15 November 2014

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Malaysiakini

Sasterawan Negara Datuk A Samad Said menasihatkan agar masyarakat Melayu tidak taksub dengan dakwaan sesetengah pihak yang mengatakan bahawa bangsa itu kini semakin terancam.

Katanya, masyarakat perlu memahami bahawa Malaysia diperintah oleh seorang pemimpin Melayu yang turut mewakili parti yang dikatakan memperjuangkan bangsa itu.

Oleh itu, beliau hairan kerana masih timbul dakwaan dakwaan masih timbul bahawa kedudukan orang Melayu kini terancam, katanya  yang lebih mesra dengan panggilan Pak Samad.

“Saya harapkan masyarakat Melayu janganlah terlalu taksub dengan hebahan bahawa orang Melayu sedang terancam.

Macam mana orang Melayu terancam? Macam mana agama, Melayu terancam apabila orang yang berkuasa di atas adalah orang Melayu selama lima dekad. Apa yang dia buat duduk di atas selama lima dekad itu?

“Kalau kedudukannya itu tidak mampu membuat orang Melayu berfikir secara waras, keluar (turun) sahaja.

“Biar orang Melayu lain (yang tadbir). Dia tadbir lima dekad. Bukan satu dekad,” katanya dalam satu temubual denganMalaysiakini.

Kebimbangan seperti itu antara lainnya dibangkitkan oleh anggota majlis tertinggi Umno, Tan Sri Ibrahim Abu Shah yang percaya orang Melayu tidak akan dapat menguasai pentadbiran sekiranya Umno dan BN tewas dalam pilihan raya umum akan datang.

Perkara sama turut dibangkitkan oleh Menteri Komunikasi dan Multimedia Datuk Seri Ahmad Shabery Cheek yang dilaporkan mendakwa orang Melayu kini berasa tidak dialu-alukan di sebuah negeri yang dipimpin sebuah parti pembangkang.

Walau tidak menyatakan parti khusus, beliau dipercayai membayangkan negeri Pulau Pinang yang diterajui DAP.

15 November 2014

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Malaysiakini

Perhaps – perhaps – the auditor-general may not be able to or have to audit the accounts of scandal-ridden national strategic investment fund 1Malaysia Development Bhd or 1MDB. But surely he can make an assessment of the impact of 1MDB on government finances and the threats it might pose. And more.

It’s easy for auditor-general Ambrin Buang to throw his hands up in the air and say there is no reason for him to audit 1MDB because it has already been audited by a big four accounting firm – Deloitte.

To quote him: “Why are we not auditing 1MDB? My answer is that its accounts have already been audited by one of the ‘big four’,” Ambrin told a town hall meeting session with the media on Wednesday on the third series of the 2013 Auditor-General’s Report that was released on Monday.

“So, there is no reason why we should come in again,” he said, responding to media questions on why it had not taken any audit action on the controversial 1MDB.

“Auditing financial statements is a very labourious examination.”

Indeed it is. But does that mean that the auditor-general sits around and twiddles his thumbs while a major scandal involving a company fully owned by the government’s Minister of Finance Inc unfolds right before his eyes? Surely he has been reading the newspapers.

Don’t highly questionable things like raising funds willy-nilly, underpricing bonds while paying too much for assets, paying high interest rates, keeping billions of ringgit in low yielding deposits while raising even more funds and paying a fortune in fees to Goldman Sachs not pique the auditor-general’s curiosity?

Let’s put down some facts first about 1MDB for the benefit of the auditor-general. It would not have made any profits since its inception in 2009. If not for revaluation of government property sold cheaply to it, its losses to date would have been RM5 billion as at end March 2014.

On the liability side, it is funded by RM1 billion in share capital by the Minister of Finance Inc. But its borrowings as of March 31, 2014 amount to a massive RM42 billion, 42 times the share capital.

The gearing ratio, the percentage of debt to shareholders funds or equity of RM1.7 billion, is a massive 24 to 20 percent which could be among the largest if not the largest for any large company in Malaysia. In the private sector, that kind of gearing will be considered unbearable.

To cap it all, it is doing very little with that kind of borrowings. It has bought power assets worth some RM10.5 billion for which it took a loan despite there being considerable liquidity within the firm. Even if we subtract that RM10.5 billion from RM42 billion, some RM31.5 billion is substantially unaccounted for.

