Fruit Of The Poisonous Tree

Fruit of the poisonous tree

In much of the commentary thus far on the sudden death of Kugan Ananthan while in police custody, the focus has been on the need for greater control and supervision of the police to ensure the accountability and transparency so crucial to the curbing of abuses of power. I too have written elsewhere that the Government’s refusal to establish the proposed Independent Police Complaints and Misconduct Commission (IPCMC) is impeding its ability to deal with the attitudes and practices that have resulted in a discomforting prevalence of sudden deaths in custody.

That this is an important aspect of any meaningful and coherent effort to curb abuses of power by the police cannot be emphasised enough. The issue is really a systemic one; it is the system that is failing Malaysians and allowing for the kind of horrific events that we have been made to bear witness to far too often this last decade.

Having said that, other more immediate solutions or deterrents are no less important. A transparent investigation into the death and due prosecution of all those involved to the fullest extent of the law would serve the interest of Kugan’s family and the wider public by ensuring that justice is not only done but is also seen to be done. This would go far in helping staunch the hemorrhage of public confidence in the institution. Immediate disciplinary action would reinforce the gains.

In the same vein, there is much value in seeking to understand what it is that drives those abuses that lead to injuries or even deaths in custody.

It is readily apparent that there is no legal basis for the use of force by police officers during interrogation. If a police officer uses force he is in fact assaulting and battering an individual. In doing so, he is committing a range of crimes as well as acting wrongfully in a way that would justify a claim for damages. The question of necessary and proportional force does not arise in this sort of situation unlike in situations where police officers are confronted with the risk of injury to themselves unless appropriate defensive action is taken such as may be necessary during efforts to quell riots for instance.

Notwithstanding the foregoing being a cardinal principle of policing beatings happen; sometimes to within an inch of the suspect’s life, sometimes at the cost of that life. The question is, sadism aside, why would the police officers concerned expose themselves to potential prosecutions and damages claims.

A belief in their immunity goes some way to explaining the mindset. If police officers get away with such conduct over a period of time without reproach or reprisal, they will over time form the view that their behaviour is not only acceptable it is expected. This does not however explain what it is that prompts such conduct in the first place.

I believe the answer lies in the desire of the police officer to secure a conviction. We cannot discount the fact that in constantly being confronted by criminal acts and their consequences and having to deal with a justice system that may seem to more concerned with rules and procedures rather than justice, the police officer will over time develop a single-minded approach to getting his man. He does not care about how he gets the evidence as much as he does about getting the evidence and the conviction it will lead to. In the mind of the police officer, in doing so he is putting away a bad person, making the world a safer place for it and paving the way for promotion.

While noble in intention the approach leaves much to be desired, particularly when the end result is a custodial death. The fault may however lie in part on a system of evidence that defines itself by relevancy. All evidence is admissible to trial as long as it is relevant. As long as it is not a confession that is in issue (the law requires that to be voluntary) it does not matter that the evidence was the by-product of brutalizing that may in itself be the subject of criminal prosecution.

A solution may as such lie in a rethinking of those principles pertaining to the admissibility of evidence. The exclusionary rule implemented in the courts of the United States is a model worth considering. That rule renders evidence inadmissible if the means by which it was obtained is illegal, such evidence being the “fruit of the poisonous tree”. It goes a long way to remove the incentive to commit the kind of conduct under discussion.

Though in many ways, the refashioning of admissibility principles is really a matter for Parliament, the Malaysian courts have a limited discretion that can be wielded in such a way so as to compel respect for those constitutional guarantees that such conduct violates. This most recent tragedy is reason enough for the courts to start considering the possibilities.

(Malay Mail; 3rd February 2009)

MIS

No ISA For Ahmad Ismail

The call by Gerakan Wanita to have Ahmad Ismail detained under the Internal Security Act must not be acceded to.

Judging by media reports of the events in Penang at his latest press conference, yesterday what Ahmad Ismail did and said are not easily reconciled nor accepted. I found him and what he said to be offensive. People I know felt the same way, some were also made fearful and anxious, though whether about Ahmad Ismail or whether UMNO was going to use this to its advantage it is hard to say.

