One of the worst things that could happen to someone, especially a very public figure, is to be made the subject of public speculation of some great misdeed, and yet not be afforded the forum to vindicate oneself.
This subject cropped up at the Press Club a couple of nights ago.
I mentioned, half-jokingly, that if any of us was faced with some police investigation into the gruesome murder of a young woman whose body was then chopped up, the last thing such a person would want was a ‘NFA’ ( no further action ) on the investigation file, particularly if the public was openly discussing the matter and appeared to be convinced of that person’s guilt.
Unless you were in fact implicated in this horrible crime, in which case you would be grateful for the ‘NFA’. In fact, you would probably pay big time to have the matter ‘NFA’ed.
If, however, you were clean as a whistle and were being maligned by certain individuals with a hidden agenda and these individuals appeared to be successfully spinning your guilt in public space, you would want to be prosecuted so that you would have the very public forum of the courts to clear your name.
I know I would.
Take the Norita Shamsuddin murder.
Although the evidence was pathetic, there was still a charge and a trial.
And an acquittal.
And a man got to clear his name through the public forum of a court trial.
Had the AG’s chambers decided to not bring charges owing to the inadequacy of the evidence, someone would not have been able to clear his name and might have been convicted by the court of public opinion.
Most unfair!
And even if the AG’s chambers gets the flak for a failed prosecution, that should not deter such a prosecution as the purpose must be seen as two-fold, especially in a case that has generated wide publicity.
First, it shuts out the speculation whether the case was ‘NFA’ed because the prosecution was ‘got to’. Whether the police investigation team was ‘got to’ is another matter.
Second, it allows a man to clear his name out in the open.
This is of paramount importance.
And I guess that’s what Dr M wants when he says, as reported in the NST online today, that ‘he would not settle for less than his day in court so that he could defend himself against allegations he was at the centre of a judicial appointments scandal in 2001′.
For another’s take on this, go HERE.
Dr M is also reported to have said :
“Because people will then think that I lobbied to get off. Put me in court and let me explain. I don’t believe I did anything wrong but if they feel that I am guilty, I will accept any punishment. I welcome any investigations against me. I only ask that they charge me in court and I hope that the judge will allow me to speak,”
Now I still think Dr M is guilty as hell, but, yes, he too, is entitled to the presumption of innocence until tried and convicted by a competent court, if indeed he is ever charged.
And if so charged, then, yes, the law says that to give him a fair trial in court, the less should be said of the matter in public.
This is where, perhaps, Gani did a great disservice to Najib.
Depriving Najib of the opportunity to clear his name through the courts and to stop tongues wagging publicly.
It’s not as if the great advantage and utility of the courts to clear one’s name might have escaped Gani’s notice. He, too, once faced the gravest of charges that could be thrown at a prosecutor and was denied the opportunity to vindicate himself through the courts.
Remember the Anwar corruption trial before Augustine Paul?
Well, in the course of that trial in November, 1998, Anwar’s lawyer, Zainur Zakaria, applied to remove both Gani ( who was then Senior DPP and in charge of prosecutions ) and DPP Azhar Mohamed ( now Justice Azhar Mohamed ) from the prosecution team on the allegation that both Gani and Azhar had attempted to elicit fabricated evidence from Nallakarupan against Anwar in exchange for a reduced charge against Nalla for illegal possession of live ammo.
That application was supported by the statutory declaration of Manjit Singh Dhillon, counsel for Nalla. Annexed to the statutory declaration as an exhibit was a letter by Manjit to then AG Mokhtar Abdullah detailing Manjit’s allegation about how Gani was alleged to have attempted to get Nalla to fabricate false evidence against Anwar.
No doubt Gani would have been incensed with this allegation and would have wanted to challenge this with a rebuttal affidavit and possibly challenge Zainur and even Manjit to repeat this outside of court proceedings and then sue either or both in defamation.
Alas, this was not to be.
Augustine treated this application as an attempt by Zainur to undermine the integrity of the ongoing trial and an act of contempt of court.