Available for sale assets, a vague term for financial assets which are held for sale and for which there may be no provision for diminution in value, comes up to a massive RM13.4 billion, including RM7.7 billion tied up in Cayman Islands in a mysterious segregated portfolio company which no one knows anything about.

Apart from that, there are various cash or near cash assets which account for a further RM9.1 billion. Add these up and the total amount of assets doing practically nothing comes up to a massive RM22.5 billion. Why keep these assets in near cash and then borrow some more?

In the first few years alone of its life, after stripping out revaluation gains, it is obvious that 1MDB has not been able to earn more than the interest on borrowings as shown by the RM5 billion losses. Why? And why is it continuing to borrow? And can it ever get assets that will earn significantly more than the interest costs?

Loan mispricing

What about 1MDB’s loan mispricing, which is already over RM4 billion and could eventually amount to RM7 billion or more if new loans were made on the same basis? And what about the massive fees paid to Goldman Sachs of over RM500 million for arranging some loans?

Surely the auditor-general can do something about these. After all, the Minister of Finance Inc, is a government company, no different from any company owned by a ministry. 1MDB is that company’s wholly owned subsidiary. Surely the auditor-general has every right to probe any government company which poses a threat to government finances.

Remember that the government originally said that it guaranteed explicitly only RM5.8 billion of loans and denied there was any letter of support for anything more. But now after the support letter came out in the press, it now concedes there was indeed such a letter for a further RM10 billion.

How many more letters of support could there be for 1MDB? And what about other government companies and bodies?

Legal opinion is that the letters of support are in substance no different from guarantees and that the government will have to pay up in the event of default by 1MDB. Surely this is an area which concerns the auditor-general and the amount of contingent liabilities the government has to bear.

The auditor-general plays a role as the watchdog of the government and the public. It is his obligation to publicly highlight potential threats to government finances and to make recommendations to avoid them, and probe them if need be.

He has done this commendably well for other government departments and bodies. Why should any exemption be given for 1MDB? What’s so special about 1MDB?

5 November 2014

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Article written by John Esposito and John Voll.

Anwar Ibrahim is in the Malaysian Federal Court this week for what hopefully is the last chapter in a sordid affair that has done nothing but distract him from his reform agenda. We have been critical of Malaysia’s judiciary in the past and hope that at this moment in time, the five judges who are tasked with reviewing the appeal of Ibrahim’s March conviction on charges of sodomy, will adhere strictly to the rule of law and not be swayed by external political influences.

Malaysia’s image as an example or a model of a Muslim majority country that is on a democratic path, economically vibrant, adheres to the rule of law, and a model to the world on how to exist as a pluralistic society is under tremendous strain today. Ibrahim’s trial is just one example of how dissident voices calling for reform of institutions in Malaysia are being persecuted. In just the last two months, nearly two dozen activists have been charged under Malaysia’s archaic Sedition Act, including Ibrahim.

Ultra right wing groups have targeted minority communities threatening to burn bibles and tell the “immigrant” Chinese and Indian population of Malaysia to go home.

Academic freedom is also under attack. Two highly regarded professors were charged with sedition and Ibrahim’s lecture scheduled to take place at the University of Malaya on Monday night was systemically blocked. University staff, dismissed early in the day, and the front gates of the university were put on lockdown. A few thousand brave students defied the ban and were able to hear Ibrahim speak.

At a time when the world is confronting violent and regressive movements in parts of the Muslim world, Malaysia could be a shining example of what is possible when Muslims focus on rebuilding the tradition of scholarship, technology, and pluralism that is present throughout the history of Islamic civilisation. While the prime minister has made positive remarks about the need for a “movement of moderates” in the Muslim world, the actions of his party at home belie his intentions.

The continuing efforts to use the judicial system against opposition political leaders will undermine Malaysia’s leadership role in regional and global affairs as well as weaken Malaysia’s traditions of political openness and democracy.

Malaysian authorities, as Human Rights Watch Asia director, Phil Robertson, has stated, “risk making a travesty of the country’s criminal justice system” unless they withdraw their case against Ibrahim.

Former US Vice President Al Gore framed the issue clearly last March when he said: “It is extremely disturbing that the government of Malaysia – by continuing to press this case beyond the bounds of reason, let alone the bounds of justice – has used the courts to short-circuit the political process.”

