Statute and Victim

In Malaysia, there is no legislation that specifically regulates victims’ rights.
In Criminal Procedure Code (ACT 593) there are several provisions which regulate payment of compensation towards victim.
Section 426 stated that:
(1) The Court before which a person is convicted of any crime or offence may, in its discretion, make either or both of the following orders against him, namely:
(a) an order for the payment by him of the costs of his prosecution or such part of it as the Court directs;
(b) an order for the payment by him of a sum to be fixed by the Court by way of compensation to any person, or to the representatives of any person, injured in respect of his person, character or property by the crime or offence for which the sentence is passed.
(2) The Court shall specify the person to whom any sum in respect of costs or compensation as aforesaid is to be paid, and section 432 [except paragraph (1)(d)] shall be applicable to any order made under this section.
According to case Yakman bin Mohamed Tahir & Another v The Public Prosecutor of Johore [1940] 1 MLJ 196:
Section 426 of the Criminal Procedure Code gives power to order compensation or costs to the complainant in addition to any other punishment and applies the provisions of Section 432 to any order made there under, with the exception of para (d) of sub-section (i) of Section 432.
Section 432 provides for the manner in which the order under section 426 can be made:
(1) Subject to the provisions of this Code where any person is, under this Code, for any reason whatsoever, ordered to pay any sum of money by way of costs or compensation, the Court making the order may in its discretion do all or any of the following things, namely-
(a) allow time for the payment of that sum;
(b) direct payment of that sum to be made by installments;
(c) issue a warrant for the levy of that sum by distress and sale of any property belonging to that person;
(d) direct that in default of payment or of a sufficient distress to satisfy such sum, that person shall suffer imprisonment for a certain term, which imprisonment shall be in excess of any other imprisonment to which he may be sentenced or to which he may be liable under a commutation of sentence:
Provided that where time is not allowed for the payment of that sum an order for imprisonment in default of payment shall not be issued in the first instance unless it appears to the Court that that person has no property or insufficient property to satisfy the money payable or that the levy of distress will be more injurious to him or his family than imprisonment;
However, according to Section 426(2) it is apparent that the provisions of Section 432 (1) (d) do not apply to an order for compensation made under Section 426, though the remaining provisions of Section 432 do apply. Thus, in Yakman bin Mohamed Tahir & Another v The Public Prosecutor of Johore [1940] 1 MLJ 196, Laville J held that, an order for imprisonment in default of payment of compensation ordered under that section, is ultra vires and cannot stand. The result is that no order for imprisonment in default of payment of compensation ordered under Section 426 can be made under Section 432 at all, and there appear to be no other provisions under which an order for imprisonment can be made in such case.
Section 427 provides for payment of expenses of prosecutors and witnesses:
In every criminal case tried before the High Court, and in every criminal case tried before a Sessions Court or a Magistrate's Court, the Court may in its discretion order payment out of the Consolidated Fund to the prosecutor and to the witnesses both for the prosecution and for the defence, or to such of them as it thinks fit, of the expenses incurred by them severally in and about attending the High Court, or the Sessions Court or Magistrate's Court and also compensation for their trouble and loss of time, subject to such rules as are prescribed.

Nevertheless, decision to claim compensation under the above sections is on the Public Prosecutor who decides on the charge and conducts of the case (Salim Ali Farrar, 2008). He believes that:
Although private prosecution does exist for minor offences (sections 108 and 128 of the Criminal Procedure Code), in practice prosecution is a state monopoly. Hence, neither victims nor offenders have any say in whether to bring charges of to adjust their content (p. 305).
This was illustrated in the Federal Court case of Long Bin Samat & Ors v Public Prosecutor where it was discussed that:
Clause (3) of Article 145 clearly gives the Attorney General very wide discretion over the control and direction of all criminal prosecutions. Not only he may institute and conduct any proceedings for an offence, he may also discontinue criminal proceedings that he has instituted…..Anyone, who is dissatisfied with the Attorney General’s decision not to prosecute, or not to go on with a prosecution or his decision to prefer a charge for a less serious offence when there is evidence of a more serious offence which should be tried in a higher court, should seek his remedy elsewhere, but not in the courts.

