Friday, July 4, 2008

Why Balasubramaniam's First Declaration Is Still Significant

P Balasubramaniam has made an about turn and released a new statutory declaration. From media reports, it appears that he claims that those parts of his original Statutory Declaration that pertained to the Deputy Prime Minister were made under duress.

He has not been forthcoming with particulars of his purported duress. This is unfortunate as it raises many questions that the Malaysian public is deserving of answers to. As I understand it, the inflicting of duress in law requires the subjecting of a person to the kind of treatment that would leave that person with no doubt that he or someone close to him would be in grave danger, life and limb, unless that person cooperated with the person inflicting duress.

Is Balasubramaniam saying that representatives of Keadilan inflicted duress or that his previous lawyer did? We cannot overlook the statement given by Anwar Ibrahim at the same press conference yesterday in he explained how Balasubramaniam had come to make the Statutory Declaration. From this perspective, the accusation of duress is not a trivial one as it carries grave implications and consequences.

In the same vein, if in fact the police were in contact with Balasubramaniam yesterday, after the press conference at which he released his original (and now retracted) Statutory Declaration as the media suggests, the police should also make it clear to the rakyat what it is that transpired, if only to clear up any doubt as to the circumstances in which Balasubramaniam retracted his original statement.

I say this because the original Statutory Declaration was itself of grave importance and carried with serious implications. I have noted that some writers have been quick to question or dismiss the value of the original Statutory Declaration for it allegedly being hearsay, or put another way, containing only second hand information not directly within the knowledge of Balasubramaniam.

I do not share this view. Allow me to explain why.

The law requires direct evidence of a fact. Second-hand knowledge is considered to be unreliable. However it does not follow that ‘hearsay’ evidence is not admissible or irrelevant in all cases. Evidence is multi-faceted and is never merely proof of one fact. Considered from different angles, a single piece of evidence may tell more than one story.

For example, A tells B that A had stolen some money. B then tells C. C’s evidence of the conversation is not admissible as an admission by A or as proof of theft. Put another way, A could not be convicted purely on the say so of C. Evidence of A having committed the theft would have to be put before the court, in one form or the other. This is the essence of the hearsay rule.

However, this does not mean that the fact of B telling C is of no relevance. The fact is that A and B had that conversation and though C’s evidence may not be able to establish the truth of what was told to him by B, it can establish that such a conversation took place. The law permits this. If admitted, such evidence could be considered as ‘circumstantial evidence’.

Seen in this light, it is clear that the original Statutory Declaration was of great significance. In it Balasubramaniam categorically stated that he gave information to the police about the conversations he had had with Razak Baginda and Altantuya AND that such information was excluded from his statement AND that the Prosecution did not ask him any questions about this aspect of the information he gave to the police. These pieces of evidence were not hearsay as they were matters directly within the knowledge of Balasubramaniam. They were also manifestly relevant.

Additionally, for the reasons explained above, the fact of the conversations between Balasubramaniam and Razak Baginda and Altantuya respectively were also of relevance for equally suggesting an alternative or additional line of enquiry that the police ought to have looked into but apparently did not.

The about-turn and the possible, though as yet uncertain, involvement of the police do not do any good for the already seriously undermined confidence of the rakyat in the justice system.

We deserve better.

MIS

19 comments:

Aneel David Kannabhiran said...

Did you get your B and C's wrong?

Shouldn't it read:

"However, this does not mean that the fact of B telling C is of no relevance. The fact is that A and B had that conversation and though the C’s evidence may not be able to establish the truth of what was told to him by B, it can establish that such a conversation took place."

... or am I just confused?

Puzzled said...

Now something is also not right here.

If you had noticed when an 'illegal' protesters or bloggers were held for questioning at the police station, the news will be spread very fast and there will be also a crowd holding candles at night at the police station.

Why PKR never organize a candle light vigil for this man?

donplaypuks® said...

It is absolute clear that the retraction came after Bals's 'visit' to the police station.

Firstly, why did Americk not stay with his client throughtout this
2nd ordeal? He appears to have sped away with indecent haste after leaving his client alone in the lion's den.

But, can you see the police now saying anything other than that Bala, by being placed in an environment extremely conducive to relaxation (i.e. b'fields police station), had a timely & more vivid recollection of events and then felt compelled to set the record straight post haste? In the light of a wash-over of remorse and acute sense of justice?

How could the 'real truth' be made to emerge. Another RCI?

donplaypuks at http://donplaypuks.blogspot.com

Malik Imtiaz Sarwar said...

