, if given and

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orally to an officer in charge of a No person employed on a railway police station, shall be reduced to shall be required to leave their writing, or under direction, and be employment under such read to the informant. circumstances as to endanger the lives of persons traveling on the (2) All such information shall be entered railway. in a book to be kept by such officer, who shall append to such entry the 4. Examination of Witnesses by Police date and hour on which such (SEC. 112 CPC) information was given, and whether (1) A police officer making a police given in writing or reduced to writing investigation under this chapter may as aforesaid, shall be signed by the examine orally any person supposed person giving it. to be acquainted with the facts and circumstances of the case, and shall 3. Police Power to Require Attendance of reduce into writing any statement Witnesses (SEC. 111 CPC) made by the person so examined. (1) A police officer making an investigation under this chapter may, (2) Such a person shall be bound to by order in writing, require answer all questions relating to such attendance before themself of any a case as put to them by an officer. person being within the limits of the Provided that such a person may police in which s/he is making refuse to answer any question, the an investigation who, from the answer to which would have a information given or otherwise tendency to expose them to a criminal appears to be, acquainted with the charge or penalty or forfeiture. circumstances of the case. Such persons shall be, required under this (3) A person making a statement under section to perform a journey of more this section shall be legally bound to than seven miles from their usual state the truth, whether or not such place of abode, exclusive of such a statement is made wholly or in portion of the journey as may be answer to questions. performed by train or motor car or other vehicle. (4) A police officer examining a person under subsection (1) shall first inform (2) If any such person refuses to attend that person of the provisions of as so required, such a police officer subsections (2) and (3). may report the refusal to a Magistrate who may thereupon in (5) A statement made by any person their discretion issue a warrant to under this section, whether or not a secure the attendance of such a caution has been administered to person as required by the aforesaid them under section 113 (1), shall, order. whenever possible, be taken down in writing and signed by the person (3) Any police officer requiring the making it or affixed with their thumb attendance of any person employed print as the case may be, after it has on a railway shall send immediate been read to them in the language in information thereof to the person in which s/he made it and after s/he has charge of the nearest railway station. been given an opportunity to make

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the corrections s/he may wish to original summons and by tendering make. or delivering to them a copy thereof under the seal of the court. 5. Omission to Assist Public Servant When Bound by Law to Give Assistance (2) Every person on whom a summons (SEC. 187 PC) is served shall, if so required by the Whoever, being bound by law to render serving officer, sign a receipt for the or furnish assistance to any public servant copy thereof on the back of the in the execution of their public duty, original summons. intentionally omits to give such assistance, shall be punished with imprisonment for a (3) In the case of a corporation, the term which may extend to one month, or summons may be served on the with a fine which may extend to four secretary or other like officer of the hundred ringgit, or both. If such assistance same. is demanded by a public servant legally competent to make such a demand (for the (4) Where the person to be summoned purpose of executing any process lawfully cannot, in the exercise of due issued by a court, or for preventing the diligence, be found, the summons commission of an offence, or for may be served by leaving a copy suppressing a riot or affray, or for thereof for them with some adult apprehending a person charged with or member of their family or with a guilty of an offence, or of having escaped servant residing with them. from lawful custody), they shall be punished with imprisonment for a term 3. Procedure When Personal Service which may extend to six months, or with Cannot be Effected (SEC. 36 CPC) fine which may extend to one thousand When the person to be summoned ringgit, or both. cannot, by the exercise of due diligence, be found, and service cannot be effected as B. Prosecution directed by sec.35 (4), the serving officer 1. Form of Summons and Service (SEC. shall affix a copy of the summons to some 34 CPC) conspicuous part of the house or other place (1) Every summons to appear, issued by in which the person summoned ordinarily a court under this Code, shall be in resides. In such cases the summons, if the writing and signed as provided by the court so directs, either before or after such Courts of Judicature Act 1964, or the affixing, shall be deemed to have been duly Courts Ordinance 1948, and shall served. bear the seal of the Court. 4. Allowances / Protection (2) Such summons shall ordinarily be All allowances are paid to witnesses served by a police officer but the attending court cases and protection is Court issuing the summons may, if it given on a selective basis, based on the sees fit, direct it to be served by any seriousness of the case. other person. 1. Payment of the Expenses of Prosecutors 2. Service Procedure (SEC. 35) and Witnesses (Sec 427 CPC) (1) The summons shall, if practicable, be In every criminal case tried before the served personally on the person High Court, and in every criminal case summoned by showing them the tried before a Sessions Court or a