Having said that, what Ahmad Ismail did and said are not grounds for a detention under the ISA. Nothing can be. The law is draconian, inhumane and wholly against constitutional freedoms that are central to our existence as Malaysians in a modern, democratic Malaysia.

If Ahmad Ismail has done wrong, and I believe that enough has been said and done to warrant at the very least an investigation into incitement crimes under the Penal Code, then charge him for his crime and give him his day in court. He, like everyone else in this country, deserves that. As repulsive as we may find him or his values or his politics, he is innocent until proven guilty.

Investigations underway are apparently into an offence under the Sedition Act. I have written elsewhere that the offence of sedition, as defined under the Sedition Act, is in my view unconstitutional for contravening the freedom of expression guaranteed under the Federal Constitution. Though not absolute, the constitution limits incursions by legislature to those that are necessary in the interests of democracy and proportional to the wrong sought to be curbed. The Sedition Act does far more.

Charge Ahmad Ismail, let bail be opposed if it must, but do not detain him under the ISA.

MIS

Why The Unholy Haste?

Many, including the opposition, are troubled by the unholy haste with which the DNA Identification Bill is being rushed through parliament. Their complaint is founded on two concerns. First, that the bill is not well thought through and substantially erodes fundamental safeguards intended for an accused under the criminal justice system. Secondly, that it appears that the principal aim of the exercise to target Anwar Ibrahim. To that end, he may be its first casualty.

That the timing is convenient cannot be disputed. It not unreasonably lends to an inference that the Government, and by that I mean the Barisan Nasional and more particularly UMNO, hope to be able to harness the significant prosecutorial advantage that the proposed statute offers to its own political benefit. However, in as much as one may question the propriety or even the morality of the decision to table the bill in the way it has been and the apparent complicity of the Speaker in that process, there is no legal obstacle to their doing so. The Speaker controls parliamentary process and the Barisan Nasional has a majority in parliament.

As such, if the Barisan Nasional has its way, and it appears that it will, the bill will be law very soon. This does not however necessarily mean that the law is constitutional. I do not think it is for rendering the right of an accused to a fair trial predicated on the presumption of innocence illusory. In this, I share the reservations so succinctly expressed by Mr Edmund Bon, Chairman of the Bar Council’s Human Rights Sub-Committee. These were set out in Malaysiakini (DNA Bill tabled for second reading; August 26th 2008) and I take the liberty of setting them out here:

• There are no safeguards in relation to the storage and testing of DNA samples and for DNA profiles as well as how they are to be handled. No regulations were prescribed.

• No provision for the accused to do his or her own independent DNA test which means that the accused have no way of testing the authenticity of the DNA sample claimed to be his or hers.

• Categories of persons from whom samples may be taken from are to arbitrary and wide meaning that regardless of whether or not one is being investigated for an offence, DNA sample can be extracted from them.

• Criteria and power safeguards are lacking in relation to suspected and convicted persons rendering it susceptible to manipulation

• Privacy rights is illusory and those who refuse to provide samples will be subject to punishment and criminalisation

• The bill would mean that those who have not been charged or convicted prior to the passing of the bill would be affected by it

• Destruction of samples should not only be permissive but mandatory after a certain period of time as this provision will leave the head of the DNA databank discretionary powers to do anything with it.

• Clause 18 of the bill gives no assurance that the extracted DNA sample is not to be used and stored somewhere else after it has been used for a particular case.

• Clause 24 of the bill states that the extracted samples are conclusive evidence which means that the court and the accused have no authority to question the process of the DNA profiling.

• Without proper DNA data protection laws, the power to export DNA samples to foreign law agencies should be curtailed all together.

I do not take issue with the need for law on the subject, many other jurisdictions have legislation in place to allow for DNA profiling and testing. Any law introduced to achieve the stated aims must however not undermine the rights of an accused person. The proposed law regrettably does exactly that. As noted by Tommy Thomas, a senior constitutional lawyer, in an interview with Aniza Damis of the New Straits Times (Spotlight: CSI Malaysian style; 24th August 2008) the proposed law in effect allows for a reversal of the presumption of innocence. It will compel an accused person to prove his innocence by battling the purported conclusiveness of evidence collected. These are serious concerns that warrant closer scrutiny.

