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Thursday, August 26, 2010

FEAR FACTOR




It is a tough job being a prosecutor. I bet most of us can comfortably sit on the bench (sorry to say) but maybe just a few can withstand the rigorous, challenging and scary position way down from the bench; that is as a prosecutor. Feeling so small in the cold court room, up against senior and uncompromising lawyers, receiving tongue-lashing from hot-headed judges; all of these are surely not for a faint-hearted. I relish my time being a prosecutor. It taught me a lot; be it from the legal aspect or your perception in life.For me, any prosecutor can succeed provided he can manage his fear. After all, we as officers of the court are always reminded to carry out our duty without fear or favor.

To be frank, fear is needed to a certain extent. It ensures that you are always ever-ready for the trial, do necessary homework and as a result you will minimize your mistakes in the trial proper as well as avoid blunders. Nevertheless; unnecessary fear will add extra pressure to the prosecutor. The latest fear to strike is of course the KPI. I am still of the view that the way KPI is implemented is bringing more harm than good. It definitely erodes common sense and judicial discretion among judges. Cases proceed without the defense counsel, without the accused and without the witness (DPP forced to close case). If someone can tell me a case can be proceeded without the judge; then I will be the number one supporter of the KPI menace.

Back to prosecutors; I personally observe some element of fear in conducting a trial that are unnecessary and uncalled for. For instance, examining a witness in a lengthy fashion until it become too detail and risking to be overdoing it. That's why we can see witnesses are asked in detail what they do, what they eat, when they sleep etc etc etc. Take an IO for instance; examining an IO is fast becoming a retrial as the IO will narrate everything that has been testified by all witnesses. The reason for being so watertight is; the fear that they will be accused of not carrying out their duty completely. Hence, throw everything to avoid that and "langgar saja".

I appreciate there are as if 2 school of thoughts in prosecution; first is what I call as touch and go type. Witnesses are asked only pertinent questions, explanations are reserved only in re- examination and unless the counsel raised an issue; there's no need to ask more than necessary. After all; less is more. On the other hand; there's another type who is too meticulous and doing all the re-examination in examination in chief. In a layman's term; "tutup semua lubang siap-siap". Take tendering documents for instance; all the marking and signatures on it will be marked e.g P1A, P1B, P1C until something like P1K.

But hey dear prosecutors; a quality trial is not measured by how many witnesses you call or how long you manage to confine him in the witness dock. I even encounter a few DPPs who purposely or otherwise asking irrelevant questions and repeating witnesses' answers in subsequent questions; just to buy time. Reason being; fear again of being ticked off by the judge if let say there's no more witness to be called for the day and thus wasting precious judicial time (as if everyone's else time is not that precious). But, shouldn't the DPP be praised instead for being efficient and fast in conducting cases?

Let's take another example where fear is gripping unnecessarily again. Recently, there's tendency to call every witness involved in a case to testify. I have a case where a DPP wants to call 4 doctors and 3 of them only took samples and the defense never challenge the identity of the samples. When I propose that the 3 doctors to be offered to the defense; the DPP told that we have to record first that the defense has no objection to it. From my little knowledge; was it prosecution's right to call anyone as witness? Why should there be fear the defense will ambush you in submission, if you are confident enough in your case. After all that's why you preferred a charge to a suspect.

Don't get me wrong. I am quit frank when I say that I observe some new DPP's are conducting the trial as if they are in fear. It happens a lot in lower courts and it is sad to see these aspiring new officers being bullied by irresponsible parties; be it lawyers or the court itself. Prosecutors should be strong, firm and confident. Of course it takes time to be one but I'm confident if DPP's especially new ones strive everyday to carry out their duty without fear; they will gain respect in no time. Wassalam.

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