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The presence of absence

Posted: 17 Oct 2013 06:51 PM PDT

It sounds weird that two groups of people go to court to fight over ownership of something that they cannot prove does, in fact, exist and that the court did not insist that existence must first of all be proven before ownership can be established.


Raja Petra Kamarudin

Many people are very happy that Umno's new system of choosing its leaders in its annual general assembly has successfully eliminated 'money politics' -- basically the term for bribery to win votes. This was what NST reported:

The Malaysian Anti-Corruption Commission, which had in the past investigated politicians for money politics, is banking on the party and its will to promote transparency, to keep money politics at bay.

Its chief commissioner, Tan Sri Abu Kassim Mohamed, said as Umno had made an unprecedented move to amend its constitution in ensuring transparency and eradicating money politics, this effort must be seen through.

"At the end of the day, Umno members should be electing their leaders based on their integrity, merit and track record," he told the New Straits Times.

A source, meanwhile, said MACC had yet to receive any reports on money politics following Saturday's polls.

This, he said, was a stark contrast to the party's previous polls, where reports alleging vote buying came pouring in, in the run-up and immediately after polling day. It then rounded up 12 party division leaders for allegedly dabbling in money politics.

What the MACC chap was saying is simply this. Since there are no reports about a certain incident, then it does not exist. It is fundamentally absent.

I have been arguing about this issue for some time now. Since no one reported experiencing it or seeing it, then it surely cannot exist. If it does exist, then at least one person or more than one person would have reported it.

This is the same argument regarding whether there is life in outer space or on other planets or in other galaxies. Since no one has reported actually meeting Martians or whatever, then we must assume that life exists only on earth and there is no life outside earth.

Proof of an existence of something has to be based on eyewitness accounts. This, too, is how the court works when it comes to laws of evidence. You must have personally seen or heard something for it to be considered as reliable or credible evidence.

To testify that this is not what you personally saw or heard yourself, but that this was what you were told by someone, and you do not even know who started this story or where it originated from, would mean that what you have to say is mere hearsay and cannot be accepted as evidence.

I understand this and accept the fact that this is how the law of evidence works and that this will be the acid test that the court will apply in grading a person's testimony or 'evidence' (and whether it is credible or mere hearsay). Did you see it or hear that person say so yourself or are you merely repeating what you heard from another source and cannot, in fact, even confirm the source of this story?

Hence, no one actually came forward to say that he or she saw someone pay the bribe or was, in fact, personally offered a bribe to vote for so-and-so. This means, in the absence of such evidence, we have to assume that bribery does not exist in the Umno elections, all due to the new Umno election system, which has successfully eliminated 'money politics' or bribery.

It is actually a good standard to apply and helps separate fact from mere unconfirmed stories, rumours, hearsay, 'coffee shop' talk, and whatnot. Were you there? Did you see it yourself? Are you a witness to the event? Did you hear that person utter that statement with your own ears? Or is this merely a story you picked up and, in fact, cannot even confirm whether it is true or not?

If we accept 'stories' as evidence then millions would now be in prison. DAP is pro-Communist -- that is why they want to bring back Chin Peng's ashes to Malaysia. The Christians are trying to convert Muslims to Christianity -- that is why they want to use the Allah word. The Chinese want to take over Malaysia and make Malays second-class citizens in their own country -- that is why 97% of the Chinese voted opposition. The Vatican is financing the Malaysian Christians in its effort to undermine Islam -- that is why they propagate Christianity in Bahasa Malaysia. The Americans are anti-Islam -- that is why the US supports Umno (Barisan Nasional) and not PAS (Pakatan Rakyat).

These are mere stories. Is there any evidence that these stories are true? If not then these 'opinions' cannot be accepted as evidence and therefore cannot be true.

A good argument is it not? And this standard of evidence helps maintain some level of sanity in our legal system. If not, and if any story from anyone is accepted as true, then stories would become fact and this so-called 'evidence' will result in many people being punished for something they did not do but are punished anyway because of these unconfirmed stories.

Okay, this is how the law works. And our courts are tasked with the job of upholding these laws. And these laws are passed by Parliament based on the Federal Constitution of Malaysia. And any laws that violate the Constitution will be considered unconstitutional and hence would be illegal.

It is a good check and balance and ensures that we receive justice and will not be subjected to injustice -- although sometimes it does not always work as we hope and as our Founding Fathers had planned. Nevertheless, in most instances, the results are positive with only sometimes being negative.

Now, after saying all that, and taking into consideration how the system is supposed to work, what happens when the court dabbles in matters of religion (or makes a ruling regarding a matter of religion)?

For example, the court may rule, say, on who has exclusivity over the name of God, meaning 'Allah' here, of course. This is a legal matter, not a matter of theology. The court needs to decide who owns the name.

Allah is supposed to be the name of God. And the Muslims argue that only the Muslims may use this name. Non-Muslims may not use this name.

The court, however, has assumed that God does exist. It now needs to decide whether Allah is the Muslim God or whether non-Muslims share this same God and, therefore, can use the same name.

Based on the law of evidence, no one has argued in court that God does, in fact, exist or offered any evidence that God does exist. No one has seen God. No one has personally spoken to God. Hence the evidence of the existence of God has not been established.

How can the court decide on the name of God and who has the exclusive right to this name before first establishing that God does, in fact, exist? If God does not exist then God would not have a name and, hence, there is no issue as to who owns that name. You cannot own something that does not exist, can you?

It is like a quarrel over ownership of, say, a piece of land. We go to court to argue about who is the real owner of that land. But that land must first of all exist. If that land does not exist and both sides cannot prove the existence of that land, then the legal ownership of that land does not arise. You cannot fight over a non-existent piece of land.

So, while we commend the court for its attempt at establishing the legal ownership of a certain item, both sides in the dispute must first of all prove to the court that the item being fought over does exist. Once that existence is proven then we take it to the next level -- who is the owner of that item.

It sounds weird that two groups of people go to court to fight over ownership of something that they cannot prove does, in fact, exist and that the court did not insist that existence must first of all be proven before ownership can be established.

I call this the presence of absence.


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