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Magistrate’s Court, such a court may, General to advise the Yang di-Partuan in its discretion, order payment out of Agong or the Cabinet or any Minster upon the Consolidated Fund to the such legal matters, and to perform such prosecutor and to the witnesses, both other duties of a legal character, as may for the prosecution and for the defence, from time to time be referred or assigned or to such of them as it thinks fit, of to by the Yang di-Partuan Agong or the the expenses incurred by them Cabinet, and to discharge the functions severally in and about attending the conferred on them by or under this High Court, or the Sessions Court or Constitution or any other written law. Magistrate’s Court, and also as compensation for their trouble and loss The Attorney-General shall have power, of time, subject to such rules as are exercisable on discretion, to institute, prescribed. conduct or discontinue any proceedings for an offence, other than proceedings before 2. Reward for Unusual Exertion (Sec a Syariah Court, a native court or a court- 430CPC) martial. Whenever it appears to any court that a private person has shown unusual The Federal Government may confer on courage, diligence or exertion in the the Attorney-General the power to apprehension of a person accused of determine the courts in which, or the venue having committed, attempted to at which, any proceedings which s/he has commit or abetted an offence power under clause (3) to institute, shall punishable with death or be instituted, or to which such proceedings imprisonment, such a court may order shall be transferred. payment to them, out of the Consolidated Fund, of any sum not In the performance of duties, the exceeding one hundred ringgit. Attorney-General shall have the right of audience with, and shall take precedence 3. Compensation for Family of a Person over, any other person appearing before Killed during Arrest (Sec. 431 CPC) any court or tribunal in the Federation. If any person is killed in endeavouring to arrest or to keep in lawful custody a Subject to clause (6), the Attorney- person accused as aforesaid, the General shall hold office during the Minister of Finance may order payment pleasure of the Yang di-Pertuan Agong and out of the Consolidated Fund to the may at any time resign and, unless s/he is wife, husband, parent or child of the a member of the Cabinet, shall receive such deceased of such a sum or sums as remuneration as the Yang di-Pertuan appear reasonable in compensation for Agong may determine. the loss sustained. The person holding the office of Attorney- C. THE ATTORNEY-GENERAL General immediately prior to the coming The Yang di-Pertuan Agong shall, on the into operation of this Article shall continue advice of the Prime Minister, appoint a to hold the office on terms and conditions person (who is qualified to be a judge of not less favourable than those applicable the Federal Court) to be the Attorney- to him/her immediately before coming into General for the Federation. operation and shall not be removed from office except on like grounds and in a like It shall be the duty of the Attorney manner as a judge of the court.