Aneel,

you were right, thanks for spotting and pointing it out. Have made the changes.

Cheers,
MIS

Mr. Smith said...

Can we honestly believe that a PI who had served in the police force for 17 long years can be threatened into making a SD and declaring it to the whole world in the presence of his lawyer?
I am also sure Bala had anticipated a call from the police and the repercussions when he stepped forward before the camera.
Now the world has more reason to believe in his first SD.
In any case, Najib wins nothing, absolutely nothing, from this so called retraction.
Perhaps, he could have lost ground.

chaptokam said...

I am neither a fan of both and I have critised and I firmly believe Najib is involved , however the latest chain of events have led me to be pissed off and I feel I ought to express my distaste and feelings.

These are a bunch of jokers plainly there are two persons involved ,one a Jackass and another a Sodomass with their only intention of becoming the Prime Minister of Malaysia without due consideration to Malaysians in general and the image of the country in general . Today Malaysians are already bracing for hard times with or without these Wong Sa and Yeh Fong soap operas . Today instead of trying to solve our economic problems with oil and petrol price increases affecting all daily usage comodities , transportation , bus fares , electricity tariff increases , super inflation of around 12 percent , we have these two Morons fighting to see who delivers the knockout punch . What a joke , this is the greatest joke of the century in Malaysia .

All these sandiwara's are done for the purpose of only one thing . I want to be the PM of Malaysia . I don't care what happens to Malaysians , you die by the roadside , cry ,curse , go on rampage , no food to eat, no place to stay , kill out of frustrations , I don't care and I don't want to know as long as my opponent gets kick out and I become the PM .

What is the point of everyday trying to get the rakyat to protests , making use of the rakyat for that purpose ? or to hold a one million rally ?? for whose benefit ?? for the jackass own benefit!!!

If you have the PROOF , bring it out and settle it once and for all .
NO MORE DRAMAS ,WE ARE SICK AND TIRED OF ALL THESE DRAMAS .

Coming back to the issue on the PI
His lawyer has this to say when he made the SD;
Americk said: “We’re not saying what he heard is absolute gospel, this must be distinguished. Balasubramaniam is not in the position to determine what is true or not.”
So does this imply the PI is either lying today or yesterday. Basically he is paid to do the wayang for the benefit and to sway public opinion to the Jackass .
How can you make a SD based on HERESAY ???
A SD is a document recording accurate chain of events that happened NOT on heresay .
Today's SD is to do away with all the heresay .

So whats there to say ? how can a court convict someone based on heresay ??
If you Anwar as you say have SOLID PROOF , bring it out OK !!
NO more wayang please .

RPK is still the most reliable and still the BEST when it comes to bravery and on willing to stand up on what he writes . He should be the PM of Malaysia, not you two opportunists.

Anonymous said...

I am confused with this Balansubramanian guy. Why is he able to make a satutory declaration a day before and retract it a day after? Has he received any phone call from anyone higher up?

adam said...

Mr Imtiaz, may I suggest that you give a copy of this analysis to our police and the AG - hopefully they understand

Anonymous said...

i think PKR have been very foolish not to have put measures in place to protect bala and his family ... its downright stupid that they could not have foreseen such a thing happening

and now that americk has mentioned a laptop belonging to bala .. i am sure that too will magically go missing ... this is a bad hollywood script that is both predictable and .... no its just predictable

John Tan said...

What is the truth anymore?? This have come to the stage whereby we are not able to put our trust in our government, our judiciary, our law enforcements. We are now in a dilemma on how to separate the truths and the untruths. Is there any way out of this rut that we are digging ourseleves in? At the meantime, all this circus sideshow is at the expense of the country's economic and social well-being.

KuchaiBoy said...

While the fury of events has clouded many of us, either intentionally or otherwise, we will never ever be sure who is telling a lie, determining the individual's intentions, or any other twisted agendas these actors have in mind.

I for one is fully focussed on the reactions of all the parties. It may not reveal the whole truth but if we use 'truth' as our holy grail to mean for the better of the majority (am tempted to say 'for everybody'), then we may have some idea of who is sincere enough to find the truth.

Nevertheless, while we may never know the whole truth, we will still be deciding with a touch of emotions and individual judgement, the problem is that it may still not be enough to make a factual judgement.

Patricia said...

I have never pretended to understand how the law and the courts work, and this proves that I have done well to keep quiet! This helps put both the SDs into perspective. I wish people would read, listen, and then think - before shooting off their mouths and making something that is bad, even worse.