John L Esposito is University Professor and Professor of Religion and International Affairs, Georgetown University. His recent books are The Future of Islam and (with I Kalin) Islamophobia and the Challenge of Pluralism in the 21st Century.

John O Voll is Professor of Islamic History at the Prince Alwaleed bin Talal Center for Muslim-Christian Understanding at Georgetown University.

http://www.aljazeera.com/indepth/opinion/2014/11/questionable-trial-anwar-ibrahi-201411455121912547.html

2 November 2014

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I have been a trial observer in Anwar Ibrahim’s sodomy trials since 1999. In fact, I have only missed to observe his trial once -that was when the Malaysian Court of Appeals overturned the High Court’s previous decision acquitting him from all charges.

I made it a point hence to observe oral arguments in Ibrahim’s case before the Malaysian Supreme Court. Similar to ours, the Malaysian Supreme Court sits in many divisions. The proceedings I had the chance to observe had five justices on it.

Unfortunately, my commitments at home did not allow me to observe for more than two days of oral arguments. I thought that the two days would be enough because in our own Supreme Court, very seldom will the Court hear a matter for more than two sittings.

But the Malaysian Court is different, Unlike ours, which will only hear issues of law, the Malaysian Court heard arguments point by point on why the Court of Appeals erred in reversing the High Court. I had the privilege of hearing two children of the revered but recently passed barrister Karpal Singh, both of whom argued that the Appellate Court erred in convicting Ibrahim on the basis of dubious DNA evidence.

While DNA as a science is itself accepted, what made the use of DNA evidence dubious in Ibrahim’s case was the fact that while the DNA extracted from a towel, a comb and a tooth brush allegedly used by Ibrahim came from one and the same person, there was nonetheless no direct evidence that they were in fact the DNA of Ibrahim! DNA as a science would itself confirm if DNA found from an object is from a particular person. But in the case of Ibrahim, the Appellate court overturned his conviction on the basis of mere circumstantial evidence that they could only have come form Ibrahim, despite the absence of scientific link to him.

This kind of a conclusion would not have been possible in the Philippine or any other jurisdiction with the semblance of an independent judiciary. The fact that the Malaysian Appellate Court convicted him under this dubious condition could only mean that it abdicated its independence and agreed to be a tool of the ruling party, UMNO, and Malaysian Prime Minister Najib Razak, in an effort to stymie Ibrahim and the rest of the country’s opposition into surrender.

But battle tested democrats don’t succumb to threats easily. By highlighting the obvious, Anwar has turned the table on the Malaysian Judiciary. No court in this planet could have convicted him on the basis of DNA evidence with no direct link to him. The questions now is whether the Malaysian Supreme Court will exhibit independence and acquit Ibrahim, or be swayed by the ruling party as did the Court of Appeals. In a way, what I observed was the Malaysian Courts on trial, and not just Anwar Ibrahim’s case.

All freedom loving people of the world eagerly await the outcome of this trial. For with it is also a verdict on the independence and integrity of the Malaysian Courts.

Harry Roque

Roque & Butuyan Law Offices
1904 Antel Corporate Center
121 Valero Street, Salcedo Village
1227 Makati City, Philippines

1 November 2014

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The Washington Post

It can be hard for visitors to Berlin to imagine where the Berlin Wall once separated Germany’s communist East from the U.S.-friendly West. Today, commuters run to catch a metro where trains stood for nearly 40 years. Curried sausages are sold and illegal (but popular) parties are celebrated in empty warehouses just feet from where East Germans were shot by their own countrymen as they tried to cross the border to the west.

Next week, Germany will celebrate the 25th anniversary of the fall of the Berlin Wall and at first glance, it seems as if the country is more united than some nations that were never split.

But numbers and images illustrating differences in lifestyles and problems between East and West Germans tell a different story. While 75 percent of Germans who live in the east said they considered their country’s reunification a success in a recent survey only half of western Germans agreed. And that’s not the only distinction indicating that the separation of the past prevails today.

Screen Shot 2014-10-31 at 06.15.21

Before we go in-depth with the Washington Post visualizations and maps shown above, some of them inspired by German news site ZEIT ONLINE, let’s take a look at the bigger picture:

Berlin, photographed from a Space Station


Over 20 years since the Berlin Wall was dismantled the effects of separating the city can still be seen from space. The yellow lights correspond to East Berlin and the greener tones show West Berlin. (Copyright: ESA/NASA)

The photo above was taken by astronaut André Kuipers from the International Space Station in 2012. It shows one division of Berlin: While the yellow lights are in east Berlin, the green parts mark the western part.

