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Tuesday, July 22, 2008

See No Evil, Speak No Evil

See No Evil, Speak No Evil

If the Anwar-Shabery debate was anything to go by, it is apparent that the Government continues to deal with things the way it has always done: by burying its head in the sand.

In his enthusiasm to point us at the global fuel crisis, Shabery Cheek appears to have blinded himself to the obvious flaws in the system the Government created and maintains. I waited in vain for him to cut out Anwar Ibrahim’s feet from under him by tactically acknowledging that long standing corruption had left us less capable of dealing with the crisis on hand for having robbed us of the invaluable resources needed for a more gradual and managed dismantling of subsidies.

But then, perhaps I should not single him out for blame. His perspective, that of the “there’s nothing wrong with the way we do things” variety, is one that appears to be shared by fellow members of the cabinet. Speaking of the concerns expressed by the US State Department on the current investigations into Anwar Ibrahim, Foreign Minister Datuk Seri Dr Rais Yatim is reported as having defended the application of the Rule of Law in this country.

Dr Rais had indicated that he wished to enter into a debate on the subject with foreign critics. I am very much a Malaysian and do not as such qualify. I am certain however that the Minister will not begrudge me a round or two in the ring with him.

Allow me to start with a few concessions. I concede that there is in place a written constitution that is the supreme law. I also conceded that the primary institutions of a system of administration of justice – the Judiciary, the legal profession and the police force – exist, as do laws that are enacted by elected representatives in legislature. Additionally, I agree that provision is made for the appointment of judges, prosecutors and a host of other officers who man the system.

But then, so do Zimbabwe and a number of countries in which the rule of law has collapsed. Burma in fact only recently unveiled a sparkling, bright constitution filled to the brim with the requisite bells and whistles.

The point here is that the mere existence of the institutions that make up a system of administration of justice does not in itself give rise to the Rule of Law. That only exists when it can be said with certainty that the system by which justice is administered is one that is competent, of integrity and independent. The Minister might say that we have such a system. His fellow minister, the Home Affairs Minister might say it too. Their views, as relevant as they may be, are not definitive.

Neither is that of the Prime Minister, the Foreign Minister, the Home Minister or the de facto Law Minister or the entire cabinet. It would not matter even if they assembled at the top of the Twin Towers along with every other Barisan Nasional member of parliament and proclaimed it to the heavens. The only relevant point of view is that of the rakyat. As the Minister fully appreciates, a system is only effective if it inspires public confidence. Like justice, public confidence is in part a question of perception.

The question is whether the Malaysian system inspires confidence. I think not and the average Malaysian cannot be blamed for thinking it.

Through the last decade or so, we have heard from authoritative personalities of the low level of public confidence in the Judiciary. The events that resulted in the Lingam Royal Commission of Enquiry and its damning conclusions and recommendations merely reinforced belief that all was not well in the Judiciary and that something had to be done. The Government has recently acknowledged the need to appoint the best persons for the job and the need for reform to allow for that.

Where the police force is concerned, a separate Royal Commission of Enquiry had found that abuses of power and corruption was sufficiently widespread for it to make numerous recommendations including the establishment of an Independent Police Complaints And Misconduct Commission. No significant changes have been made since the recommendations and the IPCMC remains a concept on the proverbial drawing board. No basis for increased confidence there, even if that was possible bearing in mind police actions over the last year or so.

The Attorney General’s Chambers has not been spared. Questions had been raised of the Attorney General’s conduct when he was second chair in the prosecution of Anwar Ibrahim in 1998. The underlying issues were not raised, a matter that the Federal Court had reason to take note of. Since then the issues have come up again, this time as the subject of investigations by the Anti-Corruption Agency. This and recent decisions taken by the Attorney General have raised eyebrows, Malaysians being very aware that like the Inspector General of Police, the Attorney General is dependent on the largesse of the Prime Minister.

The public image of these institutions has taken a serious beating, so much so that it would not be unreasonable for the average Malaysian to believe that the entire system needs an overhaul and until that is done the system will not work as it is meant to. With draconian laws such as the Internal Security Act and the Official Secrets Act in active use, it would not take much for one to believe equally that the law is an instrument of the Government and that the Government is above the law.

And that, as the Minister undoubtedly appreciates, is Rule By Law. Over to you, Dr Rais.

(Malay Mail; 22nd July 2008)



Samuel Goh Kim Eng said...

Only good laws will display fair justice
That all people long for beyond mere notice
Simple enough to understand even for a law novice
Such laws are what we need to be put into practice

(C) Samuel Goh Kim Eng - 220708
Tue. 22nd July 2008.

Unknown said...

haha, so how is the lingam case now?
and the altantuya case?
seems like the government has no interest in restoring the justice system and the clear name of our future PM, najis.

hmmm... will malaysian let the country go down with the evil umno...

Anonymous said...

