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Better to let 10 guilty men go free

Posted: 25 Aug 2013 04:37 PM PDT

By overturning the decision, the Court of Appeal is not saying that no one killed Altantuya. It is not even saying that the two accused did not kill the victim. What the Court of Appeal is saying is that the evidence presented at trial is not enough to prove, beyond reasonable doubt, that the two accused are guilty. Thus, because there is not enough to prove, the decision of the High Court judge to convict the two is wrong and should be overturned. 

Syahredzan Johan, The Star

In 2009, two police commandos; Azilah Hadri and Sirul Azhar Umar were convicted by the High Court of the murder of Altantuya Shaaribuu. Last week, the Court of Appeal, in a unanimous decision by a three-man panel, Datuk Seri Mohamed Apandi Ali, Datuk Linton Albert and Datuk Tengku Maimun Tuan Mat, overturned the conviction of the two accused and freed them and in doing so sent shockwaves that reverberated throughout the country. 

Understandably, people are shocked and outraged. The decision was met with derision, criticism and ridicule. Conspiracy theories mushroomed, as people tried to make sense of the Court of Appeal's decision. Who killed Altantuya? they asked, since all those who were charged with her murder have now been freed?

Several reasons were put forth by the Court of Appeal as grounds for its decision. Amongst others, it found that the High Court judge had erred by not taking into account several important issues such as the alibi and telephone logs of one of the accused. It also found that there were also inconsistencies in the testimonies of the prosecution witness leading to the discovery of the crime scene. 

According to the Court of Appeal, the High Court judge also did not make a finding on how the two accused could come into possession of the explosives used in the murder, since the type of explosives used were not found in the police armoury. Most importantly, the Court of Appeal held that the failure of the prosecution to call a material witness was essential. This material witness, the Court of Appeal held, should have been called to unfold the narrative which the prosecution's case was based on. 

Thus, the culmulative effect of these doubts raised by the counsel for the accused rendered the convictions 'unsafe'. A conviction would be 'safe' if it is established that the two accused were guilty of the murder beyond reasonable doubt. 

Remember the basic principles of the criminal justice system. A person is innocent until he or she is proven guilty. There is a presumption of innocence that may be rebutted by evidence in a criminal trial. A person should not be incarcerated until the charge is proven against him or her. The accused must also be allowed to defend himself or herself from the charge. The burden of proof is on the prosecution, to collect and present enough compelling evidence to convince the Court that the accused is guilty.  The prosecution must do so by showing that there is no reasonable doubt that he or she did it. If even one reasonable doubt is raised, then the accused should be acquitted. 

By overturning the decision, the Court of Appeal is not saying that no one killed Altantuya. It is not even saying that the two accused did not kill the victim. What the Court of Appeal is saying is that the evidence presented at trial is not enough to prove, beyond reasonable doubt, that the two accused are guilty. Thus, because there is not enough to prove, the decision of the High Court judge to convict the two is wrong and should be overturned. 

It is not easy to prove a criminal charge against a person. This is how it should be. 

If a person is convicted, his or her liberties would be taken away. Sometimes, as in the Altantuya case, a guilty verdict would result in death. In order to justify these state-sanctioned violations of liberties, it must adequately be established that the person is guilty of the offence in question. 

The prosecution would have the entire machinery of the State at its disposal to investigate and prepare the case against the accused. The accused would not have such tools at his or her disposal. To balance this out, these principles of the criminal justice system were established. 

The English jurist, William Blackstone, expressed what is now known as the 'Blackstone formulation' for criminal law . According to the formulation, the criminal justice system must always err on the side of innocence, even if it means that with this current system guilty men would also escape punishment. 

We may believe that the two accused are guilty. We may think that with the evidence we have seen, it is very likely that two did commit the murder. We may also feel that in this case, justice has not been delivered for the victim. 

But at the same time, we can never be completely sure. The truth is out there and even if there is a small chance that they were innocent of the crime, then the benefit of doubt should go to the accused. Remember the Blackstone formulation - "It is better that 10 guilty persons escape than that one innocent suffer".

There is nothing wrong with criticising or disagreeing with the decision. But let us criticise the decision if the decision is indeed wrong. Not because we did not get the decision that we wanted.

