In a democratic society like ours, the courts supply one of the most prominent mechanisms for protecting the rights and liberties of citizens. Beside having an adjudicatory role and penal function, a court has to apply the law beyond formal rules to principles and doctrines.

A judge has to set out on the task of considering harmony, public interest and the importance of security for every Malaysians. Put simply, a pragmatic rather than dogmatic approach.

A judge should be receptive to the felt necessities to show suppleness of adaptation to the needs of any victim, accused or affected party. Hence, the court has a duty of preventing any criminal acts such as assault, abduction or any form of violence.

The court can issue a warrant of arrest, an order to show cause, an order to prevent obstruction or riot, the list goes on. Ironically a protection order is available to witnesses of a court proceeding, victim of domestic violence, informer, victim of human trafficking but not an accused.

Previously, a reporter was also alleged to be given a ‘protection order’ under the ISA. It was reported that in the jet engines theft case recently, the accused, N Tharmendran opted to be imprisoned instead of making bail.

He had lodged a police report in relation to several RMAF officers who went to his parents’ house in ‘an attempt to abduct’ him. When he applied for a protection order, the Sessions Court disallowed it by reason of having no jurisdiction to grant the same.

It is a decision that can seriously endanger the victim who trusted the court system to protect him as the law requires. Nothing could be further from reality.

Articles 5(1) and 8(2) of the federal constitution also provide that it is the constitutional duty of the court to ensure equal protection of the law and no person shall be deprived of his life and liberty.

This forms the very basis of our criminal system. Having said that, it must be borne in mind that an accused is also a person.

Nowadays, courts tend to interpret their powers narrowly. In case after case, the courts have declined jurisdiction even though questions of security and safety of an accused are at stake.

Religious conversion of spouses case is another example. Perhaps it is time for the lawmakers to amend or propose laws which will allow the courts to assume jurisdiction over the protection of an accused.

The writer is Gerakan’s Legal and Public Complaints Bureau chairperson.