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D. Judiciary Justice of the Peace shall take and 1. Justice of Peace subscribe an oath in the presence of a judge in chambers. 1. Appointment of Justices of the Peace, Subordinate Courts Act 1948 (Sec. 98) Nothing in this section shall be deemed to require a Justice of the Peace to be The Yang di-Pertuan Agong may, by satisfied as to the contents of any warrant under hand, appoint such document, or that the proper stamp persons as deemed fit to be Justices of duty prescribed under any written law the Peace within and for the Federal has been paid thereon, except to ensure , and may, in like manner, that one or more stamps have been revoke any such appointment. affixed to the document and that they have been cancelled in the manner The State Authority may, by warrant prescribed by law prior to signature under hand, appoint such persons as and attestation. deemed fit to be Justices of the Peace within and for the State, and may, in A Justice of the Peace, whilst exercising like manner, revoke any such powers or performing duties as such, appointment. shall be deemed to be a public servant within the meaning of the Penal Code, All appointments and revocations of and the Public Authorities Protection appointments made under this section Act 1948; this shall apply to any suit, shall be notified in the Gazette. action, prosecution or proceeding arising therefrom. 2. Power of Justices of the Peace, Subordinate Courts Act 1948 (Sec. 99) E. Juvenile Court Justices of the Peace in West Malaysia A juvenile can only be tried in a juvenile shall have, and may exercise within the court, which is very different in composition State for which they are appointed, and procedure from other by courts. The such powers not exceeding the powers juvenile court is presided over by a of a Second Class Magistrate as may magistrate who is assisted by two advisors, be conferred upon them by any written one of the whom is usually a woman. It is law. not an open court, and only the court, court officials, parties to the case, parents or Justices of the Peace in Sabah shall guardians, lawyers, witnesses and have, and shall exercise and perform, newspaper reporters are allowed to be such powers and duties as may be present. The media cannot reveal the conferred or imposed upon them by any name, address or school or any other written law. They shall also have such particulars which may lead to the other powers and duties as the Minister identiffication of the juvenile. may, by regulations, confer or impose upon them, and the Minister may F. The Legal Aid Scheme in confer or impose the said powers and Malaysia duties upon all or any of the Justices of the Peace. 1. Mission Towards becoming an excellent agency, Before exercising or performing any of by providing caring and professional the powers or duties conferred, a legal aid and advice services to persons

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who qualify under the Legal Aid Act X. PUBLIC PARTICIPATION & CO- 1971. OPERATION IN THE TREATMENT OF OFFENDERS 2. Objectiive To date, 24,500 offenders are still under The objective of the Bureau is to detention in 36 various prisons and provide legal assistance to those who rehabilitation centres all over Malaysia. cannot afford legal fees and to uphold The administration is run by the Prison the principle of equality before the law. Department, which is directly under the Ministry of Home Affairs. They were 3. Function sentenced to prison by the courts for • To provide legal advice in all legal offences committed under the Penal Code, matters; Dangerous Drugs Act, Firearms Act or • To represent or provide legal other laws. Records show that public assistance in proceedings in all courts participation and co-operation in the in Malaysia in matters within the treatment of offenders was overwhelming. jurisdiction, as provided by law; and There were so many programmes and • To educate members of the public on projects being held. Two good example are their rights under the law. as follows: G. Conflict Resolution System A. Religious Activities Outside Trial: Plea Bargains There were more than 20 religious There is no governing law here, but it is organizations conducting various religious not illegal and it is not unusual to have activities and programmes in all 36 prison/ plea bargaining take place between the rehabilitation centres. The religious prosecution and the defence counsel only. organizations represented not only Muslim The court does not take part in the bilateral organizations but also Christian, Buddhist agreement. The matter of sentencing is and Hindu organizations. still up to the discretion of the courts. B. Therapeutic Community (TC) - Previously in a murder case, the defence Role Model and prosecution could have quick discussions at the bar table in court and 1. Objectives come to an agreement that the charge (a) To remind school children not to get under Section 302 of the Penal Code be involved in and to avoid committing reduced to Section 304. Not being able to crime. do that could cause delays and backlog. (b) To remind parents of the importance Public prosecutors have to put ‘on record’ of care and concern towards the social all requests and discussions with lawyers activities of their children in avoiding who ‘plea bargain’ for a reduction of charges crime. or for a review of a case. Any such application must be done in writing by the 2. Activities defence counsel (on record) to the Attorney (a) Talks/lectures were conducted by General or the head of the Prosecution offenders who were still serving their Division or State Legal Advisor. sentence, with the guidance of counsellors from the prison department to selected schools.