As ever u are always right on the dot. Strange how i was just thinking the other day that the VERY fabric of society appears to have broken down..if citizens can no longer put their simple trust and faith in the Police, let alone the Judiciary, it is a very SAD situation that we are in. I wonder what it takes to inspire confidence in these institutions once again...So much energy needs to be expended when u want to make a REVERSAL! may u be blessed for the work u do.

liumx said...

And of course, you left out the hear no evil clause.

When one said he want to hear the truth, that doest not equate to he want to hear the evil, while evil is a very peculiar phenomenon. So you call corruption evil? Well, our spirit and material self is corrupting any other moment, with certain establishment, or we will not be. Change is inevitable, is either we change for better or change for worse.

I have been pondering on this corruption issue for long, the naming of corruption is negative, we dislike negative, but yet again the dark side won't let us live in peace. Even the wise old Plato asked whether corruptible is good.

Who are "we" anyway? Do you hear me loud and clear? I have put it in an very esoteric sense that it's almost a riddle to myself, never mind if you can't read my mind, since many including myself can't neither.

Change is the only way to advance.

Anonymous said...

that this government is willing to acknowledge at all that our system is very faulty is a brave move, which would never have been possible under the previous one. It's regrettable the silence that has been put to them, pressure from people with a vested interest in things remaining unchanged. Also the recent the previous PM started his tirade of attack against the current one, because the latter has opened the can of worms with his name written all over it and willing to acknowledge that things were horribly wrong.

Old Fart said...

So if I go by the standards of the Malaysian BN politicians can I claim that since I have a complete set of paint brushes, paints, canvass, a painter's chair even and all the paraphernelia artists use to paint, taht I also can be like Leonardo Da Vinci or Picaso? (But really, I can't draw for shit and my had writing is worse than anything you might have seen)

Unknown said...

Singapura dapat kawasan perairan lagi (nak claim kawasan lebih besar)...
si bangang rais yatim patut naik gunung lepas tu terjun..
Apa ke jadah win-win situation

Anonymous said...

Whatever you address yourselves, will come back to square, we are Malaysian.

For this, I encourage all Malaysians, especially Malay brothers and sisters, to participate in Dr. Hsu’s Forum,

Dr. Hsu, a Gerakan member, is Bangsa Malaysia of the ‘truest’ sense. Whether you agree or disagree, I believe in diversity, ‘DIVERSITY IS OUR STRENGTH’ fellow Malaysians.

flyer168 said...

Dear Mailk,

We must ALL focus on this....

“Beyond Reasonable Doubt”

“In a criminal trial the burden is upon the PROSECUTION to PROVE the guilt of the accused “Beyond any reasonable doubt”.

This is where “Juries” exist in many nations where “Juries are DIRECTED that unless the EVIDENCE makes them SATISFIED so they are sure of guilt, their VERDICT must be one of NOT GUILTY.”

Malaysia abolished the Jury system.


Is it the Truth ???

Who really NEEDS the DNA ????

WHY ????

Who will GAIN ????

At WHOSE expense ????

Is it inline with the CORRECT Rule of Law - Beyond any REASONABLE doubt ????

That is why all their charges on YM RPK, DSAI, cannot hold up in the Court of Law - Defective and in Bad Faith.

These are all Deviations from the real issue "the unneccessary murder of an innocent Mongolian young mother"

A learned & Prominent good friend of mine sent this interesting article …which I hope you will find useful...


“DNA isn’t the answer. Often it’s the problem.”

The double helix genetic compilation known as DNA has become a double conundrum for rape victims in seeking justice in the courtroom. The problem stems from the public’s fascination with DNA and crime.

dna testing 180708 - It’s commonly referred to as the ‘CSI effect’ so named for the trio of popular shows on CBS that solve crimes based on the tiniest fragment of DNA and scientific evidence.

“People expect DNA or scientific evidence in every case and the reality is it doesn’t exist in most cases,” Sangamon County Assistant State’s Attorney Sheryl Essenburg said. “It’s very much the exception.”

In fact, the Federal Bureau of Investigation reports that DNA is available in only 10-20 percent of cases. Therefore, DNA isn’t the silver bullet the general public expects and often it’s not even available to be fired.

However, its presence or lack thereof is still a key issue at most jury trials. The jury expects DNA or scientific evidence, and the prosecution must educate the jury during each trial on the hazards of over anticipating the importance of science.

“It’s a hurdle that in every jury trial we have to address, especially in child sexual abuse cases,” Essenburg said.

Its presence is becoming an issue in adult cases as well. The case involving the Duke lacrosse team became a national debate when 46 of 47 team members were required to submit to DNA testing. When DNA matches were not found, the defense quickly jumped to the conclusion that a rape hadn’t occurred.

“That leap is a misunderstanding of what DNA can and can’t prove,” said Michelle Anderson, a law professor at Villanova University. “DNA can prove sex occurred. DNA can’t prove that sex didn’t occur.”