What, then, is the next step? Do the police now investigate and try to establish which of the statements is true? Or do they, and we, condemn this man, and forget about it all?! Or, what?

Anonymous said...

after bala made his first SD,he was called to the b'field police station. i strongly believe he was threatened or blackmailed. that's why he had to deny the first SD on the second one within 24 hours. no such man with sanity would have played with law. moreover, he and his family are still missing after the incidence.
kenapa masa najib mengatakan "tidak" terhadap tuduhan2 ke atasnya,polis seperti acuh tak acuh.
manakala apabila anwar mengatakan "tidak" terhadap tuduhan2 ke atas nya,polis turut berkata itu hanya permainan politik meminta simpati??

amoker said...

Sandiwara of an epic proportion. I heard this Bala chap is now missing..

Anyway, seemed that the KL HIlton cigar lady did the same thing when she did a SD to retract her allegation towards the ex-minister in molesting her. 1 day turnaround to come out with a SD , even better than Lingam's. Wonder what happen to this case whom AG has the final report.

Anonymous said...

Now Hishmauddin says to come to Masjid and swear upon the Quran. Will Hishmauddin, KJ, Najib not only swear upon the Quran on no wrong doings on their part and also take a polygraph test to prove their innoncence.
Let the FBI do this and then we will know who areis lying and who is telling the truth.
Our Ministers are said to be rich and we have to know how they amass such richness. Are they all willing to swear upon the Holy Book?

Anonymous said...

THE FIRST SD DOES NOT MAKE ANY SENSE AT ALL !!!


1. Bala is not close at all to either Razak or Najib. Hardly a loyal friend or aide. He was just hired for that particular time.


2. For this reason, very unlikely for Razak to reveal all the "juicy" details to Bala. Especially Malaysia's no.2 "sex life".


3. Razak probably has a lot of interest with Najib, so he must be very careful with what goes out.


4. Bala is paid by Razak, so Razak does not have to justify to Bala by revealing all these "details" in order for Bala to perform his task.


5. So realistically, it's unlikely that Razak should reveal anything to Bala which he "just hired".


6. Looking at the details "revealed by Razak to Bala" , these details then conveniently "confirmed" by Altantuya in the details "revealed by Altantuya to Bala".


7. Its a big mystery to what entails as commission payable to Altantuya on the military procurement. No explanation of her role to deserve the the large amount of money. Her background does not suggest having prior involvement in such deals.


8. The Altantuya case happened in 2006 and from the first SD, it appears that Bala knew a lot of crucial details implicating Najib.


9. THE BIG QUESTION: Shouldn't Bala life been in danger ever since Altantuya was murdered.? Since he too knew all the details and basically a serious risk to Razak and Najib if all the details in the first SD are true? He should have been hiding all this while...


10. Now comes the 2nd SD which retracts the juicy details of the 1st SD. And only now he's in hiding.!!!


11. If 1st SD is true, Bala should be in hiding since 2006.


12. Even, hypothetically, Razak and Najib assured his safety by making Bala promised / declared not to reveal the "details as in 1st SD", and maybe by paying him a large sum of money, would Najib able to sleep at night? Bala can just, from time to time, ask Razak or Najib to top up his bank account.


13. If the above is true, should it be more convenient for whomever that killed Altantuya, might as well kill Bala in one go.? No more risk.


14. So now, whom is Bala hiding from? after releasing the 2nd SD.


15. Najib is unlikely, otherwise he would have been hiding since 2006.

16. I'm pretty sure Bala is not hiding in the Turkish embassy.

MM

walk_on_water said...

So at most it is circumstantial. Destroy witness's credibility and it is not worth anything.

Old Fart said...

A number of statements in the first declaration, now retracted by the second SD, were beneficial to Razak Baginda's case. He could provide corroboration. Obviously they would implicate his good friend Najib.

Every day that Razak Baginda remains silent only adds to the notion that the entire legal case so far is nothing but sandiwara.

Razak Baginda can provide the necessary corroboration and get himself out of prison a lot more sooner. Yet he keeps quiet. Does he already know that the defense is not going to be called, so nothing to worry? After all he gets to keep his hundreds of millions and Najib becoming PM would have been everything he would have been looking forward to. Maybe the sacrifices so far have been worth it. What more, there is now far less complaining from his wife too.

Anonymous said...

It is very difficult to know what is behind the scene. Inoder to open the curtian, the best things to do now is to arrange for all those involve to got for a LIE DETECTOR test by a competent authority. Now I dare them to declare that they are willing to undergo the test.