In the current climate, the fact of judicial scrutiny being brought to bear is not sufficient to assuage these very grave reservations. The trial courts will apply the law as enacted and, judging by recent precedents, will be compelled to take an unduly narrow view of the freedom of an individual to a fair trial in these circumstances on the basis of parliamentary, as opposed to constitutional, supremacy. Added to this is the fact that serious concerns have arisen as to the independence of the Judiciary, particularly in light of the conclusions of the Lingam Commission of Enquiry. Confidence in the judiciary is at an all time low and measures aimed at restoring confidence are still very much on the drawing board.

The provisions of the proposed law also give significant powers to the police, an institution whose integrity was brought into serious question by the findings of two prior Royal Commission of Enquiry, one pertaining to an assault on Anwar Ibrahim. As with the Judiciary, recommended measures are still merely a matter of rhetoric.

Given that the implementation of the measures in the proposed law are left to institutions which, as a matter of public record, have been shown to be amongst other things open to abuses of power, including on matters pertaining to Anwar Ibrahim, it is not unsurprising that many fear the worst where the trial of Anwar Ibrahim is concerned. Circumstance lends legitimacy to the fears being expressed.

For all these reasons, it would be a matter of common sense for the Government to stay its hand on the bill to allow for the more comprehensive consideration that so many stakeholders are calling for as well as implementing measures aimed at restoring confidence in these institutions. The Government has, after all, already waited some seven years and, surely, a while longer will not cause any further harm. Conversely, further damage will be done to the Barisan; its already low levels of support may be eroded further by what is being perceived as a display of belligerence and unfairness.

MIS

Did The Boy Cry "Wolf"?

I am not partial to conspiracy theories; they tend to blur the lines between fact and fiction even as they obscure the paths to the truth.

It is for that reason that I have veered away from claiming that the events leading to the proclaiming by the Government, through its agents, that Anwar Ibrahim had committed sodomy and the events since have been aspects of a conspiracy aimed at undermining Anwar Ibrahim politically and removing him as a threat.

Until now, that is. The events of the last two days have made it impossible to preclude the possibility.

The revelation that a doctor had examined Saiful Bukhari prior to his having lodged the police report and found there to have been no indications of his having been sodomized are in themselves sufficient to put into question the validity of actions taken by the police to date. Any possible doubt as to this conclusion was put to rest by the manner in which the police dealt with the revelation of the medical report.

The New Straits Times, reported yesterday that:

“Police have dismissed reports on the Internet that a private hospital doctor had not found any medical evidence of sodomy by Datuk Seri Anwar Ibrahim’s accuser as another attempt to sabotage police investigations.

“Deputy Inspector-General of Police Tan Sri Ismail Omar said the reports were also aimed at confusing the people. Police, he said, were considering investigating the news website and a blog over their reports, which referred to a medical report allegedly issued by Pusrawi Hospital on Jalan Tun Razak.

"The news report claimed that there was no evidence that Anwar’s former aide Mohd Saiful Bukhari Azlan had been sodomised. However, Ismail declined to comment on the medical report itself, saying investigations were ongoing.”

From this, it would seem that the position of the police on this is NOT that the report exonerated Anwar Ibrahim but RATHER that the news portal and the blogger (I presume these to be Malaysiakini and Raja Petra respectively since they broke the story first) conspired to sabotage on-going investigations by fabricating a story about a medical report that makes it evident that Anwar Ibrahim was not sodomized so as to confuse the public.

But wait.

The Deputy IGP declined to comment on the medical report. That and the fact that there has been no denial of the existence of such a report by the hospital concerned, point to such a report having been made. If that were the case, what sabotage could there be? Could the Deputy IGP have been concerned about the image of the force, the possible perception that it had been directed to ends that were not entirely proper? As things stood yesterday, prior to his statement to the New Strait Times, there was no reason to conclude that the police force had acted improperly as it was possible that the police knew nothing about the report and had pursued a line of investigation without having been appraised of all the relevant facts.

But then, the news report also confirms that a statement was taken from the doctor concerned, making it evident that the police knew about the medical report. This is something the Deputy IGP would surely have known.