The DNA conundrum adds to the obstacles against victims achieving justice in the courtroom. It falls in the same category as the beliefs that victims of sexual assault are always physically injured during the assault.

“This focus on DNA evidence seems to be in the historical line with the requirement for physical force,” Anderson said. “Rape cases are frequently low priority for prosecutors. They see them as difficult to obtain a conviction. Prosecutors are more concerned about their won-loss record than serving the victim of rape in a community.

What is true across different jurisdictions is that prosecutors and police exercise particular scrutiny with rape victims that is historically excessive and today continues to be excessive.”

Why isn’t DNA there?

ambulance medical service 100907 - patient DNA might not be found in sexual assaults for a variety of reasons. Despite what television portrays, DNA and other scientific evidence isn’t waiting patiently to be snatched up and raced away for testing by a lab technician. The majority of victims do not report to the hospital so DNA evidence isn’t collected. And if a victim reports to a hospital, time can alter the findings.

“DNA is only available when it has been reported after a few hours, not just DNA but any scientific evidence,” Essenburg said.

Even if DNA is available, it can also be compromised throughout the chain of evidence, which often ventures into weeks and months instead of hours.

“DNA evidence degrades rapidly,” Anderson said. “It is difficult to contain efficiently and handle effectively.”

Also, there are simple reasons for the absence of DNA. The rapist may not have ejaculated inside or on the body of the victim. The rapist may not have ejaculated at all. The assailant may have used a condom during the attack. The assailant may have used an object to assault the victim.

“People don’t understand that. They think rape is always a sexual act when it’s often about power and controlling someone else,” Anderson said.

Stranger vs. Acquaintance

The greatest benefit of DNA to rape victims comes in stranger rape cases. DNA samples can be used to match with convicted offenders or help string together evidence in a serial rape case. This benefit with DNA and stranger cases produces the unintended consequence of strengthening the rape myth that all rapes are committed by strangers. In fact, only approximately 20 percent of rape cases are stranger cases.

nipah pig farmer case govt court case 150708 02 - “In general, DNA evidence is going to be focused on stranger rape cases, CSI focuses on stranger rape cases. National news focuses on stranger rape cases,” Anderson said. “We have a societal obsession with the man that strikes from behind a bush and drags the victim away to a dark alley.”

If DNA is found in acquaintance rape, the assailant simply states that the sex was consensual, negating the DNA evidence.

The impact of DNA differs greatly depending on the age of the victim. If the victim is a child, DNA evidence can be especially beneficial in the courtroom. However, it’s rare that DNA is involved because the reality is that most child victims wait several days or years to inform law enforcement about the sexual violence. Essenburg has never tried a child sexual abuse case that included DNA findings.

“If it’s there, particularly in a child case, it’s fabulous,” Essenburg said. “In an adult victim case, if it’s there it doesn’t eliminate the issue of consent.”

And consent still rattles the cage of most juries. If DNA is found, the assailant claims consensual sex. If DNA isn’t found, the assailant claims there wasn’t an assault. It comes out to the assailant’s advantage in most cases.

“Some people have the assumption that DNA evidence is going to be there and if it isn’t, people assume that the victim is lying about the case,”

Anderson said.

Deciding who is speaking the truth in rape cases is at the crux of most rape verdicts.

Words vs. Science

muslim islam malays 250806 women - Perhaps the most disheartening aspect of the DNA evidence is that it is another method in which the voice of victims can be silenced in the courtroom.

“Victim testimony in rape cases has never been a slam dunk for women,”

Anderson said.

“Historically prosecutors want bruises, broken bones, evidence of physical force. The narrative of he said, she said is all about rape cases. Her voice has never meant as much.”

In a time when too few rape cases are prosecuted, the lack of DNA can provide an excuse for not prosecuting a case. Prosecutors and the public need to remember that rape cases were tried prior to DNA evidence and still need to be tried with or without DNA support.

It’s important to remember that DNA is a single part of the evidence collection. If the victim goes to the hospital, a multitude of evidence is collected during the forensic medical examination (rape kit) that is performed by medical personnel.

“The media so plays up the scientific wonder that some people forget that it is who you believe,” Essenburg said. “We have to remember as prosecutors and jurors need to understand that it’s going to be there in some cases and in other cases it’s not going to be there.”

As usual in discussing rape or myths about rape, education will play a key factor in turning the tide about what DNA can and can’t do for rape victims.

“The work to publicise DNA evidence is really helpful but it’s not going to have the impact that CSI will,” Anderson said. “People need to challenge the shows … They need to put pressure on the popular shows to talk about these kinds of issues.”

Pressure to understand the good and the bad about DNA evidence and its affect on rape victims.” unquote.

SEAN BLACK works for the Illinois Coalition Against Sexual Assault
(ICASA), a not-for-profit corporation of 33 community-based sexual assault crisis centers working together to end sexual violence in Illinois communities.