PETALING JAYA: Perlis mufti Datuk Dr Mohd Asri Zainul Abidin, who is also known as Dr Maza, is wrong to say that Muslim lawyers cannot defend “offenders” because it is up to the court to decide who is an offender, say lawyers and a minister.All accused persons have the right to be defended in a court of law, they said.
Malaysian Bar president Karen Cheah said an accused’s right to legal representation of his choice is guaranteed under Article 5(3) of the Federal Constitution.
Access to justice, she said, is an important element in any legal system and a basic human right.
“Without a lawyer, an accused may be at a disadvantage in knowing what to do in court and how to put the best defence forward.
“Lawyers do not prejudge and the burden of proving the guilt of a person lies on the prosecution.
“Lawyers ensure that they keep the prosecution’s case in check so that there are no transgressions, and the evidence presented is done properly in enabling the judge to arrive at a reasoned conclusion,” she explained.
Thus, for such professional services rendered, lawyers have a right to be remunerated just like any other professional services, she said.Cheah was asked to comment on the recent statement by Mohd Asri that Islam forbade Muslim lawyers from knowingly protecting wrongdoers or sinners.
Another lawyer, Nizam Bashir Abdul Kariem Bashir, said the presumption of innocence, subject to some exceptions, exists in Islam and is also part of the Federal Constitution.
He noted that in the Quran, there are prohibitions on defending and supporting those who are wrong but Islam also commands justice and equality.
“Nevertheless, the above must be weighed against the fundamental principle that one is, broadly speaking, presumed to be innocent until proven guilty,” he said.
“While as a lawyer of the Islamic faith I would accord the mufti’s view with respect, I am of the view that a person is presumed to be innocent; a person is entitled to legal representation; and the burden remains on the person making the claim,” said Nizam Bashir.
Lawyer Siti Kasim noted that defence lawyers are not mouthpieces of the accused but uphold a sacred duty to ensure that justice is done and due process is carried out.
“They have to make sure all available evidence and arguments are put before the judge, and tested through rigorous questioning.
“Remember, we go by the rule that whenever someone does something that we condemn, no matter what it is, he still gets one person to speak up for him.
“Take away this protection and all our other democratic rights which are so carefully woven into the constitutional design of our country, will become meaningless,” she said in a statement.
Constitutional expert Syahredzan Johan said the lawyer for the accused in court is not “defending the guilty person”, but is allowing an accused person to defend himself against the charges.
“It is the court that decides wrong or not, not the lawyer.
“The accused has the right to be represented by a lawyer, and has the right to defend himself.
“This should be the principle held by the lawyer representing the accused in a criminal case,” the lawyer said in a series of tweets.
Minister in the Prime Minister’s Department Datuk Seri Dr Wan Junaidi Tuanku Jaafar said if it was sinful for lawyers to receive payments from those who had committed crimes, then there would be no Malay Muslim lawyers in the country.
Speaking to reporters on Wednesday, Wan Junaidi also said under the rule of law, an individual was considered innocent until proven guilty.
On April 19, Mohd Asri was reported saying it was a sin if a lawyer knowingly defended a guilty party and that the sin of taking payment from the offender was worse than money gained from prostitution.The Perlis mufti was answering questions by lawyers who said they had sometimes defended cases where they knew their clients were in the wrong.