The judiciary must ensure a fair trial and accept the responsibility for its failure to ensure the expeditious conclusion of a case, a senior criminal lawyer said.
V Sithambaram said this was particularly so when the delay was not caused by the appellant.
“Article 5 (1) of the Federal Constitution guarantees the right to fair trial by an impartial court and a just decision within reasonable time,” he said.
Sithambaram, a former chairman of the Bar Council’s criminal law committee, said this in his commentary on the judgment penned by outgoing Chief Justice Arifin Zakaria in the murder case of R Amathevelli v Public Prosecutor.
This judgment is among the 22 cases delivered by Arifin which have been compiled in a book titled “Justice Above All.”
The book, with commentaries by senior lawyers and retired judges, was launched by Sultan of Perak Sultan Nazrin Muizzuddin Shah last week.
In this case, the housewife was arrested on May 18, 1998, and then charged with the offence. The High Court in Seremban convicted her on Nov 8, 2002.
However, the trial judge only delivered his written grounds on Dec 5, 2007, an inordinate delay of five years from the time of the conviction.
Sithambaram, however, said it must be noted that there had been an undue, unexplained and inordinate delay of nine and a half years from the date Amathevelli was arrested.
Her appeal before the Court of Appeal and Federal Court was disposed of in just over a year.
Before the apex court, her lawyer the late Karpal Singh pursued the argument of the inordinate delay that had prejudiced his client and resulted in a miscarriage of justice.
Arifin, in delivering the judgment in January 2009, had said the three-man bench found no prejudice.
Her conviction was upheld as she led police to recover a gold chain and lockets of the deceased, A Soosaiammah, which were found in a cupboard of her (Amathevelli’s) house.
Sithambaram asked if the Federal Court bench would have come out with the same verdict if Karpal had submitted that there had actually been a delay of more than 10 years by the time it was deliberated by the apex court.
“The overall unconscionable delay should, however, entitle the appellant to an unconditional acquittal,” Sithambaram said.
It is unclear whether Amathevelli was subsequently hanged or if the Negeri Sembilan Pardon’s Board commuted the capital punishment to a jail term.
Sithambaram felt Amathevelli would have suffered prejudice as the trial judge’s recollection of witnesses evidence and demeanour in writing the grounds would have been blurred.
However, he said, Arifin had sent a very serious message to judges that any undue delay in delivering the written judgment was “serious dereliction of duty” and “cannot be condoned”.
“It is heart warming, however, to note that the judiciary under the present chief justice has virtually eliminated such delay.”
Source : V Anbalagan @ FMT Online