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