The weight of a criminal lawyer’s work is immense.

It is lightened somewhat if one’s clients have connections to a high station in politics, government, or society or are people of means. They are cut a lot of slack compared to the common man or those regulars of the criminal justice system.

These privileged accused requests for adjournments are often allowed. Their cases are prioritised and accommodated over regular cases involving no one of note. They are allowed to leave the country while their trial continues. Their lawyers are given generous timelines and hearing times. Their lawyers can file thousands of pages of submission and authority bundles without reprimand. They arrive in court dressed well and looking rested, not in orange overalls or smelling like last week’s unwashed laundry.

In short, Mohammad Najib bin Abdul Razak is treated differently from Mohd Najeeb bin Bapak Entah Sapa. Very.

The task of a criminal is heavier for those whose clients are without means, education, station in life or luck. And what follows is with them in mind.

Those without means are handicapped in many ways. They cannot hire appropriate experts, advisors or private investigators to explore or support their defence. Those without education are unable to communicate or do so poorly. Those without a station in life, such as migrant workers, will find no pity from any quarter. Hatred will be heaped on them.

And yet, both ultimately face the same challenges. It is only a question of degree.

Firstly, they face the general public’s lack of sympathy and unlearned attitude, which presumes a person arrested is guilty until proven innocent in court. They misguidedly believe that harsher punishment has a deterrent effect, improves enforcement, and has no tradeoff. Politicians who want to appeal to the general public exploit this attitude by being ‘tough on crime’, calling for more new offences, and increasing minimum and maximum sentences.

The public is prejudiced against them.

Secondly, because these politicians are in government, they enact laws to show they are ‘tough on crime’. The Dangerous Drugs Act 1952 is an excellent example of that. Since 1975, the government has continually amended it to make it far easier to find someone guilty of an offence than a regular offence under the Penal Code. It violates the criminal process applied to offences under the Penal Code, our primary legislation on crime and effectively reverses the burden of proof against an accused.

Due process is turned on its head against them.

As an aside, this anti-drug policy is a monumental failure. After almost fifty years, drug trafficking has not reduced. Increased penalties in themselves do not work in an environment of rampant corruption, which is much more severe, urgent and insidious compared to drugs. A drug dealer makes millions. Politicians embezzle billions. Don’t waste time robbing a bank. Don’t start a company. Get into politics and government.

Thirdly, an accused person faces the might of the state. It’s a David and Goliath. The prosecution, composed of deputy public prosecutors, can draw upon the state’s resources. The attorney general’s chambers, the police force, the forensics department, the government hospitals, and the fire department, for example, work in concert to gather evidence, provide reports, and charge them in court to secure a conviction.

A regular accused person does not have any of that benefit. They get legal representation from legal aid clinics, the National Legal Aid Foundation, the Legal Aid Bureau, or the courts. They have no access to medical, forensic and other experts. The fee is for the lawyer alone and even then it is a paltry sum. Comparing the state’s resources to a regular accused person is like comparing Everest with a mole.

The might of the state is against them.

Fourthly, the procedure and rules are generally unfavourable to an accused. Illegal evidence is admissible against them. Defects in the police investigation or prosecution’s case are curable. Trial in absentia is allowed. They can be detained even after they are acquitted. An accused’s interests are not protected and are often whittled away in favor of the prosecution.

Criminal procedure is framed against them.

Fifthly, the prosecution does not promote fair play or equality of arms. The attorney general’s chambers behave like a prosecuting firm instead of a government agency in the public interest. Criminal trials are conducted by way of trial by ambush. Documents are served late or not at all. No access is given to police investigations or prosecution documents. Prepared witness statements are served only on the day of the trial, minutes before a prosecution witness is sworn in. An accused is given little opportunity to prepare for trial properly. Prosecutors ask leading questions as much as possible.

Sixthly, the prosecution can get away with all that because judges, generally and particularly those long in the tooth hearing criminal cases, tend to favour the prosecution. They insidiously assist the prosecution by guiding their witnesses, ‘subtly’ suggesting questions or lines of queries, or outright asking court questions after re-examination to repair prosecution witness evidence, for example. That happens during trial.

Grounds of judgment are prepared single-mindedly with conviction in mind. Favourable evidence, inferences and arguments for the accused are ignored. Any benefit of the doubt is resolved in the prosecution’s favour. Malice is presumed of the accused. Evidence by authorities, no matter how flawed, is preferred to an accused. These days, the criminal process is less about raising a reasonable doubt and proving one’s innocence.

To be fair, this is not an exclusively domestic problem. It is a general one in most justice systems The system is such that judges are incentivized to convict. Like the prosecution, judges are assessed and promoted based on their conviction rate. A judge with a high conviction rate is seen as efficient and appropriate for promotion. Moreover, a judge who acquits more than convicts appears lax, inefficient, or worse, a rebel.

Of course, not all judges are like that. But to insist it does not happen is to possess an impoverished sense of naïveté.

An accused stands alone amidst all that. The only thing that stands between an accused and the prosecution juggernaut is their appointed lawyer, who is usually underpaid and tired out. A criminal lawyer has to face, navigate, and contend with all those forces, sentiments, procedures, laws, and attitudes in defending his client. Equality of arms, which requires a fair balance between the opportunities afforded to the prosecution and defence, exists more in myth than in practice in Malaysia. Defending someone is very hard work. And I am just talking about the work, not getting the work, which is another thing altogether.

Yet, despite all that, we never seem to run out of lawyers who want to practice criminal law. I don’t know whether it’s out of ignorance of those forces I described earlier, naivete, money, idealism, or passion. Whatever the case, the immensity of that weight, which is the work of a criminal lawyer, is made lighter not by the forces they must navigate but by the unwavering commitment to the principles of justice.

For some, it is the hope that one day, fairness will be more than a myth. For others, it is the belief that everyone deserves a defence regardless of their means. In the end, what sustains them is the conviction that even in the face of overwhelming odds, there remains a duty to uphold the law and to fight for those who cannot fight for themselves. Perhaps that is where the true weight of a criminal lawyer’s work lies — not in the burden of the challenges but in the honor of ensuring fairness in the administration of justice.