29
Jun
10

 

JUSTICE PERVERTED

It is alarming to discover that many of  the investigations on cases of bribery and corruption carried out by the MACC come to nought when prosecution witnesses turn renegade. What this means is that the witnesses who were sympathetic to the prosecution’s case have gone back on their word or even police statements, and now refuse to cooperate. They are declared as hostile or unfavourable witnessess who abort the course of justice being served in and by the courts.

What the public see as a clear case of corruption is thrown out by the judge for lack of evidence and not being proven “beyond a reasonable doubt”. The hostile witness himself may be charged and tried for perjury, found guilty and served a jail sentence while the real perpetrator of corruption – the “big fish” with money to buy himself anything or out of anything – gets away scot free. The irony is that these turncoat witnesses would most likely have been intimidated, threatened or bribed for them to change their tune – a double jeopardy in the fight for justice!

The call for the MACC to be given prosecution rights will not do much in the fight against corruption, if after their rigorous investigations justice is aborted in the courts when their witnesses turn hostile. Whether prosecution lies with the AG as it now is or with the MACC, what must be looked into immediately is the strict formulation and enforcement of the Witnesses Act. 

Loopholes that allow all and sundry to escape the law and make a mockery of justice must be plugged and a new precedence set. The nation’s lawmakers must be bold and debate at the highest levels the possibility of introducing new clauses that truly protect society against its unscrupulous citizens. For instance, it could be enacted that sworn written statements made at the beginning of an investigation can be used to corroborate evidence given in court. In this way a witness –  prosecution or defense – is held to his word and can be examined and cross-examined on an outstanding piece of evidence. 

Laws are man-made and if there is enough justification to modify them in the interest of society, there must be clear directions in their reformulation. While the argument that it is also the right of the individual citizen to be protected by the law holds water, one must be able to weigh more logically the ramifications of a justice system gone awry or the national anti-corruption agency losing its credibility. 

The argument that witnesses may give evidence to investigating officers under duress and their sworn statements abused by counsel does not really hold water when these same people face worse intimidations by parties serving only their own selfish interests or that of the underworld. When witnesses are bribed and threatened to change their stance, do our honourable lawyers and judges just stand aside to give way to the forces of unlawfulness that are causing untold damage to society?

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5 Responses to “”


  1. 1 Gopal Raj Kumar
    July 4, 2010 at 5:55 am

    It goes beyond a hostile witnesss and a witness turning coat at trial or at a stage where it is critical the witness repeat or attest under oath to the assertions that were made by them previously to cure the ills of corruption or to obtain a successful conviction on the charge.

    Hostile witnessses can be compelled to testify and to acount for the change in their statements or to the change in the positions they adopt in such situations on pain of punishment with a custodial sentence for contempt of court. That nature and extent of that offence is often misunderstood by lawyers everywhere.

    Contempt of court is about interfereing or obstructing with the course of justice and process of the law. It carries a jail term and if proved and can of itself be quite an intimidating prospect for an errant or waning witness.

    The riddle is this, why would an informer in the first instance want to make an allegation against another of such a serious nature that the allegation without it being tried and proven has the capacity to irrepairably damage the reputation, public standing and integrity of the accused, then turn coat? is it because faced with the prospect of perjury, testing the veracity of the allegations made (much of which may be hearsay without the requisite standards of proof) the pressure of its consequences if it is not proven and truth, combine to make for a strong disincentive to proceed?

    Or worse still. Is the pattern of turning coat the result of the yet un resolved mystery of Teoh Beng Hock’s death in custody? Many a witness has mysteriously fallen to their deaths, committed “suicide” in police custody, shot in an encounter with police or simply vanished in places like New South Walees Australia (Newspaper heiress turned anti corruption crusader Juanita Neilson 1975), Warren LanFranchi (drug informer, peddler and addict), his late girlfriend Sally Ann Huskstep (who witnessed his slaying by police) mysteriously drowned with DNA of the detective accused of her murder in her fingernails (he was not tried) and the list goes on in other states in Australia , the US and of course my favourite place for this sort of mystery India.

    Corruption is a cancer in any society. If allowed to flourish unchecked it becomes the rule rather than the exception as it is in India and Pakistan, Thailand and Indonesia and almost all of Africa and South America and renders civilized laws unworkable.

    Have the courts in Malaysia the capacity and the will to tackle non compliant witnesses who torpedo valuable criminal investigations by their refusal or unwillingness to cooperate at a critical juncture of the investigation process? or is there a lack of confidence in the police (to protect) and the judiciary to compel protection and compliance with the rule of law on everyone?

    The MACC is only as effective as the nation allows it to be and as efficient as their masters want them to be. The question in a democracy as Malaysia is this: Who are their (MACC’s) real masters?

    My suspicion is that those who complain about the MACC and corruption in general in Malaysia are themselves like most Asians active participants in the practice of corruption. That includes the “bayar pintu” to get into a cinema or obtain an unfair advantage over others at a train or bus queue, pay off an under paid “flat foot cop” over a traffic infringement or simply by purchasing a pirated DVD or a bottle of fake Yves St. Laurent perfume or handbag.

    These events occurs with such frequency that when the call comes “let him that is without sin cast the first stone” everyone will like that biblical crowd turn coat and walk away with their proverbial tails between their legs.

    Unless there is a competent witness protection programme, it is futile to expect witnesses to cooperate in any investigation when the price to pay for such a moral stand can be one’s life. Self sacrifice is too high a price to pay. By divine design it has been allocated to saints and prophets but not to the oridinary citizen of the street.

    Better to turn a blind eye than to end up dead.

  2. 2 ninitalk
    July 5, 2010 at 1:52 pm

    Thank you GRK for the expert “insider” information!