So, what sabotage was there? This was a strong accusation, suggesting active interference with investigations with a view to derailing them. But if there was a medical report and it says what it does, and this is the truth, would that not facilitate investigations rather than impede them?

Why sabotage? The use of the word is disconcerting. As is the fact that the doctor has not been available for comment. The parallels with the sudden unavailability of Private Investigator Balasubramaniam after his sudden u-turn are worrying. Even if direct pressure has not been brought to bear on these individuals, it is manifest that the individuals concerned are sufficiently fearful of reprisal so as to have disappeared from public life. Above all, this points to things not being as they should be.

As things stand, it would seem there is no basis to form the view that Anwar Ibrahim sodomized Saiful Bukhari. The existence of the medical report puts into doubt the credibility of his accusation. The fact that Anwar Ibrahim has not been charged to date lends credence to this conclusion bearing in mind that the decision to prosecute can only be made if there is sufficient evidence for a court to convict the accused if that evidence was not rebutted by the accused (a prima facie case).

And if it is true that Saiful Bukhari was not sodomized, it is equally important that Malaysians be made aware of what prompted his accusation. The circumstances are ambiguous and suggest a range of possible motivations, range from a desire for attention on the part of Saiful Bukhari to the more sinister possibility of a full fledged conspiracy.

Whatever the case, in view of the possibility that the tremendous resources harnessed for the investigation into Anwar Ibrahim had been wasted on an exercise in futility, it would seem that there is sufficient basis for the police to commence investigation into these motivations, if only to attempt to restore confidence in the integrity of the force.

MIS

(Read also Tommy Thomas' incisive and thoughtful analysis on the impact of a second prosecution of Anwar Ibrahim for sodomy on Malaysiakini here)

Why Has Anwar Not Been Charged?

I have been reading material that suggests that the publicity on the police report against Anwar Ibrahim is having an impact, even within the Pakatan Rakyat. It would seem that some in PAS are concerned enough to have allowed for discussions with UMNO to have become, or be seen to have become, more nuanced. Karim Raslan suggests that Anwar Ibrahim’s refusal to swear on the Quran is making enough people skeptical

I am not sure how correct this is. My sense, and I have written this elsewhere, is that enough people see the current events as being a politically driven, opportunistic or otherwise, initiative aimed at weakening Anwar Ibrahim and the Pakatan Rakyat.

With all of this and more, the burning question for me is why is it that much drama later - from the highly publicized police report by the alleged victim to Anwar seeking refuge with the Turkish Ambassador to his medical examination – Anwar Ibrahim has as yet to be charged?
Considering the extent of the insistence by the Government as to there having been a basis for all that has happened, most importantly the taking into custody of Anwar Ibrahim, and the tremendous publicity given to almost every dimension of the entire sordid affair, there would be enough for the Public Prosecutor (the Attorney General) to have preferred charges already.

That is what I would have done if I was the person making the decisions (I can fantasize, small pleasures). I would have charged Anwar Ibrahim and asked for an early trial of the matter seeing as how Anwar Ibrahim, and everything that happens to him, is very much in the public interest. I would then have marshaled the evidence and presented it during the prosecution stage of the case. That would have served all interests, legal and political.

So, why hasn’t it been done? Could it be there that there is not enough to go to court on? Is the investigation aimed more at fishing than it is at forming a basis for a reasoned decision, one way or the other? Or could it be that the trial is already underway in the court of public opinion.

Judging by topical commentary, that seems to be the case. Everyone is going to town, it would seem, on Anwar Ibrahim. And, as much as Anwar Ibrahim may not draw the support of some, that is not fair. He is entitled to judged by way of a fair trial and not by way of a media frenzy.

As things stand, Anwar Ibrahim is innocent. He was acquitted of the earlier charge of sodomy. In law there is no question of factual guilt as opposed to legal guilt. His acquittal means that he was not guilty and the prosecution did not prove its case, no matter what some might say. As for the current allegations, they remain just that: allegations. Anwar Ibrahim has not even been charged, how can any one of us form the view that he did anything. The law applies equally to all.

Now can we get back to thinking about running the country ?

MIS

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

A Game Of High Stakes Poker?

A Game Of High Stakes Poker?