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(b)Slides/video/film shows. shall be applicable to any order made under this section. The court may direct that an 3. Target order for payment of costs, or an order for (a) All secondary schools in Malaysia. payment of compensation, shall have priority, and, if no direction be given, an (b) Teachers and Parent Associations order for payment of costs shall have through out the country. priority over an order for payment of compensation. In 1998, the programme was conducted in 19 schools in the state of Selangor, while To the extent of the amount which has 34 secondary schools in the Federal been paid to a person or to the Territory of Kuala Lumpur. About 11,000 representatives of a person under an order students and 3,000 parents participated in for compensation, any claim of such person this programme. So far 16 institutions or representatives for damages sustained (prisons) were actively involved in this TC by reason of the crime or offence, shall be programme. deemed to have been satisfied. The order for payment shall not prejudice any right to a civil remedy for the recovery of any XI. ASSISTANCE TO VICTIMS & property or for the recovery of damages VICTIM PARTICIPATION IN THE beyond the amount of compensation paid CRIMINAL JUSTICE PROCESS under the order. Every order made under this section by a magistrate shall be A. Order for Payment of Costs of appealable to the High Court. Prosecution and Compensation (SEC. 426 CPC) B. Victim in the Criminal Justice The court before which a person is Process convicted of any crime or offence may, in Until very recently, there was a striking its discretion, make either or both of the lack of information about victims, and even following orders against them, namely: now, knowledge is still fairly sketchy, limited to certain crimes and often, to (a) an order for payment of the cost of certain types of victims. This ignorance is prosecution or such part thereof as astonishing when one considers that the the court directs; criminal justice system would collapse if victims were to refuse to co-operate. Some (b) an order for the payment of a sum to victims have found that their treatment by be fixed by the court by way of officals in the justice system - the police, compensation to any person, or to the lawyers, court officials, judges and representatives of any person, compensation boards - is too stressful, injured in respect of their person, demeaning, unfair, disregarding of their character or property by the crime or feelings, rights, needs and interests. offence for which the sentence is Sometimes, they see the system as a second passed. victimisation which can be more unpleasant than the original crime. In The court shall specify the person to such cases, they may become disenchanted whom any sum in respect of costs or with the system and choose not to report compensation, as aforesaid, is to be paid; or to co-operate in the future; their and the provisions of section 432 [except experiences may also affect friends and paragraph (d) of subsection (1) thereof] family, and even the general public,

237 RESOURCE MATERIAL SERIES No. 56 spreading a general reluctance to co- to be repaid for his or her losses. operate. This syndrome is best known in rape cases were few women are willing to Compensation has been justified in co-operate, but also exists in other areas. several ways. Some say that the State has an obligation to protect the welfare and Victims often feel they are being used safety of its citizen, and that when it fails by the courts. They are expected to report to prevent crime, it should pay victims for to the police but are not always made feel their losses. Another rationale for comfortable in doing this. For most victims compensation is that it may prevent the police station remains a fairly victims from becoming angry at the uninviting environment. This reduces the criminal justice system and alienated from effectiveness of crime control, as it the political system (Schafer, 1968; Stookey, increases the offender’s chance of getting 1981). Even though compensation away undetected. If victims are asked to programs are sometimes aimed at public identify offenders, they are rarely screened attitudes toward the criminal justice and may, through fear of facing the system and the government, research offender, fail to identify him or her. When indicates that many victims who have called to give evidence, they are rarely sought compensation are disenchanted permitted to relate their experiences in with the criminal justice system. Indeed, their own words but are forced to answer administrative obstacles to securing questions which may actually misrepresent compensation, and the inadequate rewards their account of what occurred. provided to victims, seem to engender more Furthermore, if they refuse to co-operate, discontent towards the legal system among they may be prosecuted because they would applicants for compensation, than exists be obstructing the course of justice. The among people who do not apply for proceedings are indeed mostly adapted to compensation (Elias, 1983, 1984). the needs of the State, which has also been victimised in that its peace and its rules Compensation programs must deal with have been broken. The State has an the problem of the victim’s contribution to interest in the social control of offenders the crime. Victims sometimes precipitate and therefore has a right to require anyone a crime or contribute to their own to give evidence, but not at the expense of victimization, and in such cases, the State victims’ rights and interest. might choose not to compensate the victim. For instance, someone who first uses force C. Remedies against another person and then ends up In recent years, more attention has been badly injured in a fight might not be paid to victims. Systems of compensation compensated if the State Compensation and restitution have developed to repay Board found that the crime would not have victims for their losses. occurred without the victim’s initiating actions. In Great Britain, compensation is 1. Compensation limited to ‘deserving cases’, and this is Compensation is a system in which the determined in part by the degree to which State repays victims for their financial the victim is to blame for his or her own losses or physical injuries. Under this victimization (Schafer, 1968). system, it is not necessary to arrest and convict an offender for a victim to be 2. Restitution compensated, nor does a convicted offender A system of restitution requires have to be financially solvent for the victim offenders to make monetary payment or