    Ironically the traditional Malaysian traits of being congenial and agreeable have also made them persuadable and corruptible. Thus their willingness to whistleblow and then blow out the case by becoming hostile witnesses. There lies the rub in courtroom justice as you yourself have testified.

    I agree an effective Witness Protection Act must be securely in place before the MACC, police and other enforcement agencies will see widespread public involvement and cooperation in solving/ eradicating crime.The possibility that they are beholden to other “Masters” besides the government is scary indeed but not far-fetched as developments in other countries show. Hong Kong was ridden with underworld activities but its anti-corruption agency is now reputed to be one of the most respectible.

    Ordinary citizens should not fear casting the first stone especially if our own moral indiscretions (as indeed there must be)are mere specks in the ocean and have hurt or abused no one but ourselves. There lies the difference!

  3. 3 Sayang bangsa
    July 10, 2010 at 10:43 pm

    Hi Datin

    It’s been a long time since I read your letters to the editor.
    Really missed it. Please write again.
    P.S. Have been a silent reader of your blog all this while.

  4. 4 ninitalk
    July 11, 2010 at 5:11 am

    Are you my dear old family friend Agus – Sayang bangsa?
    How nice to meet in cyberspace if not face to face.

    Yes – I’m not writing letters to the editor (NST, The Sun & The Star)as often now because I thought I should focus much more on a few issues rather than cast my net too far and wide. I don’t want to be a “know all” and appear “holier than thou” but rather, a concerned citizen (journalist) who is constructively critical not destructively judgemental.

    Most of the government leaders and civil servants are working really hard out there, trying to sort out the numerous contradictions and incongruities in Malaysian society including the political. There’ll always be a few who slip along the way and they must be taken to task and take responsibility. They must redeem the injustices and the wrongs committed over the years and whenever.

    But I do so despise the constant hitting below the belt at the Malays and UMNO when these critics, killjoys and howlers are no better and in fact were/ are party to the corruption and moral decay.

    It is as though the government can do no right, that all efforts are in vain unless and until they take over and rule. They must be kidding!

  5. 5 ninitalk
    July 28, 2010 at 4:33 pm

    Halimah

    I hate sounding like an apologist for you or like a sycophant to your points of view each time something as controversial as the subject of this posting arises.

    OVERVIEW

    The idea and the concept of corruption in this instance you refer to is the taking of or giving of bribes or other inducements to public officials for favours prohibited by law.

    You are quite right that the number of cases that collapse resulting from conveniently changed testimonies during a trial do point to something more sinister than the good Judge Shaik Daud (Ret) rightfully explains in his responses to your questions.

    However the point at which I disagree with the honourable judge is here; Where witnesses testimony is altered or changed in a material particular sufficient to render the complexion and the core of his allegations or testimony a total about face or even near enough to a complete about face, the Judge has an obligation if not a legal duty to intervene and to caution the witness about his evidence.

    DIFFERENCE OF OPINION

    It is not about a misplaced “yes” or a “no” or a word or meaning out of context that you surely refer to here that is at the crux of your allegation or argument but, the substantive corrupting of evidence by changing a “He” into a “She” or by changing a statement of direct evidence into third hand hearsay that matters.

    The particularissues you seek to agitate in you posting, if I am to correctly assume, is substantiallyone of failure of procedure and process in court, which allows if not aids and abets perversion of the course of justice in an open court. And for this there are several parties and factors that have a burden both moral and legal to bear.

    The first of these are incompetent legal practitioners. Lawyers. It appears that there is no shortage of them in Malaysia. The second issue being poorly trained judicial and law enforcement officers. The net result is the blind leading the blind.

    From the ranks of the bar come our judges. And I might add there are some very able men and women in the latter ranks. One of who has ably commented here on the issues you have raised though not far enough which is his privilege and I would defer to him in this regard.
    I am familiar with the case of Karthigesu and the circumstances that led to the perjury conviction having been intimate friends with the late lawyers who defended Karthigesu and having followed the trial.

    DANGERS OF NOT SCRUTINISING AN UNRELIABLE WITNESS

    However and I say this with caution, when a tribunal (or court) is unable to determine the difference between a slip in testimony, whether in written form or orally given or, when a witness is feigning a memory failure during examination or cross examination or, when one is unable to differentiate between a volte face on a fundamental fact or issueduring examination, one that goes to the core facts or issue being tried we are all in trouble.

    It is when this occurs when a witness is more than merely suffering from memory loss (convenient amnesia) of ‘departing from the truth’ or engaging in semantics thatthe opportunity to arises for judge and prosecutor to pursue the witness with the inconsistencies of his evidence. Malaysia’s may not be in an inquisitorial system, but that of itself does not prohibit the judge from questioning or making a finding against a dishonest witness. The fact is no one has property over any witness. The term ‘witness for the prosecution and witness for the defence has little value when one considers the that a witness is a witness to the facts and the matters in issue and on trial.

    AN EXAMPLE OF WHY HOW AND WHEN THE WITNESS BECOMES THE ISSUE

    A classic recent example of why especially written testimony whether under oath or otherwise,which when tendered into court in evidence then, found to be unreliable and dangerously so, must be the subject of close scrutiny under the pain of punishment for perjury by the judge or lawyers are statements of a former police man turned private investigator Balasubramaniam.
    http://takemon.wordpress.com/2009/11/17/balasubramaniams-bombshell-a-consiracy-by-lawyers/

    The matter is a matter now of public record and the opinions contained in the link are those of the writer alone.

    I need go no further than to commend a read of the so called statutory declaration and its analysis to your readers.

    Salaams

    Gopal Raj Kumar


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