Contemporary Malaysia is being challenged with complex legal issues related to integrity and corruption where high-profile individuals are allegedly involved. Many pressing questions are unanswered and inactions are being questioned.

The nation is being tested but the tolerance of society has its limit. Ordinary men and women are questioning and are frustrated at being ignored. The concerns of the ordinary folks need to be addressed urgently and with utmost priority.

Regardless, we have to understand that such cases have to be dealt with professionally by the various actors and agencies in the criminal justice system. Investigations must be conducted professionally adhering to high international standards or benchmarks. The prosecution must act swiftly and prosecute impartially. The judiciary must determine guilt based on facts.

In short, the criminal justice system must act without fear or favour to address all cases regardless of the stature of the individuals involved.

In criminal law, guilt is the state of being responsible for the commission of a criminal act or offence. Legal guilt is entirely externally defined by a court of law. Being ‘guilty’ of a criminal offence means that one has committed an act that violates all the elements of the offence set out by criminal law; that one has committed that violation is determined by a court of law.

So guilt is determined by a court of law that deems that a person is guilty of violating a criminal statute.

Philosophically, guilt in criminal law is a reflection of the functioning of civil society. In civil society, guilt rests fundamentally on the presumption of the exercise of free will. Individuals choose actions and are, therefore, subjected to judgement by the criminal justice system. The criminal justice system then determines the ‘rightness’ or ‘wrongness’ of those actions.

The legal process of determining guilt is more than a factual determination that the defendant murdered, stole, or cheated. It is a legal judgment that the individual is responsible for the criminal act. I

n a civil society, our collective conscience does not allow us to justify punishment where there is no legally determined guilt. Our concept of guilt rests on assumptions that are older than this nation. It posits that a free man confronted with a choice between doing right and wrong, good and bad, chose freely to do wrong.

The repercussion of guilt is dealt with differently by nations around the world. Guilt can sometimes be remedied by punishment, forgiveness, making amends, restitution or sincere remorse (as with restorative justice). Guilt can also be remedied through intellectualisation or cognition (the understanding that the source of the guilty feelings was illogical or irrelevant).

Helping other people can also help relieve the guilt feeling. However, the law does not usually accept an individual’s choice of self-punishment, although some ancient codes do.

Whereas culpability, or being culpable, is a measure of the degree to which a person can be held legally responsible for action and inaction. Culpability marks the dividing line between evil (for which someone may be held legally responsible) and an act of God (for which no human can be held responsible).

Thus, before we convict anyone involved based on unverified evidence and other sources of information, we must allow the criminal justice system to operate independently. The criminal justice system, in turn, must act with utmost urgency especially when dealing with very high-profile cases and not unnecessarily delay investigation, prosecution and conviction or acquittal.

We must remind ourselves that in a civil society like ours, all courts decisions are on legal guilt and not factual guilt. The criminal justice system must be blind to all and protect society form the evil doing of fellow mankind. The apparent contradiction in the way high profile cases have been dealt with has awakened the collective consciousness of this great nation and would be unwise to ignore it.

P SUNDRAMOORTHY is a member of the Research Team on Crime & Policing, School of Social Sciences, Universiti Sains Malaysia.