The above problems are not an issue in Islamic criminal justice system because the shariah protects the victim in the concept of Qisas. In this system, after the decision of qisas is awarded or conviction is made, the judge has no absolute right to make his further decision because it is subject to the right of wali (the next of kin). Wali shall have the right to demand qisas to be executed by the state or by himself, to pardon the offender altogether, to demand diyat (blood money) instead. In cases where the victim is alive, he shall demand such rights by himself (Hamid Jusoh, 2007).
On the other hand, Domestic Violence Act 1994 and Child Act 2001 govern victims’ rights for specific offences such as domestic violence and child abuse (Mohd Najid Bin Husain, 2008).
However with regards to statement by children, s. 133A of the Evidence Act provides that when evidence is given by a child on behalf of the prosecution, the accused shall not be liable to be convicted of the offence unless such evidence is corroborated by some other material evidence (Mohammad Akram, 1996). The very basis of the need of the corroborative evidence is based on the common belief of adults that children being children are less reliable as witnesses. On the contrary, researches show that regardless of a person’s age, memory is not entirely accurate (Abu Bakar Munir, 1991).
With regards to the right to be informed, Sanders (2002) found that “20 percent of victims found the information they had been given not useful at all” (p. 214). This is because the information was not further explained by the police to the victims since the police are a mere messenger for the decision made by the judiciary. Had the CJS been more sensitive towards the victim, it would have had included a simple reasons for the decision along with the information given out to the victim. In Malaysia, the victims were rarely given any information at all.
Regarding other promising rights listed above, the laws in Netherlands, America,
West Germany and France are not available in many other CJS in the world including Malaysia.
Other possible rights are the basic rights in the European Convention of Human Rights (ECHR). As a human being the victim should be entitled to any rights under the ECHR just like the accused. Unfortunately, Rock (2004) established that the European Convention was created only to protect European from ‘the crimes against humanity of the kind inflicted by totalitarian States in the 1930s and 1940s (p.232)’ as a respond to the effect of the Second World War. Therefore, ‘the Convention and the Act had not been framed directly to protect the rights of the victims of everyday offences, the robberies, burglaries, thefts, and assaults committed by citizen on citizen (p. 233)’ because the Convention originally viewed that only the State can be the perpetrator. Hence, it will be difficult for victims to claim his rights under the ECHR since he must be a victim of crime committed by the State against that victim. This is why only the accused may claim for breach of human rights by the State in prosecuting such accused. This goes to show that while the accused enjoyed the benefit of human rights in the criminal justice system, the victim did not and was oppressed by it when such rights exercised by the accused against the victim’s case. By analogy, the ECHR itself forgot to protect the victims of crimes as human beings.
Apart from the above there exist many other problems that tamper with existing rights of the victim. Davies (2007) had identified that among the problems in the administration of justice for victim is institutionalized racism which means that there was suspicion by the police that the victim might actually be the offender just because such victim is a black person which leads to prejudice treatment by the police towards the victim. In other words racism could be a factor leading to neglect of victims’ existing rights in any CJS. Due to the many tribulations on victims’ rights, Karmen (1990) concludes that:
The consensus among experts is that the criminal justice system does not measure up to expectations. It fails to deliver what it promises. It does not meet the needs and wants of victims as its “clients,” or as “consumers” of its services (p. 156).

Indeed it is disheartening to see that even when victims do have rights, such rights cannot be exercised in its entirety. Prompt actions should be taken to repair the weaknesses of existing rights of victims to avoid further victimization. Whenever any relevant rights are created in other countries’ CJS it should be adopted into the CJS that does not have it to fortify every CJS in the world. This is because victimization is a universal predicament.

ACTION-GAZA: Can You Spare 60 Minutes? Can You Walk the Talk?

Brought to you by MuslimMatters.org (www.tinyurl.com/action-gaza)


Bismillah, before continuing, please check all pessimism at the gate, otherwise don’t read any further.

Feel free to use this post, in part or entirety, and circulate as much as possible. Copyright rules are waived for it.

FAMILIARIZE : Familiarize yourself with the Gaza situation, if you are not already. We have compiled a list of action-items (many from readers' comments) into one list that, inshaAllah, will empower us all. Now, it's time to do something.