Syahredzan Johan is a young lawyer and partner of a legal firm in Kuala Lumpur.


Mahathir’s Continuing Burden Upon The Nation

Posted: 25 Aug 2013 12:24 PM PDT 

It is pathetic that after having served as the nation's longest serving chief executive, Mahathir could point only to those physical monuments as his legacy. 

M. Bakri Musa 

Mahathir is the only prime minister who devalued the ringgit, the very symbol of the nation's sovereignty. If that were to be his only negative legacy, Malaysia could easily bear it.

Unfortunately the man has burdened (and continues to burden) Malaysia with many more ugly legacies. He has also devalued our culture and institutions. Most of all he has devalued the trust we have in each other, a vital but scarce asset in a plural society.

On a much lesser scale, and to serve more as a concrete example, the upcoming UMNO leadership convention will be another. With its "no contest" rule now the norm, the convention mocks the very meaning of a leadership election, reducing it to the same level as the old Soviet "elections." This coming event will again expose the party's corruptness and how pathetically bereft it is of talent. The same old tired and tainted candidates will be recycled. It is an exercise less of renewal and rejuvenation, more of an old and leaking sewer treatment plant, with nothing to hide the stench.

As for the candidates, they would be like desperate monkeys elbowing and clawing each other for the top braches, their howling effectively drowning out the sound of the tree crashing down.

Legally speaking, this party is of course not the original UMNO, rather "UMNO Baru," Mahathir's own creation after he maneuvered a less-than-honest squeaky victory over his challenger, Tengku Razaleigh, back in 1987. The party was subsequently deregistered. UMNO Baru is but a pretender to that glorious old party, the spirit of 1946, the one that bravely fought against the Malayan Union and ultimately brought the country to independence. No surprise then that this UMNO Baru has all of Mahathir's ugly trademarks.

I am privileged not to have met the man; thus my analysis is strictly based on his policies and performances as a leader. It is not colored by personal feelings or show of gratitude. I am spared the "mudah lupa" (ingrate) epithet.

Again thanks to Mahathir, this mudah lupa is a special burden in our culture where one's personal kindness and familiarity could hide and indeed excuse many a sin. Mahathir himself is not spared this burden; hence his being easily hoodwinked by the put-on piety and humility of his chosen successor, Abdullah Badawi. Even Mahathir's subsequent enthusiasm for Najib to replace Abdullah was based less on Najib's talent, more an expression of Mahathir's gratitude to Najib's late father for having "rehabilitated" Mahathir into UMNO.

Yes, Mahathir was once kicked out of that grand old party back in 1970 in the aftermath of the deadly 1969 race riots. Those early leaders of the original UMNO were wise and prescient.

Rehabilitated he was, and with his subsequent ascent to the top post, the country now bears the burden of his follies. We will continue to do so long after he is gone, such was the damage he inflicted upon the country.

The currency devaluation was painful enough, especially to the poor. We still bear it today. Judging by past performances, this upcoming leadership contest would again assault our sensibilities, especially of Malay culture. Forget about our budi bahasa (gracious) and halus (soft) ways.

Those previously found guilty of "money politics" (that's corruption, to the rest of us) like Isa Samad and Khairy Jamaludin would again be elected to top positions. So too would former Selangor Chief Minister Khir Toyo, except that he is now serving time for corruption. Incidentally Khir Toyo is regarded as "clean" by his fellow UMNO members. As for Isa and Khairy, the former is now put in charge of the multi-billion ringgit FELDA, the latter, a cabinet minister. That too, is part of Mahathir's legacy.

One might quibble about Khairy for he once bragged about being Mahathir's vocal critic. However, Mahathir's legacy is the overall negative culture he fostered in UMNO Baru. In any other culture or jurisdiction, that young man would not even be nominated for dog catcher. That speaks volumes to the degradation of UMNO Baru.

That is Mahathir's legacy, its destructiveness is pervasive and permanent precisely because it is less obvious.

Read more at: 

Altantuya changed everything

Posted: 25 Aug 2013 10:21 AM PDT 

Altantuya changed everything. The truth has surfaced. We have names, amount of money involved, the secret deals and much more today. Nevertheless, there is a lot more to be discovered. 