Augustine convicted Zainur of contempt of court.
In the course of his judgment, this is what Augustine said :
‘In considering whether the motion filed by Messrs. Zainur Zakaria and Co was contemptuous I accepted the description as to what transpired between AGP (Abdul Gani Patail) and MSD (Manjit Singh Dhillon) at the meeting as stated in the documents annexed to the motion. I must point out that the foundation of the motion was the meeting between the two persons. It was therefore unnecessary for me to look for any further evidence including the calling of witnesses. Thus there was no need for me to await an affidavit-in-reply from the Attorney General’s Chambers as all the facts were before me’.
If you want to read Augustine’s judgment in full, the same in pdf is linked below.
What Augustine had done was to treat the statement of facts narrated in Manjit’s letter and statutory declaration relating to that meeting with Gani as correct!
In fairness to Augustine, though, there does not appear to have been a request by Gani, such as Dr M has now made, that he be permitted to defend himself against these most grave of charges by way of an affidavit-in-reply.
Zainur’s appeal against this conviction was dismissed by the Court of Appeal ( Fairuz, Lamin and Mokhtar Sidin sitting ) on 5th September, 2000 but was allowed by the Federal Court on 27th june, 2001.
Steve Shim, in the course of deliverying the judgment of the Federal Court, made this observation :
‘But what about the standpoint of AGP? Was it legally proper for him to request for assistance from Nalla in the manner he did? In this respect, the learned High Court judge had, quite rightly, stated that it was within the power of the Public Prosecutor not to charge a person or to prefer a reduced charge against him if he co-operated with the police by providing information to secure the conviction of his partners in crime’.
Steve Shim then referred to some legal authorities and continued :
‘It seems evident from the passage above that the discretionary power of the Public Prosecutor is invoked only as a last resort. Two pre-requisites appear to exist, namely (1) that the Public Prosecutor considers it necessary to resort to such an exercise and (2) that the exercise should be conducted properly and fairly so as to obtain a full and free disclosure by the accomplice. Given those pre-requisites, what is the position in the instant case? Here, there was no explanation as to why AGP had thought it fit to seek the cooperation of Nalla. He had not filed any affidavit in reply nor was he called as a witness. Had he been called, he could well have explained the situation and perhaps to the satisfaction of the court. The learned High Court judge held that Nalla was an accomplice drawing particular attention to exh. ID14B, a document in the possession of the prosecution, the contents have been set out in extenso, but as I have stated, a close scrutiny of the contents therein, would disclose that he (Nalla) was only involved in the alleged relationship between DSAI and Shamsidar (the wife of his secretary) and no one else. I have also indicated that AGP had, at the meeting on 2 October 1998, sought his assistance in respect of not just one woman but specifically with five women. AGP might well have his reasons for placing a specific figure on the number of women involved but, in my view, he should have been called to extrapolate. As this was not done, we are left with an unenviable position of questioning the motive or motives of AGP’.
If you want to read the judgment of the Federal Court in full, the same in pdf is linked below.
You can see from this that simply because he had not sought to challenge the grave allegations on its merits by asserting a right to be heard and to defend himself, as Dr M now seeks to do, Gani has been left to live with a most unsavoury observation by a respected former member of the Federal Court.
‘…we are left with an unenviable position of questioning the motive or motives of AGP’.
This, however, did not impact adversely on the career advancement of Gani.
Less than six months after the decision of the Federal Court, on 1st January, 2002, His Majesty the Agong, pursuant to Article 145 of the Constitution, and on the advice of then PM, Dr M, appointed Gani AG.
Malaysiakini reported yesterday that EC chairman Rashid revealed at a seminar that the previous cabinet had directed the cancellation of the use of indelible ink at the last GE.