This is OUR 60-90 minutes action-guide that WE should go through at least once.
Repeat one or more of the actions as often as you are able to. Do as much as you can, whenever you can.
NO ACTION IS INSIGNIFICANT.
OUR 60-Minute Action-Gaza Plan (one-time, not daily):

1. MAKE Du'a | 10 minutes | REPEAT Everyday
Print out the dua’s listed here: http://tinyurl.com/gaza-dua and post it on your fridge or any other prominent location. Read the du'as now and move on.

2. DONATE | 10 minutes |
Make a donation. Every one of you can make a small donation, even if it is $5. CAN WE MEET A TARGET OF $10,000 SET FOR MM??
• Islamic Relief USA
http://www.irw.org/campaigns/palestinecrisis08
• KinderUSA
http://www.kinderusa.org/index.php?option=com_content&task=view&id=79&Itemid=2
• Palestine Children’s Relief Fund
http://www.pcrf.net/can/can2.html
• American Near East Refugee Aid
https://secure2.convio.net/anera/site/Donation2?df_id=1280&1280.donation=form1

3. JOIN MM's new DIGG Club on FACEBOOK | 5 minutes |
This is a means to increase the power of the word-of-mouth for important news articles or analysis:
• Learn about these tools: http://tinyurl.com/mm-digg.
• Join the new FB group by going to this link: http://tinyurl.com/digg-fb
(make sure you ONLY join if you are COMMITTED to spending 5 minutes maximum per day).

• Here's how it will work:

As soon as there is a significant/fair article brought to our attention, we will send a message on FB to the entire group.

All members of the group are required to do their part: to DIGG, SU, Reddit, whatever, within 48 hours of receiving notice (it takes only 1 minute to do it).

You have suddenly become part of blitzing truth over falsehood.

4. CALL GAZA | {OPTIONAL}
• Call any random number in Gaza, and tell them that you are calling from North America (or wherever you are), make Duaa for them and tell them all their brothers and sisters around the world are with them; this will give them moral support and courage ! How to call? > Very simple!
• Dial any of these number and replace the last 4 digits by any random ones, try 4 or 5 times and you'll reach a family insha'Allah ! Even if you don't speak Arabic, talk to them with very slow and simple English
(011)9728284-XXXX (011)9728282-XXXX (011)9728255-XXXX

5. SIGN PETITION | 2 MINUTES
• CAIR has launched an online petition drive to collect one million signatures. Be part of it by clicking here. http://petition.cair.com/

6. WRITE a Letter to the Editor | 20-50 minutes | REPEAT for other newspapers
Letters to editor is the most-read section in the entire newspaper, and is read by local leaders as a means of keeping up with the pulse of the community.
• Write a letter to your local newspaper (you can find it from the list here). You have a better chance of getting published than writing to one of the national newspapers.
• Consider these guidelines to increase your chance of getting published. The most important point: Make ONE point, even if you have a hundred swarming in your head. Be very succinct and add some “color” or “reasoned emotion”, it may increase your chance of getting published.

7. CIRCULATE | (EXTRA BONUS AJAR):
• Cross-post on your blog. Email it. Post to your facebook profile.
• Print out this hard-copy of this "Action-Gaza", make copies and distribute.

Talking Points for Letters to Editor & Congressional Representative
[remember keep scope of letter limited]:

1. President Bush and Secretary Rice should exert diplomatic pressure to immediately re-instate a ceasefire. Israel's military assault is disproportionate, inhumane, and immoral. U.S. is the only country that can effectively halt this violence.

2. All human life is sacred. Israel must stop its collective punishment of Palestinians, and allow critically needed medical supplies and food to be delivered to the residents of Gaza.

3. The Gaza Strip is smaller than the Isle of Wight, but it is crammed with 1.5 million people who can never leave. \ When bombs begin to fall -- as they are doing now with more deadly force than on any day since 1967 -- there is nowhere to hide.