Watergate resulted in the resignation of an American president and the indictment, trial, conviction and incarceration of a number of Nixon's top administration officials. No sex, no corruption, no cronyism, no murder, no national security issues…just Nixon lying to the American people!

The Profumo Affair forced the resignation of Britain's War Minister and ended 13 years of unbroken Conservative government rule. This was a tale of how the rich, famous and powerful indulged in sex, with suicide, intrigue and espionage thrown in for good measure.

As political scandals go, the Abdul Razak Baginda & Altantuya Shaariibuu affair has it all.

It's a concocted tale of violence and murder, death, betrayal, greed, deceit, cover ups, illicit sex across many continents, corruption, cronyism, abuse of executive power and the peoples' trust, massive abuse of public money, compromising our national security, shenanigans at the Immigration department, gutter politics, miscarriage of justice, covert operations by Unit Tndakan Khas (UTK) on behalf of the rich and powerful, theft of explosives from the Ministry of Defence (MINDEF), blackmail and the exposure of the lives of the rich, powerful and politically connected and not dismissing the likelihood of further escalation of diplomatic 'tension' involving Mongolia and France….and still counting!

In summary a drama of Shakespearean dimension! As of 2013 – another death – that of P Balasubramaniam, and the acquittal of Azilah Hadri and Sirul Azhar Umar, can now be added to its data base.

Yes, events can be manipulated, information suppressed and truth hidden but not indefinitely.

The Altantuya murder exposed what we suspected has been happening all along in the murky world of corruption, cronyism and abuse of executive power by Umno's political elites and their cronies.

There has always been corruption in Mindef before but never on this scale and latitude.

There were those who actually managed to "persuade" the Barisan Nasional government to buy Scorpene submarines. The entire process from tendering, evaluation, logistics of equipment supply, training and right up to getting the submarine crew was manipulated just to ensure that the two Scorpenes will "selam".

And it surely involved a tender committee, the Malaysian Cabinet, the Minister of Defence and (of course) Abdul Razak Baginda himself. Truly a cast of thousands and painfully paid for by the ignorant Malaysian public.

Commissions have been paid for questionable "services rendered" to brokers, middlemen and agents before but never so blatantly as to make even the most tolerant of us to ask "What services were rendered to warrant RM500 million payment?"

There have been abuses before by those tasked to purchase our defence equipment but awarding Abdul Razak in millions of our money is totally astounding.

Upon pocketing, Abdul Razak chose to embark on an escapade across continents in a Ferrari with his mistress. It is clearly an irresponsible behaviour on his part.

Did it ever occur to Abdul Razak that apart from cheating his wife and family, he was compromising our nation's security and honor? Was it just to satisfy his personal needs –sex?

A matter of timing

Watergate and Christine Keeler brought down governments but in Malaysia the Abdul Razak and Altantuya affair only brought out the worst of our judiciary and the government.

The manner on how BN government handled the matter speaks for itself:-

1. Two UTK operatives have been found guilty of murdering Altantuya for reasons unknown to-date, and now they have been acquitted on appeal.

2. Abdul Razak is in exile and well cashed up and is free to do what he pleases, where he pleases.

3. The then minister of defence is today Prime Minister of Malaysia!

And the Malaysian public has been told that "justice will prevail" despite the obvious before our eyes.

Before the Altantuya saga, the accusations of mischief, corruption, cronyism and abuse of power hurled towards our ministers were brushed off as half-truths, gossips and innuendos.

Altantuya changed everything. The truth has surfaced. We have names, amount of money involved, the secret deals and much more today. Nevertheless, there is a lot more to be discovered.

Why, you may ask, has this Abdul Razak-Altantuya affair not brought down Najib and caused the downfall of the Umno-led Barisan Nasional government?

It is simply a matter of convenience. The merit of a scandal has little or nothing to do in bringing down a government. It is a matter of timing.

When Muhyiddin Yassin or other forces within Umno are ready to move against Najib, then the Abdul Razak-Altantuya affair will be revisited and enough will be revealed to 'persuade' Najib to exit Umno with dignity or money!

There is ample of evidence to support this notion. It happened with Musa Hitam, Anwar Ibrahim, Ku Li and even Pak Lah during the Mahathir era. This phenomena will only stop until we do not demand excellence and meritocracy from those in public office.

Until such time, Altantuya will have to wait for justice.


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