Daniela Augenstein, a spokeswoman for Berlin’s department of urban development, explained that each side historically used different streetlights. The lights themselves reflect another difference: The streetlamps used in West Germany were much more environmentally friendly, reflecting the emergence of the western German environmental civil movement in the 1970s and 1980s. At that time East Germany was still heavily polluting, and heavily reliant on coal. Today, eastern Germany is the heart of the country’s renewable energy transformation. But viewed from space, the historic differences still define Berlin’s nightly appearance.

Data reveal further cleavages between east and west.

(Source of the following 8 maps: German statistical office. Visualization: Gene Thorp/ The Washington Post)

(Source of the following 8 maps: German statistical office. Visualization: Gene Thorp/ The Washington Post)

After the fall of the Berlin Wall, formerly communist eastern German companies and factories suddenly had to compete with their much more efficient western counterparts. Capitalism came too fast. Many eastern German companies went bankrupt and some regions never recovered from the shock. Until today, income levels are much lower in the east than in the west.

Screen Shot 2014-10-31 at 06.20.43

Germany’s unemployment rate made headlines when it hit a two-decade low this summer. But that rate is not evenly spread: former West German states still have far better employment levels than their eastern neighbors. That’s in part because more young people have moved from rural eastern areas to the west, which has also decreased the amount of job-seeking eastern Germans.

Screen Shot 2014-10-31 at 06.21.44

This has led to a paradoxical situation: Many young people in rural eastern Germany say they are forced to move to the west or to larger eastern cities because of a lack of competitive wages and job opportunities. Consequently, many eastern German companies cannot find enough young trainees for entry-level positions and are now recruiting in Poland or the Czech Republic.

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Demographic differences are not only the result of joblessness and income gaps. Most foreigners who live in Germany have chosen to settle in the western parts, and their arrival has decreased average ages. Several factors explain the significantly smaller foreign population in the east. Before the fall of the Berlin Wall, western Germany invited many Turks to live in the country as guest workers. Many of them never left.

Screen Shot 2014-10-31 at 06.23.43

Furthermore, the climate is less friendly to foreigners in the east, according to a study by Leipzig University researchers who interviewed 16,000 Germans over 10 years. These findings coincide with a larger presence of right-wing neo-Nazi sympathizers. The right-wing National Democratic Party, whose members have often been accused of glorifying Adolf Hitler, enjoys particular support in the east, though they’ve been relatively unsuccessful at the polls.

Why did right-wing politicians prosper in the once-communist east. The explanation is complex, but scientists often attribute it to a mixture of anti-leftist worldviews after the wall fell and the economic downturn in the east. Many people were disillusioned by Western capitalism, but few wanted a return to communism. Right-wing politicians were quick to fill the void. The great majority of eastern Germans, of course, are welcoming.

Screen Shot 2014-10-31 at 06.24.39

The comparisons above might make eastern Germany seem like a bleak place to live — but in some ways, it’s ahead of the west. Take trash production. Why? Having dealt with constant food shortages until 1989, eastern Germans learned to economize and buy only those items they deemed necessary. This attitude seems to prevail today.

Screen Shot 2014-10-31 at 06.25.29

Communist East Germany also emphasized child care. While eastern German mothers were usually employed, western German women often stayed home to raise their children. So the East German government invested heavily in child-care facilities, and that legacy remains today.

Screen Shot 2014-10-31 at 06.26.16

This map points to another legacy of eastern Germany’s communist past. In then-East Germany, agricultural fields were much larger, because they were not owned by individuals, but by a pool of farmers. After reunification, the fields’ sizes rarely changed.

Screen Shot 2014-10-31 at 06.27.08

(Source: Versorgungsatlas.de/ First used by ZEIT ONLINE/ Visualization: Gene Thorp, The Washington Post)

In the east, it was also much more common, and politically supported, to get a flu shot. Even today, eastern Germans are more committed to this practice, as the German news website ZEIT ONLINE recently noted in a comparison between eastern and western habits and beliefs that is definitely worth a read. (According to the site, eastern Germans also own significantly fewer legal small arms than citizens living in west Germany.)