4. The Israeli government did indeed withdraw from the Gaza Strip in 2005 - in order to be able to intensify control of the West Bank. Ariel Sharon's senior advisor Dov Weisglass was unequivocal about this, explaining: "The disengagement [from Gaza] is actually formaldehyde. It supplies the amount of formaldehyde that's necessary so that there will not be a political process"

5. The election of Hamas was in a free and democratic election, and it was not a rejection of a two-state solution. Rather than seize this opportunity and test their sincerity, the Israeli government reacted by punishing the entire civilian population. They announced they were blockading the Gaza Strip in order to "pressure" its people to reverse the democratic process.

6. According to Oxfam, this November only 137 trucks of food were allowed into Gaza this November - to feed 1.5 million people. The UN says poverty has reached an "unprecedented level."

7. It was in this context - under collective punishment designed to topple a democracy - that some forces within Gaza did something immoral: they fired Qassam rockets indiscriminately at Israeli cities. These rockets have killed 16 ordinary Israeli citizens. This is abhorrent: targeting civilians is always murder. But it is hypocritical for the Israeli government to claim now to speak out for the safety of civilians when they have been terrorizing civilians as a matter of state policy.

8. Israel had failed to abide by the terms of the cease-fire. For the overwhelming majority of the six-month truce, Israel had refused to ease its military blockade of Gaza to any significant degree. In addition, it was the initial violator of the cease-fire
when it sent tanks and aircraft into Gaza and killed six Palestinians on 11/4/2008.

9. Hamas leader in Gaza, Ismail Haniyeh, said in November that his government was willing to accept a Palestinian state alongside Israel within the 1967 borders. Haaretz Israel News, Nov. 9, 2008

10. Institutions of higher learning are supposed to serve the needs of their countries and are also supposed to be a place where diverse views are debated. The indiscriminate bombing of this university simply cannot be justified

More Talking-points Can be Found Here:
• Gaza University Destroyed, Professor Rayyan & Family Murdered: Are Some Freedoms More Sacred Than Others? http://tinyurl.com/gaza-univ
• Israel’s Lie Machine is Working Flat Out by Stuart Littlewood [Must-Read]
http://www.middle-east-online.com/english/?id=29449
• The True Story Behind This War is Not the One Israel is Telling by Johann Hari
http://www.huffingtonpost.com/johann-hari/the-true-story-behind-thi_b_153825.html
• The Facts about Israel’s War on Gaza [Separate Facts from Fiction] http://tinyurl.com/gaza-facts-sheets

Criminal Justice System and the Victim (Draft of introduction)

Macmillan English Dictionary (2002) defined victim as “someone who has been harmed, injured, or killed as the result of a crime” and “someone who has been affected by a bad situation such as accident or illness” (p.1595). In the legal context, the word victim is generally applicable in criminal law. In other legal areas, the synonym of victim could be plaintiff or petitioner.
Stark & Goldstein (1985) defined victim as anyone who suffers loss or injury as the result of an act that constitutes a crime…This includes individuals, as well as corporations, relatives, and dependents of persons who themselves are injured or killed during the course of a crime and even Good Samaritans who may be harmed during the act of preventing the perpetrator from leaving the scene (p.11). Thus, victim is one who suffers from criminal behavior. Such victims shall include a person who directly suffers the crime and their next of kin.
The relationship between victim and crime necessitates their entrance into the criminal justice system (CJS). The criminal justice is the system of practices, and organisations, used by national and local governments, directed at maintaining social control, deter and controlling crime, and sanctioning those who violate laws with criminal penalties. The subject of criminal justice is, of course, primarily concerned with the enforcement of criminal law.
Koh, Clarkson and Morgan (1989) stated that the criminal law could be loosely defined as a body of rules prohibiting certain conduct on pain of punishment. The essence of the criminal law is that when it is alleged that someone has committed the prohibited act it must be established, using rules of criminal procedure designed to ensure fairness to the accused, that he did not commit the alleged act or cause the forbidden harm and had no legally recognized excused or justification for what he did. Once liability is established the accused becomes liable to punishment by the state, the type and level of such punishment varying with the seriousness of the crime committed (p.15).
Based on the above definition of criminal law, a victim is not a party to a criminal proceeding and lack legal standing (locus standi) to be heard with respect to prosecutorial decision. In other words, the victims’ legal status is neglected, insufficiently protected, and their position are passive and weak. They were the forgotten actors in the criminal justice system. They were only regarded in extracting evidence admissible in court. The wrong committed by the accused is viewed as a social wrong and not a wrong against the victim. The victim has little input in the judgment of the court and seems to have little knowledge or comprehension of what is happening in their case (Stark & Goldstein, 1985; Schneider, 1982; Davies, 2007; Sanders, 2002).
Therefore, in CJS the victim is at best, a mere witness or object. According to Sanders (2002) and true to the definition of criminal law, the “police and prosecution do not prosecute ‘for’ victim but rather prosecute for the state… Victims are simply citizens who may or may not be used as witnesses, which is again a matter wholly for the prosecution” (p. 201) to decide.
Closer at home, there is no specific legislation governing victims’ rights in Malaysia. In Criminal Procedure Code there are several sections which regulate payment of compensation towards victim. On the other hand, Domestic Violence Act 1994 and Child Act 2001 govern victims’ rights for specific offences such as domestic violence and child abuse. Whereas, in Penal Code there are twenty chapters that list down various offences. This truly reflect that the above discussion represent the status of victim from the most advanced nation to advancing nation like Malaysia.
Consequently, this paper decides that the criminal justice system disregard victims’ rights because it forbade direct participation of victim in the proceeding, neglect existing rights of the victims and provide inadequate governing laws on victims’ rights

