Court has no power to protect?
by Andy Yong
In a democratic society like ours, the courts supply one of the most prominent mechanisms for protecting the rights and liberties of citizens. Beside having an adjudicatory role and penal function, a court has to apply the law beyond formal rules to principles and doctrines.
A judge has to set out on the task of considering harmony, public interest and the importance of security for every Malaysians. Put simply, a pragmatic rather than dogmatic approach.
A judge should be receptive to the felt necessities to show suppleness of adaptation to the needs of any victim, accused or affected party. Hence, the court has a duty of preventing any criminal acts such as assault, abduction or any form of violence.
The court can issue a warrant of arrest, an order to show cause, an order to prevent obstruction or riot, the list goes on. Ironically a protection order is available to witnesses of a court proceeding, victim of domestic violence, informer, victim of human trafficking but not an accused.
Previously, a reporter was also alleged to be given a 'protection order' under the ISA. It was reported that in the jet engines theft case recently, the accused, N Tharmendran opted to be imprisoned instead of making bail.
He had lodged a police report in relation to several RMAF officers who went to his parents' house in 'an attempt to abduct' him. When he applied for a protection order, the Sessions Court disallowed it by reason of having no jurisdiction to grant the same.
It is a decision that can seriously endanger the victim who trusted the court system to protect him as the law requires. Nothing could be further from reality.
Articles 5(1) and 8(2) of the federal constitution also provide that it is the constitutional duty of the court to ensure equal protection of the law and no person shall be deprived of his life and liberty.
This forms the very basis of our criminal system. Having said that, it must be borne in mind that an accused is also a person.
Nowadays, courts tend to interpret their powers narrowly. In case after case, the courts have declined jurisdiction even though questions of security and safety of an accused are at stake.
Religious conversion of spouses case is another example. Perhaps it is time for the lawmakers to amend or propose laws which will allow the courts to assume jurisdiction over the protection of an accused.
The writer is Gerakan's Legal and Public Complaints Bureau chairperson.
In a democratic society like ours, the courts supply one of the most prominent mechanisms for protecting the rights and liberties of citizens. Beside having an adjudicatory role and penal function, a court has to apply the law beyond formal rules to principles and doctrines.
A judge has to set out on the task of considering harmony, public interest and the importance of security for every Malaysians. Put simply, a pragmatic rather than dogmatic approach.
A judge should be receptive to the felt necessities to show suppleness of adaptation to the needs of any victim, accused or affected party. Hence, the court has a duty of preventing any criminal acts such as assault, abduction or any form of violence.
The court can issue a warrant of arrest, an order to show cause, an order to prevent obstruction or riot, the list goes on. Ironically a protection order is available to witnesses of a court proceeding, victim of domestic violence, informer, victim of human trafficking but not an accused.
Previously, a reporter was also alleged to be given a 'protection order' under the ISA. It was reported that in the jet engines theft case recently, the accused, N Tharmendran opted to be imprisoned instead of making bail.
He had lodged a police report in relation to several RMAF officers who went to his parents' house in 'an attempt to abduct' him. When he applied for a protection order, the Sessions Court disallowed it by reason of having no jurisdiction to grant the same.
It is a decision that can seriously endanger the victim who trusted the court system to protect him as the law requires. Nothing could be further from reality.
Articles 5(1) and 8(2) of the federal constitution also provide that it is the constitutional duty of the court to ensure equal protection of the law and no person shall be deprived of his life and liberty.
This forms the very basis of our criminal system. Having said that, it must be borne in mind that an accused is also a person.
Nowadays, courts tend to interpret their powers narrowly. In case after case, the courts have declined jurisdiction even though questions of security and safety of an accused are at stake.
Religious conversion of spouses case is another example. Perhaps it is time for the lawmakers to amend or propose laws which will allow the courts to assume jurisdiction over the protection of an accused.
The writer is Gerakan's Legal and Public Complaints Bureau chairperson.
Related: -
Ex-Airman Seeks Protection Order | Malaysiakini
19 Jul 2010 ... Like a scene out of a Hollywood thriller, Tharmendran (right) ... This prompted his lead counsel N Surendran and Lateefa Koya to confront one of the officers. "He admitted he was an officer, but denied that he is a witness ... protection order, which will be heard by the Sessions Court at 2pm today. ...
ip-174-142-62-49.static.privatedns.com/.../ex-airman-seeks-protection-order.html - CachedWill we abandon Sgt. Tharmendran to torture by Air Force / prison ...
20 Jul 2010... PJ Sessions Court refused his application for a protection order from the air force. Lead defence counsel N Surendran (left) said Tharmendran requested ... bit ofprotection as we try and get to the bottom of this story. ... As Bumi their rights and privileges are denied and taken away and worse ...
jelas.info/.../will-we-abandon-sgt-tharmendran-to-torture-by-air-force-prison-guards/ - CachedBar Council wants Tharmendran's police reports investigated
21 Jul 2010 ... Tharmendran's counsel N Surendran yesterday accused the federal government of ... in prison when he had in fact appealed to the court for protection,” he said.... “Tharmendran's parents, however, denied knowledge of his ...
freemalaysiatoday.com/.../8219-bar-council-wants-tharmendrans-police-reports-investigated -CachedTharmendran chooses jail to freedom
SHAH ALAM: Legal counsel for former air force sergeant N Tharmendran, ... his bail bond after the court rejected his application for a protection order. ...
www.freemalaysiatoday.com/.../8162-tharmendran-chooses-jail-to-freedom - CachedNational Express Malaysia: Ex-airman back to jail after losing ...
20 Jul 2010 ... PETALING JAYA, July 19 — Former air force sergeant N. Tharmendran is returning to prison today after losing his bid for a court protection ...
national-express-malaysia.blogspot.com/.../ex-airman-back-to-jail-after-losing.html - CachedNational Express Malaysia: Will we abandon Sgt. Tharmendran to ...
21 Jul 2010... the PJ Sessions Court refused his application for a protection order from the air force. Lead defence counsel N Surendran (left) said Tharmendran requested to ... bit ofprotection as we try and get to the bottom of this story. ... Welfare ministry denied welfare. Welfare ministry denied welfare ...
national-express-malaysia.blogspot.com/.../will-we-abandon-sgt-tharmendran-to.html -CachedEx-airman back to jail after losing protection bid - The Malaysian ...
Tharmendran's father N. Nagarajah withdrew his bail on his son's behalf after the ... However,Tharmendran recently denied stealing the fighter jet engines, ... that the court was empowered to grant a protection order to Tharmendran as ...
www.themalaysianinsider.com/.../ex-airman-back-to-jail-after-losing-protection-bid/ - CachedNo Protection Order So Ex-Airman Chooses Jail | Malaysiakini
20 Jul 2010 ... Lead defence counsel N Surendran (left) said Tharmendran requested to ...the court's decision not to grant Tharmendran a protection order, ...
brudirect.com/.../no-protection-order-so-ex-airman-chooses-jail.html - Brunei - Cachedmalaysian air force - Interceder: real time news
... N Tharmendran, which led to him applying to the court for a protection .... Malaysian Air Force (RMAF) Sergeant N. Tharmendran denied today that he ...
interceder.net/i/malaysian-air-force - CachedAnother international infamy for Malaysia « Lim Kit Siang
19 Jul 2010 ... However, Tharmendran recently denied stealing the fighter jet engines, ...twist in the trial of former RMAF sergeant N Tharmendran, ... Surendran decried the court'sdecision not to grant Tharmendran a protection order, ...
blog.limkitsiang.com/.../another-international-infamy-for-malaysia/ - Cached
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