Whether the unprecedented SAPP motion of no confidence is going to be tabled for debate appears to have been edged out as the question of the hour by whether there is any substance in Raja Petra’s incendiary Statutory Declaration on the killing of Altantuya that hit the Internet late last week.

The Statutory Declaration, a sworn statement under law which makes a false statement a criminal offence, alleges amongst other things that Raja Petra was reliably informed that a very prominent VVIP together with two other persons were at the scene of the crime, the former witnessing the placing of explosives by one of the two others. He further alleges that the Prime Minister received a written report of the matter from Military Intelligence.

Needless to say, there is some measure of incredulity on the part of some who suggest that Raja Petra of ‘Malaysia-Today’ fame has a tendency towards sensationalism. They question the manner in which the information was made public and the fact that Raja Petra did not lodge a police report. Others have been less quick to brush aside the matter, more confident of Raja Petra having a foundation for the Declaration. A very public figure whose advocacy in the run up to the last General Election is credited by many as one the swing factors, he is already facing a sedition charge for an Internet publication on the Altantuya trial. And all things said and done, a statutory declaration is a very different thing from commentary on Malaysia Today.

Is Raja Petra playing a game of high-stakes poker? That is the million-dollar question and there is no apparent answer.

In the Declaration, Raja Petra states that its purpose is to allow the police to conduct a proper and thorough investigation to allow the truth to emerge. The persons he has identified have not been implicated nor called as witnesses in the on-going murder trial. They have as yet to issue any public denials, seemingly choosing to remain silent. Surprisingly, the Prime Minister has chosen to do so as well, one would think circumstance compel him at the very least to take a public stand on whether Military Intelligence did give him a report.

If founded, the apparent lack of investigation into the matters raise doubts as to not only the culpability of the accused but of whether they have been accorded their full “due-process” rights in law. They also equally point to the possibility of those actually or equally responsible having been let off free. These bring into question the effectiveness and integrity of the criminal justice system and further erode the already seriously undermined administration of justice. The Declaration is as such a matter of great public importance.

Whatever the case, it is imperative that the Government must take appropriate steps to not only look into the matter fairly and thoroughly, but also be seen to be doing so in a transparent manner.

The machinery for an investigation seems to have been fired up. However, in light of a media report that the Attorney General’s Chambers has lodged a police report against Raja Petra, apparently for criminal defamation, I am concerned that the focus of the exercise will be Raja Petra rather than the substance of his allegations in a manner reminiscent of the Irene Fernandez affair. In Fernandez’s case, a defamation report was lodged against her after she made public shocking revelations about goings-ons at the Semenyih detention facility, then under the control of the Royal Malaysia Police. This resulted in Fernandez being prosecuted and ultimately convicted. Significantly, investigations into the events at Semenyih were incidental to the only formal investigations that took place, the investigation for criminal defamation.

I have grave reservations about the Attorney General’s Chambers having lodged the police report. It is more usually the person aggrieved, especially where defamation is concerned, that lodges the report. In this case, it should have been the persons identified in the Statutory Declaration, if at all. Furthermore, the Attorney General is the legal advisor to the Government and serves its interests and not those of individuals, notwithstanding their having a connection with Government.

It is also mystifying how the Attorney General could have formed the view that the Declaration was defamatory before apparently even looking into the allegations, more so in light of the Inspector General of Police declaring that the police would be calling up the three individuals named in the Declaration. One would have thought that the Attorney General would have considered the matter as whole first before directing the lodging of the police report. This and the fact of the Attorney General’s Chambers not having lodged a parallel report as to the fact of the allegations are suggestive of a presupposition that the declaration is false.

If so, this may impede the objective enquiry called for by the situation. This would be wrong.

After March 8th this year, the Prime Minister in effect said that the Government had to listen to the rakyat more. The rakyat has demanded accountability and transparency. The murkiness surrounding the killing of Altantuya has long been and continues to be the subject of public discussion in part due to her father’s tireless campaign for nothing more than the bringing to book of the killers of his daughter. The fact of his having to do so is an indictment against this nation.

Let the truth emerge. One way or the other, let it out.

(Malay Mail; 24th June 2008)

MIS

Update: The PM and DPM have since denied the truth of the Statutory Declaration