Monday, November 24, 2008

RAZAK’S ACQUITTAL –ABSENCE OF EVIDENCE IS NOT EVIDENCE OF ABSENCE

BY : MOHAMED HANIPA MAIDIN

The BN’s government has done many stupid things. But its decision not to appeal on Razak Baginda’s acquittal is, no doubt, a stupidity of the highest order.

Whatever reasons advanced by the government in not filing an appeal it has difficulties to convince the people .

As far as the men on the street are concerned Altantuya’s bloody tragedy began with Razak. Without his intimate involvement with the late Altantuya no body knew who Altantuya was. Whether Najib also knew Altantuya is a matter of speculation. Nevertheless since Razak has been close to Najib it is hard to dismiss the speculation that Najib might also know her.

Without Altantuya’s harassment, Razak had no reasons to engage the service of Sirul and Azilah. Why should Sirul and Azilah came into picture if Razak had not contacted them. And why should Razak not have contacted Sirul and Azilah when he was consistently harassed by Altantuya. Razak needed a help to get rid of Altantuya and he got these two gentlemen. One of them, according to Razak’s affidavit, proudly confessed to him that he had previously terminated the life of six or more human beings - a malaysian version of Terminator !!!

The decision of the AG not to file an appeal on Razak ‘s acquittal is definitely not a wise decision. It has left many questions unanswered.

The refusal to appeal implies that the decision of the high court’s decision was so strong so much so there is no room for the appellate interference. If this is the excuse given by the government our short answer will be : do not insult our intelligent. Since when the AG could be easily convinced by a decision of the court of the first instance in a crime of murder. Since when an appeal has become an expensive enterprise for the AG. If Haneef Basri’s acquittal in Norita’s murder prompted the AG to appeal against such an acquittal, why was Razak’s case different. Why is Razak given a preferential treatment vis a vis other murder cases.

Altantuya’s murder was not a run of the mill crime. The fact that C4 explosives were used in the murder signifies the ugly picture of the crime. By using C4 explosives, the crime has a strong elements of washing away the evidence. Apart from C4, the crime also involved a powerful individual who has a close and strong connection with the present Deputy Prime Minister.

The reputation and the integrity of our administration of justice has been closely attached to this trial. If the prosecution of Razak brought a dim of hope to our justice system, the government’s decision not to file an appeal has thrown that little hope into the drain. The government’s decision has once again brought our justice system into disrepute. It seems that our justice system will forever become a laughing stock.

The people has the right to know the actual and truthful reasons behind the decision not to appeal. Is it because the decision of the high court judge was so powerful ? Or is the powerful pressure by the ruling elite led to the decision of the AG not to appeal ? You don’t have to earn a degree to come to a conclusion that the latter was definitely the factor which prompted the AG not to proceed with the appeal.

Legal or political reasons dictate Razak should not be easily let off merely by a decision of one high court judge let alone an inexperienced judge. In a serious case of this nature, the judgment of the high court judge must face a detailed scrutiny from the appellate court. Under the present law the prosecution is given a double chance of filing an appeal that is it may appeal to the court of appeal and if it still loses in the court of appeal it has a second chance of filing an appeal to the federal court.

When the government decided to press a charge against Razak it presumably had strong evidence preceded by a comprehensive, detailed and thorough investigations. Be that as it may once it decided to prosecute Razak it would proceed until the end meaning that it would proceed until the matter reach the final gatekeeper i.e the apex court. Do not tell us just because the high court judge decided Razak was not guilty such a decision was exceptionally strong thus the prospect of such a decision being overturned by the appellate court is too slim.

When the prosecution decided to charge Razak it , in actual fact, represented the people. Thus the people earn a right to demand a first class prosecution. A first class prosecution entails a very detailed and comprehensive preparation. A detailed preparation means all possible angles be sufficiently covered by the prosecution team.

The moment the prosecution set a motion to charge Razak for a crime of abetting this heinous murder, it should be always ready to let its theory of case be challenged by either the defence counsels or the trial judge. In the event the trial judge dismissed its theory of case, the prosecution must be able to satisfy the appellate forum that the learned judge had erred in law in dismissing its theory of case. Simply put, when the prosecution decided to prosecute Razak it should have been ready to complete the job until the end i.e until the final decision by the apex court. Losing the first battle in the trial court should not be taken as an excuse for the prosecution to abruptly halt the prosecution against Razak.

The unwise decision not to proceed with an appeal is definitely seen as a lackadaisical attitude of the government in combating a serious crime particularly when it involves powerful and influential individual. This will certainly affect the investment climate. it goes without saying that the investment has strong ties with a matter of security. If the investors feel that their money are not safe they will definitely move their money elsewhere – a place where a beautiful women is not murdered by C4.

In the final analysis as far as the rakyat are concerned the judgment of the high court is not the sole criterion of establishing the guilt or innocence of Razak. The Judge may say that there was no prima facie evidence that Razak had abetted the murder of Altantuya. As for the people on the street they sincerely believe that absence of evidence is not an evidence of absence.

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