Welcoming IIUM ADR Society blog

I would like to use this opportunity to congratulate whom it may concern on the publishing of the ADR blog:
ADR Society, IIUM
iiumadrsociety.blogspot.com

The Malaysian Tribunal for Consumer Claims as Alternative Disputes Resolution.

Generally, the function of adjudicating disputes belongs to the court. However, the expansion in the functions and responsibilities of the administration and the need of an expert to deal with specific area of administration has put an end to the monopolization of courts as sole adjudicatory body and give rise to administrative adjudication. As the result, adjudication became a power exercised by the administrative bodies in its quasi-judicial capacity. Tribunal is adjudicatory body established to exercise this quasi-judicial function. Tribunal has been recognized as a method of alternative dispute resolution (ADR) such as arbitration, negotiation, mediation and the ombudsman.[1]

Tribunal does not only exist through a particular statute. It may also be established under constitution i.e. Judge Tribunal (Article 125) and Land’s Tribunal (Article 85). There is also domestic tribunal that was established under a constitution of a particular organization, for example, tribunal established under University Malaya Act. However the main focus of this writing is statutory tribunal namely the tribunal for consumer claims (TTPM). It is a statutory tribunal because it was established under a statute i.e. Consumer Protection Act 1999 (CPA) and its jurisdiction is confined to the matters that are prescribed by such statute. The original or initial function of TTPM is hearing and determining claims lodged by consumers under the CPA. A consumer[2] can lodge a claim with the Tribunal claiming for any lost suffered on any matter concerning his interests as a consumer under this Act.

The primary objective of establishing the tribunal is to provide an alternative channel of facility, apart from the courts, for a consumer to claim for any loss suffered (in respect of any goods or services purchased or acquired) in a less cumbersome and speedy manner and at minimal cost[3]. Before the establishment of the Tribunal, all disputes between a consumer and a supplier or manufacturer had to be brought before a civil court which often involves complicated procedures, high costs and is time consuming.

According to section 86(1) of the CPA, the appointment of members of the tribunal is by the Minister. The members must be legal practitioners or persons who have held government positions equivalent to first class or second class magistrates such as State Secretaries and Under Secretaries[4]. The Tribunal and its authorized personnel enjoy legal immunity in the performance of its official duties. According to s. 121, no action or suit can be instituted or maintained in any court against the Tribunal, its members or a person authorized to act for or on its behalf “for any act or omission done in good faith” under the Act[5].

In harmony with the spirit of ADR, the tribunal will adopt procedure akin to the court of law however it is not subject to rigidity as practiced in the court of law. Nevertheless, the tribunal must comply with the rules of natural justice i.e. right of hearing, rule against bias and reasoned decision. The procedure in TTPM are provided in Part XII of the CPA as well as the Consumer Protection (The Tribunal for Consumer Claims) Regulations 1999 which were made by the Minister pursuant to Section 122 of the Act. Subject to this Act and the Regulations mentioned above, the Tribunal shall adopt such procedure as it thinks fit and proper[6]. The tribunal is also not bound by precedent developed in the court of law. Furthermore, according to section 108 no party shall be represented by an advocate or solicitor during a hearing before the Tribunal and each party to a hearing shall conduct its own case at such hearing.

