You have to begin with a premise. Destroy a reputation, totally. How? Use abuse of men, women and power, add in a dash of corruption but thankfully no wine, no song. And there you have it! Perfect!

Episode 1: The purported men Munawar/Sukma

  1. Dr Munawar Ahmad Anees and Sukma Darmawan Sasmitaat Madja were purportedly arrested under the Internal Security Act, turned over, then released and immediately rearrested, detained for a further day and then charged under section 377D of the Penal Code. This was tantamount to charging the victim and not the assailant. The purported assailant was at that time still free and very much around.

  • There was no 'investigation' as such. The entire prosecution case was founded on purported police interrogations of Munawar/Sukma and nothing more.

  • The charge sheet concealed the original date of arrest and had no complainant [the arresting officer was slotted in as the complainant]. In a typical sexual accusation the victim is the complainant. That was certainly not the case here.

  • The charge was vague and omitted material particulars.

  • The offence was one that came within the jurisdiction of the Magistrates Courts but the prosecution went forum shopping and registered the matters in the Sessions Court. Amazingly two supposedly independent courts displayed great consistency in handing down exactly similar sentences of six months imprisonment.

  • The matters were completed with great speed and maximum publicity yet both Sessions judges saw no reason to consider the state of the accused. In Munawar's case he was seen visibly trembling in court when the proceedings were underway.

  • The prosecution came ready prepared to receive pleas of guilt.

  • Defence counsel, not appointed by the accused, came ready with pleas in mitigation. Typed, to say the least. Where did these lawyers come from? In Munawar's case the lawyer appointed by the family was turned away by the police and refused access to his client. Typically where the police keep lawyers away from arrested persons, here the police went out of the way to find two user-friendly lawyers and provide them clients, ready-made pleas of guilty and facilities to boot.

  • Defence counsel went to town in the prepared mitigation pleas and coloured their pleas with 'admissions' of offences that were not even before the court but were being advanced for the benefit of the waiting press. Consistency requires juicy details from the prosecution. Here the user-friendly lawyers undertook the task. The judges 'played' along. Sukma's lawyer even 'conveniently' tendered a confession during his mitigation.

  • The mitigation 'qualified' the pleas. The judges turned a blind eye to this. Consider a rape victim pleading that she was raped against her will. Consistency requires the guilty pleas to be rejected and the matter to be set down for trial. That would have defeated the police machinations being undertaken. However inconsistency ruled the day and qualified pleas were conveniently overlooked. The alternative to that would have been cases literally beyond proof.

  • Consistency demanded that the accused be left alone to pursue his legal remedies after the Sessions Court fiasco. Inconsistency enabled the police and the user-friendly lawyer to attempt to hound Munawar into not challenging or exposing the lies.

    • Episode 2: The purported women Nallakaruppan

    1. A simple licensing offence turned on its head and conveniently slotted under the ISA and warranting the death sentence for S Nallakaruppan.

  • Consistency warranted a prosecution under arms licensing provisions, like for like. Inconsistency and mala fide by the attorney-general resulted in the ISA prosecution.

  • Consistency would have justified a bailable offence. Inconsistency enabled continued detention and attempts to interrogate/extort non-existent evidence.

  • Consistency required remand in a prison. Inconsistency ensured continued detention in the hands of the interrogators when they moved him out of the prison back to the police headquarters.

  • Consistency permitted no abuse of the prosecution process to justify spurious ends. Inconsistency permitted a blatant open attempt by the attorney-general's office to bargain with the life of a man in exchange for non-existent evidence concerning women that would have helped along the destruction of a reputation.

  • Consistency demanded that in any prosecution launched there be credible evidence before commencement. Inconsistency enabled vague 'fishing' expeditions to secure evidence.

  • Consistency demanded honorable conduct in court. Inconsistency permitted the release of vague, unfounded allegations against a person not present to defend himself and the post haste release of information to the media to blacken reputations.

  • If you recollect on the day that Nallakruppan was challenging his transfer back from the prison into the hands of the police, the AG's officers were busy releasing affidavits founded on supposition and hearsay against Anwar to the press with such impeccable timing that it appeared in that very day's Malay Mail while arguments were still going on in court. The judge inconsistently refused even a temporary gag on the publication of totally unsubstantiated material. As events turned out those unfounded allegations remained unfounded.