(Source: Kraftfahrt-Bundesamt/ First used by ZEIT ONLINE/ Visualization: Gene Thorp, The Washington Post)

(Source: Kraftfahrt-Bundesamt/ First used by ZEIT ONLINE/ Visualization: Gene Thorp, The Washington Post)

Finally, if you travel Europe and you see two German groups at a campground, you might easily be able to distinguish them. Eastern Germans usually sleep in tents, while western Germans prefer to travel with trailers. We did not find a scientific explanation, but one might posit that it’s rooted in western Germans’ longer experience traveling the world. Furthermore, many young eastern Germans couldn’t even afford a car under communism. Trying to buy a trailer would have been more expensive and nearly impossible for most eastern Germans. While those in the west were able to explore beyond their borders, eastern Germans remained practically imprisoned by their government for nearly 40 years — until 25 years ago.

1 November 2014

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TMI

AUG 22 — My name is Anwar bin Ibrahim. I am the leader of the Opposition in Parliament. In the 1990s, I was the Finance Minister and Deputy Prime Minister until September 1998 when then Prime Minister Datuk Seri Dr Mahathir bin Mohamad sacked me after I had refused to resign. He had told me to resign or face dire consequences including criminal prosecution for alleged sexual and corruption offences. I refused and all hell broke loose. My unceremonious and grossly unjust dismissal simultaneously orchestrated with a trial by media under Mahathir’s complete control triggered mass and widespread demonstrations throughout the country and launched the movement for change and reform known in our history as the Reformasi era.

After a series of show trials during which every rule in the book on evidence and criminal procedure was violated with impunity at the hands of the prosecution and the courts, I was convicted and sentenced to a total of 15 years.

THE CHARGE AGAINST ME

First and foremost, I categorically deny the charge against me. I want to state in no uncertain terms that I have never had any sexual relations with the complainant Mohamed Saiful. His allegation is a blatant and vicious lie and will be proved to be so.

This is a vile and despicable attempt at character assassination. In this regard, let me reiterate that they can do all they want to assassinate my character and sully my reputation and threaten me with another 20 years of imprisonment but mark my words, they won’t be able to cow me into submission. On the contrary, it only serves to fortify my conviction that the truth will eventually prevail. Come what may, I shall never surrender. With apologies to Jean Racine in “Phaedra”:

“You know how well your tyranny favours my temperament and strengthens me to guard the honour of my reputation.”

Yes indeed, I will guard it with my life if I have to. And if I may bring the message closer to home, let me quote the words of Nelson Mandela in his speech made from the dock in the famous Rivonia show trial of 1963 under the apartheid regime:

“I have fought against white domination, and I have fought against black domination. I have cherished the ideal of a democratic and free society in which all persons live together in harmony and with equal opportunities. It is an ideal which I hope to live for and to achieve. But if needs be, it is an ideal for which I am prepared to die.”

Back in 1998, blindfolded and handcuffed, I was beaten senseless by the Inspector-General of Police and left to die in the lock up at the Federal Police headquarters. However, it was by the grace of God that a few of the rank and file of the police took pity on me and nursed me to recover from the near lethal blows. There was then a cover up by Gani Patail (now the Attorney-General) and Musa Hassan (the IGP at the time that I was charged in this new episode) with the full knowledge and connivance of Datuk Yusuf, the current chief prosecutor in this trial. All these personalities were linked in one way or the other with the 1998 show trial and more insidiously with the suppression of evidence in respect of the black eye scandal and attempts to pervert the course of justice. These are the same personalities who are now actively involved in the current prosecution against me. Res ipsa loquitur, as they say, but in this regard I’m not talking about negligence but rather proof of criminality in this heinous plot betraying indeed “the deep damnation” of the conspiracy.

The circumstances are compelling that I elect to make a statement from the dock. And in this statement I shall attempt my utmost to place the truth ahead of the web of lies and deceit that has been spun thus far. To quote Shakespeare:

“And let us once again assail your ears,

That are so fortified against our story…”

Which has set me from the outset of the trial to have been deprived of a level playing field and subjected to inequality of arms vis-a-vis the prosecution.