Rashid is reported to have said :
“I have not told the country about this (before) but what happened was that cabinet rejected our proposed law (on indelible ink) on Feb 13 - the day dissolution of Parliament was done,”
“We do believe that in order to convince people (that we were independent), we have got to do something and the least we could was to agree to the use of indelible ink. We were very serious. We put up a regulation on this and submitted it to the cabinet,”
“I was told that PAS in the east coast bought ink from Thailand. Then Umno came to know (about this) and Umno also bought the ink. This was given to me in black and white by the police and the same report went to the cabinet and they believed that this was happening,”
Malaysiakini also reports that Rashid said that after he ( Rashid ) was informed of the cabinet’s decision to cancel the use of the ink, he was directed to take responsibility for the eleventh hour cancellation of the use of the indelible ink at the last GE.
Rashid put it this way :“And I was called and told about it and I was told to take the whole responsibility for agreeing to the ink. I took the whole responsibility.”
The online Star this morning reports that, in response to Rashid’s shocking revelation, Pak Lah said :
“It was only a suggestion we made to the EC chairman. It was up to him to think it over and agree or to proceed with the original decision to use the ink,”
The Star also reports that Pak Lah clarified that a week before Parliament was dissolved, the cabinet had made the suggestion, giving its reasons why it did not want the ink to be used.
“We had received information that some quarters had bought the ink although they had no authority to do so and we were suspicious that it could be used to cause confusion and complications during the voting process,”, Pak Lah is reported to have said.
The Star also reports that after the ‘no indelible ink decision’ was announced on 4th March, BN leaders, including Pak Lah, had sought an explanation from the EC for the cancellation, and that Pak Lah explained that the Government did not come clean earlier on the indelible ink as the government would be blamed if anything went wrong with the voting process.
Indeed, a Malaysiakini report dated 5th March, 2008 entitled ‘MCA raps commission over indelible ink reversal’ reported the following press statement issued by MCA elections operations advisor Wong Mook Leong in relation to the eleventh hour cancellation of the use of the ink.
“MCA is disappointed with the decision as this matter will be politicised by the opposition to canvass for votes. Why didn’t EC study this matter and resolve the issue earlier rather than cancelling the usage of indelible ink at the last minute?”
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Let’s try to make some sense of all of this, if that’s possible.
Rashid says the cabinet made the decision on the day Parliament was dissolved, ie, 13th February.
Pak Lah says that decision was taken a week before Parliament was dissolved, but the EC was not directed to cancel the use of the ink. The cabinet only suggested this.
Two inconsistencies here.
Both Pak Lah and Rashid say that they had received info that ink had been illegally brought into the country. Rashid said that he was given proof of this ‘in black and white by the police and the same report went to the cabinet and they believed that this was happening’.
If this is true, it would mean that the police ( read this as Musa Hassan ) had, on or before the day Parliament was dissolved, furnished some sort of report, both to Rashid and the cabinet, of indelible ink having been brought into the country.
We know now, after Syed Hamid Albar’s revelation in Parliament on 6th May, that there was not a shred of evidence to support this.
One telling piece of evidence here.
Again, Pak Lah says that the cabinet only suggested the cancellation. Rashid, though says he was directed to cancel. And MCA lambasted EC the day after the announcement.
Was MCA doing a sandiwara? Or was MCA not part of the ‘cabinet’ decision to suggest to the EC to cancel the ink?
Is it that by ‘cabinet’, Pak Lah means his ‘inner cabinet’? Like maybe on the 4th floor?
Rashid said that he was ‘called and told about it and I was told to take the whole responsibility for agreeing to the ink. I took the whole responsibility.”
Does he mean he was summoned to a meeting and told? Or was he told over the phone? In either case, who ‘called and told’?
Whether Rashid was directed to cancel, or whether it was suggested only, and whether this took place on the day Parliament was dissolved or a week before, why the lapse of almost a month before the cancellation was announced?
Where is the report that the police ( read this as Musa Hassan ) submitted to both Rashid and the ‘cabinet’? What exactly did it say?
We know now that there was no substance to this alert of illegal ink being brought into the country. Who, then, put the police ( read this as Musa Hassan ) up to it?
Who’s still lying and who’s not?
Wong Chun Wai, how’s about sending one of your reporters out to do some investigative reporting for a change?
