MEDIOCRE JUDICIAL CHARACTER MAKES NONSENSE OF JUSTICE


Anwar Ibrahim’s sodomy II sequel has all the trappings of a selective political prosecution. The case involves a sequence of allegations made by his political aide Mohd Saiful which is riddled with some form of hidden and invisible plot which has to be brought out into the open.

No doubt any prosecution would involve some form of a story or a play. There is bound to be some form of human conflict which would run contrary to the law of the land. Hence after a report is made and the investigations are carried out and if there is prima facie evidence the Attorney General (AG) would prefer the charge or charges.

In Anwar’s sodomy II the charge is under section 377B of the Penal Code which reads:

“That you on June 26, 2008…….intentionally had carnal intercourse against the order of nature with Mohd Saiful Bukhari Azlan where you inserted your penis into his anus, and therefore you had committed a crime which can be punishable under section 377B of the Penal Code.”

Now every sane and right thinking person should first and foremost take note that the operative words of the charge are “WHERE YOU INSERTED YOUR PENIS INTO HIS ANUS” and in a criminal case the duty of the prosecution is to prove beyond reasonable doubt in establishing the charge that Anwar did in fact “insert his penis” into the anus.

We are all very familiar that when a report is made in a case of sexual assault or rape, the first thing the police would do is to send the victim to a government hospital to be examined and if it is established by medical evidence that there was indeed a case of sexual assault or penetration, then the aggressor is apprehended and after investigations are carried out, the AG may decide to prefer charges. If it was consensual no charges are preferred.

However in Anwar’s case Saiful claims he was sodomised on June 26, 2008 but he consented to it. He did not pass motion for two days. He went to see Najib and informed him of what happened. He was advised to go to a hospital which he did. He went to two private hospitals before he was referred to a government hospital at which point he lodged the police report.

Anuar had applied to quash the charges on the grounds that it was mala fides, oppressive, and an abuse of the process of the court as it is a conspiracy and is malicious on the basis that a medical report has suggested that there was no penetration.

The High Court Judge dismissed the application. Anwar appealed to the Court of appeal and it is beyond our comprehension as to how the Appeal Court could deliver a unanimous decision on the reasoning that they concur with the submission of the lead prosecutor that the medical report was not conclusive evidence.

So what has happened to the “BEST EVIDENCE RULE” in Malaysia?  Is this rule of evidence dead as with the rule of democracy?

But the lead prosecutor has submitted that he will not rely on the medical report (the best evidence) but the case would be based on the testimonies of witnesses (who would that be when it was only Anwar and Saiful if at all it actually happened) including forensic (manufactured) evidence.

So herein is the answer. The best evidence rule goes out of the window. In its place will be introduced MANUFACTURED EVIDENCE to establish the charge even thought there was no penetration.

Let’s go a little further. Anwar filed an application to disqualify the High Court Judge from continuing to hear his case on grounds of the allegation of bias and lying over his failure to take appropriate action against the Utusan Malaysia’s coverage of the trial The news paper is owned by the United Malay National Organisation (UMNO).

The judge miserably failed in the Oath and Affirmation that he took when he accepted his appointment of office. The Oath states that: “I will faithfully discharge my judicial duties in that office to the best of my ability, that I will bear true faith and allegiance to Malaysia, and will preserve, protect and defend its Constitution.”

In the context of the Oath the judge had taken to defend the “Constitution” and since Anwar is claiming that he is being deprived of his “personal liberty” the Judge should have stepped down and let the application to disqualify him be heard by another judge.

This he failed to do.  He totally ignored all the well established judicial precedence on the rule of bias. He decided to become the judge, jury and the executioner of the application made to disqualify him. It is apparent that he lost sight of the wisdom and the integrity of his office. He committed a grievous mistake by hearing and disposing of the application by himself.

The conclusions that he drew defeats commonsense and was totally illogical for a person who has been appointed to that high office when he said, “The allegations that I lied in arriving to the decision ( not to take action against Utusan) is incorrect. After looking at the testimony by the witness, and the affidavit of the application, there is no truth to such allegation. I am certain that any right rational people would not see the decision as biasness on my part.” (reported by Malaysiakini)

Why is it so?

There are a few factors that have to be considered.  There is a time honoured legal Maxim that states: “ No one should be a Judge in his own cause.”

Apart from the time honoured Maxin the judge had as a person to determine an issue which is made against him would naturally be prejudiced and being only human would never be able to arrive at a decision with certainty that would be acceptable to the applicant when all the right thinking people conclude that he is biased.

Further the judge failed to realize that the human consciousness is unique as it is a matter of perception and in this case it would be all the more unique as the application was against the judge to disqualify him from continuing to hear the case.

And that is why in (490-420 B. C.) Protagoras saw the full implications of what we are discussing today that took place in Anwar’s case. It led Protagoras to ask these questions.

“If other people believe in different things to you, how do you know that your beliefs are right? How do you know that anyone’s beliefs are right?

Therefore, with the facts that are before all right thinking people not only in Malaysia but also from all over the world, we are certain that in applying inductive logic to the prevailing facts we will reach the same conclusion that the prosecution of Anwar is politically motivated.

Najib, it is high time that you stop pretending that you can continue living in a diabolically conceived comfort zone. The whole world cannot be wrong and you are right.

May we leave you to ponder on a Latin Legal Maxim: “Nemo ex alterius facto praegravari debet” which means, No one ought to be burdened in consequence of another’s act.

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One Response to “MEDIOCRE JUDICIAL CHARACTER MAKES NONSENSE OF JUSTICE”

  1. boscopa Says:

    Yes.

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