The prosecution’s failure to discharge its duties professionally

1) Even though these matters are done as a matter of routine in criminal proceedings, the Prosecution has consistently refused to disclose material critical to my defence, including: (a) prosecution witness list; (b) primary hospital examination notes written by the medical examiners of the complainant at HBKL; (c) witness statements (including that of complainant); and (d) forensic samples and exhibits for independent examination and verification. All this has caused considerable prejudice to my defence and occasioned grave injustice. The only conclusion that one can reasonably draw from the prosecution’s persistence in this act of perversity is that unseen hands are at work and it is certainly not the hand of God.

2) Your failure to respond during the course of the trial to several attempts by persons hostile to me to discredit me by commenting on aspects of the trial. These included whether I should provide samples of his DNA; blaming the defence for the delay of the proceedings; and reporting on matters that were the subject of a suppression order. These public comments were made either in defiance of your orders that they not be made. They were made by Umno officials and politicians, including Datuk Seri Najib orchestrated through the controlled electronic and print media, such as Utusan Malaysia, Berita Harian, the New Straits Times and TV3. The constant comments by the Prime Minister and Umno officials in the media and adverse comments on the progress of the trial were clearly calculated to influence you and illustrates the political motive behind the charge.

3) The latest act of blatant disregard occurred just last Tuesday and Wednesday over TV3 which broadcasted a pre-recorded interview with the complainant saying things which are clearly in contempt of the proceedings in respect of the trial. In particular, the audacious portrayal of himself as the victim who is a pious and God-fearing Muslim who has sworn on the Quran that he is a witness of truth.

4) But the truth is that even as the trial was in progress, the complainant who was engaged to someone else was shamelessly having an affair with a member of the prosecution team. Quite apart from the consequences of such an affair on the conduct of the prosecution, the complainant’s facade of moral rectitude is shattered by this scandalous affair with the lady prosecutor who herself was also engaged with another man.

5) In spite of all this, the complainant, assisted by the full force of the Umno propaganda machine, via their media, has gone to town to vilify me. The point is that all comments were calculated to discredit me, adversely influence the course of the proceedings and to intimidate the witnesses at the trial. In spite of all these blatant transgressions, you have persistently refused to respond to any of these acts of contemptuous behaviour.

The solemn duty of a judge is not to sit mute when the law provides for a court of its own motion to issue show-cause notices against those who interfere in the administration of justice. I am reminded of the maxim Judex Habere Debet Duos Sales, Salem Sapicutiae, Ne Sit Insipidus, Et Salem Conscientiea, Ne Sit Diabolous, the English translation of which is,

“A judge should have two salts, the salt of wisdom, lest he be insipid; and the salt of conscience, lest he be devilish”.

The office of a judge is one of the most honourable in the country; he is the voice of the legislator and the organ for dispensing justice; he holds the balance between the executive and the subject.

Even more significantly, in the discharge of his duties, the judge should be mindful of Allah’s command:

“…and let not hatred of others

Swerve you into error

And depart from justice.

Be just, that is nearer to piety

Fear Allah, For Allah is

well acquainted with all that you do” — Surah al-maidah: 8

In the middle of the Second World War in 1942, Lord Atkin, in Liversidge v Anderson, had occasion to say in the House of Lords,

“It has long been one of the pillars of freedom…that the judges are no respecters of persons and stand between the subject and any attempted encroachment on his liberty by the executive, alert to see that any coercive action is justified by law.”’

In my case, YA, presiding in an adversarial trial, had the residual power and the jurisdiction to have invoked YA’s powers relating to contempt of court. YA chose not to do so for reasons best known to YA. What has happened is not in the best traditions of the Judiciary. In the ongoing Banting murder trial, the learned trial judge in that case, YA Datuk Akhtar Tahir, took it upon himself to summon a local television producer over a clip it aired during its prime news slot relating to the defence in the murder trial of Datuk Sosilawati Lawiya and three others. A newspaper clipping of that report is annexed herewith. YA Datuk Akhtar Tahir has courageously demonstrated judicial activism in the name of human rights and the essential requirement of a fair trial.

To compound the position to incredulity, the open scandal relating to DPP Farah Azlina Latiff having an affair with PW1 did not concern YA. This invidious relationship should have alerted YA in that I have been denied a fair trial for the simple reason that Farah Azlina Latiff would have had access to the investigation papers being a member of the prosecution’s team and, therefore, PW1 would, through this relationship, would have had knowledge of the statements given by witnesses, including my alibi witnesses in the course of the investigation.