238 112TH INTERNATIONAL TRAINING COURSE PARTICIPANTS’ PAPERS provide services, either to the victim or the victims and witnesses the importance of community at large. Relatively, few testifying in court. In some jurisdictions, criminal courts have used restitution victims have even been included in plea extensively, but growing concern for bargaining conferences with the district victims’ rights has led some judges to attorney, the defence attorney and the require offenders to repay victims for their defendant (Heinz and Kerstetler, 1981). losses. One study found that victim-witness programs in prosecutors’ offices contributed Some claim that restitution makes in an important way to keeping victims offenders take responsibility for their informed about the progress and outcome behaviour and thus helps rehabilitate them of cases, and that crime victims expressed (Denning, 1976). Others claim that more satisfaction with the criminal justice offtenders who repay their victims may not system when they knew the outcome of the feel guilty for their crimes if they believe case and thought they had influenced that they have corrected their wrongs, and that outcome (Forst and Hernon, 1985). this may make it more likely that they will continue to commit crime. Restitution Few judges learn directly from victims might improve crime reporting if victims about the impact crime has on their thought they would be repaid for their psychological well-being, physical condition losses. Moreover, by easing public hostility and financial situation. Usually, judges toward offenders, restitution might reduce learn about this only from pre-sentence the isolation of offenders from conventional reports prepared by probation officers, who society and make it easier to reintegrate draw on secondhand information from them into society after they are released police reports, medical records, or victim from prison. Restitution would also lighten discussions with prosecutors. As a result, the burden on taxpayers if it replaced a some courts have introduced victim impact system of state compensation (Barnett, statements, detailed written reports based 1977; Bridges, Grandy and Jorgendon, on interviews with victims about the effects 1979). of crime on them (Forst and Hernon, 1985). In 1987, the US Supreme Court ruled that 3. Others such victim impact statements could not Victims have also been given a greater be used in hearings on the imposition of voice in the sentencing of offenders, though the death penalty, arguing that those defendants are usually allowed to respond hearings should focus on the defendant’s to victims statements. In some ‘moral blameworthiness’ rather than on the jurisdictions, victims must be notified of impact of the crime on the family of the hearings and trials and be informed when victim. an inmate is being considered for parole or escapes from prison. Today, nearly all states (in the USA) permit victims to appear at parole board In America, district attorneys have hearings or to file written statements with started to pay more attention to the role of parole boards, in order to make their the victim in the criminal justice system. wishes known whether a prisoner should They can help to deal with a victim’s fear be released. This reform was introduced of retaliation by the offender, frustration to the Federal Prison System in 1984. with delays in the court, and intimidation Many victims do not take this opportunity by a defence attorney’s cross-examination. to make their wishes known, either fearing District attorneys can also impress on retaliation or not wanting to dredge up

239 RESOURCE MATERIAL SERIES No. 56 unpleasant memories of past crimes.

However, those who oppose the use of victim’s testimony to parole boards and victim impact statements in court fear that those reforms might introduce public pressure or vengeance into proceedings that should be more dispassionate. They claim that poor and uneducated offenders might be punished more severely if they are confronted with articulate victims who demand long sentences. These critics assert that sentencing and parole should be based on an offender’s threat to society and behaviour while in prison, not on a victim’s wishes.

Supporters of these reforms argue that they draw the victim into the criminal justce system in a direct way, thereby providing a new perspective to criminal justice administrators. They also point to the greater degree of satisfaction with the criminal justice system among victims who believe their wishes have been taken into consideration in meting out punishment, arguing that a satisfied victim is more likely to report crime in the prosecution of defendants in the future, and this may help deter crime.

XII. CONCLUSION The criminal justice system would probably function more efficiently if it counseled victims and witnesses and tried to incorporate them more into the processing of defendants. Ultimately, the criminal justice system should achieve an equilibrium of justice for the victims, public and the State, as for well as for the defenders.

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