In the spirit of natural justice, the tribunal practiced reasoned decision. The decision of tribunal is known as award. Section 114 stated that the tribunal in all its proceedings shall give the reasons for its award. However, the Tribunal unlike ordinary courts is not enjoined by law to deliver written reasons. It was held in Hazlinda bte Hamzah v Kumon Method of Learning Centre[7] that ‘the section does not say that the reasons must be in writing. Nor does it fix any time limit for the delivery of reasons. Having regards to the general scheme of the Act, it is sufficient if the tribunal gives oral reasons.

An award (and every agreed settlement recorded by the Tribunal) is final and binding on all parties to the proceeding. It is deemed to be an order of Magistrate’s Court and enforceable accordingly. To enforce the award in the Magistrate Court, the Secretary to the Tribunal is required to send a copy of the award to the Magistrate Court having jurisdiction in the place to which the award relates or in the place where the award was made. The Magistrate Court will cause the copy to be recorded[8].

It will be against the spirit of the ADR if every decision of the tribunal is subject to judicial review and the courts had agreed with this concept. Gopal Sri Ram JCA in Hazlinda bte Hamzah v Kumon Method of Learning Centre[9] said that “being a specialist body, the tribunal has been conferred with extraordinary powers to do speedy justice for consumers. As such, its awards should not be struck down save in the rarest of cases, where it has misinterpreted some provision of the Act in such a way to produce an injustice”.

To conclude, perhaps it is significant to quote Gopal Sri Ram JCA in Hazlinda bte Hamzah v Kumon Method of Learning Centre[10]:

“The jurisdiction of the Tribunal is limited to hearing claims not exceeding RM25,000 ( s 98) and proceedings before it are commenced by lodging a claim with it in the prescribed form ( s 97) within three years of the claim accruing ( s 99(2)). Parties are entitled to attend and be heard (s 108(1)) but are not entitled to legal representation (s 108(2)). The Act in s 109 requires the hearings of the Tribunal to be open to the public and by s 110 empowers the Tribunal to take evidence and 'to generally direct and do all such things as may be necessary or expedient for the expeditious determination of the claim’ … s 112(1) of the Act requires the Tribunal to make its award 'without delay and, where practicable, within sixty days from the first day the hearing before the Tribunal commences'. The Tribunal has very wide powers. These are to be found in s 112(2) which, among other things, enables the Tribunal to direct the payment of money or to direct the refund of the consideration paid for goods or services or to direct payment of compensation or to vary or set aside a contract wholly or in part. Its powers are exercisable even in the event that the party complained against fails to appear at the hearing (see s 111 of the Act.)….”

---

[1] Consumer Redress Mechanism in Malaysia: Prospects and Challenges, Assoc. Prof. Dr. Naemah Amin, (2007) 15 IIUMLJ 231, page

[2] The term ‘consumer’ means a person who : a) acquires or uses goods or services of a kind ordinarily acquired for personal, domestic or household purpose, use or consumption; and b) does not acquire or use the goods or services, or hold himself out as acquiring or using the goods or services, primarily for the purpose business

[3] TTPM Handbook Published by Tribunal for Consumer Claims Malaysia, November 2006.

[4] Wu Min Aun, Consumer Protection Act 1999: Supply of Goods and Services, 2000, Pearson Education Malaysia Sdn. Bhd, Petaling Jaya, page 81.

[5] Ibid, page 81.

[6] TTPM Handbook Published by Tribunal for Consumer Claims Malaysia, November 2006

[7] [2006] 3 MLJ 124

[8] Wu Min Aun, Consumer Protection Act 1999: Supply of Goods and Services, 2000, Pearson Education Malaysia Sdn. Bhd, Petaling Jaya, page 86.

[9] [2006] 3 MLJ 124

[10] Ibid.

s as Alternative Disputes Resolution.