  • Consistency ensures that legal rights are never compromised and that a right of appeal is an inviolable right. Inconsistency was a demand that there be no appeal.

  • Consistency demanded, in the light of established precedents, a fine for what was at worst a licensing offence. Inconsistency ensured a totally unjustified 36-month imprisonment term.

    • Episode 3: The purported corruption Anwar/Zainur

    1. Pre-trial consistency stipulated a just, fair and equal treatment. Inconsistency enabled a departure from basic rights and an open blatant abuse of them.

  • Consistency demanded an even-handed fair trial. Inconsistency ensured an unusual heavy-handed approach by the judge that consistently and constantly brought him down into the arena of the adjudicative conflict being played out before him.

  • Consistency justified bail but inconsistency ensured refusal on both dubious and spurious grounds.

  • Precedent guaranteed the accused's right to raise every possible and conceivable defence. Inconsistency resulted in a denial of this right and the convenient expunging of evidence received on oath that was central and vital to the defence case.

  • Consistency demanded, in the criminal justice system, that the benefit of all doubts flow to an accused. Inconsistency enabled S Augustine Paul to found a judgment on a misconception of facts and draw negative personal conclusions where the facts indicated otherwise.

  • Inconsistency enabled:

  • Demands that the defence state beforehand the evidence to be adduced through defence witnesses even before they testified.

  • The rejection of witnesses and their testimony even before it had been heard;

  • The citing and threatening of defence lawyers with contempt including the sentencing of Zainur Zakaria to three months imprisonment.

    • An overview: the need for consistency

    If justice is to be dispensed even-handedly, similar cases must be dealt with and decided similarly. Inconsistency ensures abuse.

    Ad hoc decisions that yield unexplained verdicts reflect the self-contained values our judicial system embraces. But appellate adjudication performs a different function and creates different expectations. The core function of appellate courts is to assure that legal principles derived from the Constitution and the general body of statutes and the common law are applied correctly and consistently.

    The doctrine of precedent requires that a prior decision be followed in subsequent cases unless it is distinguished or overruled. The application of the doctrine usually turns on a determination of the identity between two cases a determination that cannot be made unless the facts and reasoning of the prior case are known.

    The core values that need to be preserved are stability, certainty, predictability, consistency, and fidelity to authority.

    And transparency must exist because such publication furthers an important institutional goal: maintaining the appearance that justice has been done. Publication is a signal to litigants and observers that court has nothing to hide, that the quality of its work in a case and of those who participated in the entire adjudicative process is open for public inspection.

    Consistency is a quality control mechanism, raising all error for discussion and correction. It guarantees a consistent level of quality, consistency or reasoning in the law and application of the law.

    It guarantees that all judges, prosecutors and lawyers will meet the standards of the most conscientious of their brethren. As such, it raises the quality of law and judicial functions.

    Public awareness of the doctrine encourages the continual inspection of the law and participation in the legal process by the public.

    Conversely, its erosion will create chaos. It robs even experienced lawyers of the ability to predict with reasonable certainty the outcome of litigation. This inevitably raises the cost of the legal system and lowers its legitimacy.

    Erosion of consistency creates random results that inundate the appellate courts. Citation of unpublished cases, conversely, would permit lower courts (and potential litigants themselves) to have access to precedents that would clearly decide cases or head off litigation.

    Lack of transparency and non-publication diminishes the doctrine twice: first, the decision itself is freed from the responsibility to reason within the full view. Second, an increment of precedent is rendered unusable.

    The doctrine of consistency cannot operate as a workable doctrine as long the courts, the prosecution and the Bar while adjudicating sets of identical facts, are able to act in and reach directly contrary results on diametrically opposed legal theories, by the simple expedient of acting arbitrarily and without regard to the integrity of the rule of law.

    So, yes, consistency is a virtue. If nothing else you can at least set your legal clock by it. The point is that consistency is, and must be seen to be, a tool to achieve the ends of justice, it is not an end in itself.

    Simply put, if we all do our job right, justice will be done.

    MANJEET SINGH DHILLON is a senior lawyer. The above is the final part of a speech delivered at the Bar Council colloquium 'Current judicial trends and the rule of justice' on Sept 21. The first

    part was published Tuesday; the second , yesterday.