YA did not even chastise Farah Azlina Latiff for the illicit affair with SP1. All that was done was that Farah Azlina Latiff was taken off the prosecution team at the behest of the prosecution which was an open confirmation of the existence of that illicit affair. Farah Azlina Latiff did not deny the allegations against her. Neither was PW1 recalled by the prosecution to deny the existence of this unsavoury affair.

The Attorney-General had publicly stated the reasons would be given later to account for the sordid affair. That has yet to eventuate.

Yet, in the face of this, YA, at the close of the prosecution case, made a finding that PW1 was a truthful witness from this passage in the judgment as follows,

“Nothing came out from the lengthy cross-examination of PW1 or from the evidence of other prosecution’s witnesses that could suggest what PW1 had told in his evidence was something which was not probable. I find PW1’s evidence remains intact. He had truthfully and without embellishment or exaggeration in his evidence narrated in minute detail how he was sodomised by the accused on the date and at the place stated in the charge. I find him to be truthful witness and his evidence is reliable and if accepted would establish all the facts required to prove the charge against the accused.”

My lawyers had clearly made the submission that YA had made a prejudgment when YA ought to have only made findings as to who was telling the truth at the conclusion of the defence, in which event, I would have given evidence under oath. My lawyers did not, at any time, advert to the passage above in isolation. They zeroed in on the obvious, namely, whether a witness was truthful or not had to be decided at the close of the defence case. The provisions of section 182A(1) of the Criminal Procedure Code provided the judge with that guidance but to no avail. That section bears repeating. It states:

“At the conclusion of the trial, the court shall consider all the evidence adduced before it and shall decide whether the prosecution has proved its case beyond reasonable doubt.”

Pursuant to what I have stated above, I have been denied the benefit of putting up my defence under oath. That amounts to deprivation of a fair trial and the existence of a level playing field.

The Court of Appeal going out of line

My appeal to the Court of Appeal over the recusal of YA on account of prejudgment, following which would have resulted in biasness was heard on July 6, 2011. A copy of the order is annexed herewith. No written judgment was handed down by the Court of Appeal on July 6. The appeal was dismissed summarily on the preliminary objection taken by the prosecution that the order appealed against was not a final order. Those were the reasons given in open court. Nothing more, nothing less. The Court of Appeal took no more than five minutes to dispose of the appeal.

Unbeknownst to me or my lawyers, there was at the same time a 40-page judgment under the hand of YA Datuk Haji Abdul Malik bin Haji Ishak, also dated July 6, 2011. A copy of that judgment is annexed herewith.

Why did the Court of Appeal not read out the 91 paragraphed grounds of judgment dated July 6 on July 6 itself? Obviously, this judgment was at hand on July 6 but had surreptitiously been concealed from my knowledge and the knowledge of the public. The letter dated August 11, 2011 supplying a copy of this judgment to my lawyers is annexed herewith. As is usual, YA must have had the benefit of reading this judgment which will further exacerbate your bias against me. The judgment is an open and flagrant attack on me to which I will advert in due course. Suffice to say at this juncture that here is a judgment of the Court of Appeal written after July 6, 2011 which contains harsh criticism against me without my being given the opportunity to reply.

But that begs the question: the appeal had been dismissed in limine on the ground that the order appealed against was not a final order. That should have been the end of the matter because it followed that the court had no jurisdiction to entertain the appeal. [YA Datuk Haji Abdul Malik bin Haji Ishak sat mute during the course of submissions on the preliminary objection]. The matter did not go beyond into the merits. That is what the Court of Appeal announced on July 6 without going an inch further. The preliminary objection is adverted to, not as the main part of the judgment. The major part of the judgment goes beyond. It is a frolic of his own used for the purpose of hitting out at me.

If that was so, why did Datuk Haji Abdul Malik bin Haji Ishak embark upon a relentless attack on me in the rest of the judgment? In fact, he had no jurisdiction to do so. This is a blatant abuse of judicial power, perhaps in a surreptitious attempt to curry favour the political masters? Otherwise, how else can one explain as to why he embarked upon such a scurrilous attack on me by stating in the following paragraphs as numbered:

“[5] This case will fall in history. It will be chronicled as the only known case in our country or for that matter within the Commonwealth enclave where the appellant as an accused person persistently and consistently filed one application after another in an attempt to recuse the learned trial judge from hearing and continuing to hear the sodomy trial which is ongoing.

“[6] It seems that the appellant here is trying his level best to scuttle his sodomy trial for reasons best known to him, much to the chagrin of the prosecution and the exasperation of the members of the public at large.

“[15] It was certainly an uncalled for criticism [against the learned judge] bent to deceive and confuse the uninitiated. It is easy to criticise but it is always difficult to justify it.

“[18] It is also difficult for us to accept that the Notice of Motion was filed out of a genuine belief that the learned trial judge had been biased against the appellant.

“[49] The charge graphically described what the appellant did to Mohd Saiful Bukhari Bin Azlan [PW1.] [It is elementary that it is the evidence, not the charge, which proves an offence].

“[50] The trial was unduly prolonged. It received wide media coverage.

“[56] After such a fine display of judicial impropriety, Y.A. Datuk Haji Abdul Malik bin Haji Ishak now has audacity to patronise us about a sound judicial system by stating, in what sounds like a broken symbol, as follows:

“The perquisites of a sound judicial system are independence and impartiality. For an effective and a strong judicial system, the impartiality of its judges is of paramount importance. But it cannot be denied that the public’s confidence in the judicial system is shaped and moulded more by appearances.”

YA Datuk Haji Abdul Malik bin Haji Ishak rather ungraciously, and without jurisdiction, took a swipe at the judgment of his brother judges of the Court of Appeal including Richard Malanjum, now Chief Judge (Sabah and Sarawak), with the obvious purpose of humiliating them when stating:

“[72] Rowstead did not consider the ‘real danger of bias’ test in determining whether the learned JC should have recused himself notwithstanding the Federal Court had earlier on applied the said test in:

(a) Majlis Perbandaran Pulau Pinang v Syarikat Bekerjasama-sama Serbaguna Sungai Gelugor dengan Tanggungan [1999] 3 MLJ 1, FC; and

(b) Mohamed Ezam bin Mohd Nor & Ors v Ketua Polis Negara [2002] 1 MLJ 321, FC

“[73] Consequently, Rowstead’s suggestion that the request for recusal to be heard by another judge is quite radical. We categorically say that the recusal request, like the present matter, was rightly heard at the first instance by the learned trial judge and followed by this court.

“[74] Rowstead did not consider nor ventilate on section 3 of the CJA read with section 50(1)(a) of the CJA and the Explanatory Statement thereto.

“[75] The recusal application housed in the Notice of Motion concerned a long protracted trial that saw the legal manoeuvrings activated by the appellant at every nook and corner in an attempt to scuttle the criminal trial of the appellant for an offence of sodomising PW1. It is the mother of all trials in Malaysia.”

[I had every right to exhaust all legal remedies open to me. No attempt has been made by anyone, or any quarter, to prevent me from doing so by seeking an order to declare me a vexatious litigant].

As alluded to earlier in this statement, YA would have had the advantage of reading this judgment after it was distributed by letter dated August 11, 2011. This, in effect, amounts to placing, by YA Datuk Haji Abdul Malik bin Haji Ishak, alleged bad character evidence on my behalf.

In view of this, how can I get a fair trial or even the semblance of one before the trial judge now who has been further put in a position to compound biasness against me?

How can I possibly give evidence under oath when the DPP has, in his possession, the same judgment which could be used against me in cross-examination? YA cannot be disabused of what has been fed to YA by YA Datuk Haji Abdul Malik bin Haji Ishak when delivering a judgment dated July 6, 2011 which obviously, having regard to the length thereof, must have been prepared well before July 6, 2011.

This is scandalous.

Then again, why wasn’t the judgment which, even if written after midnight on July 5, 2011 read out in open court so that I could counter and demolish all the allegations made against me by YA Datuk Haji Abdul Malik Bin Haji Ishak?

It is elementary no one should be condemned, unheard. This is axiomatic. As far back as August 12, 1999 the Federal Court, the highest court in the land, in Insas Bhd and Anor v Ayer Molek Rubber Company Bhd and others had occasion, after adverting to the authorities on the position to rule,

“The offensive remarks made by the Court of Appeal against the High Court, the applicants and their counsel ought to be expunged from the judgment of the Court of Appeal, as it had a tendency to bring the whole administration of law and order into disrepute. Judicial pronouncements should be judicial in nature and should not depart from sobriety, moderation, and reserve. It also should not display emotion and intemperance, as displayed in the judgment of the Court of Appeal.”

Adverting to an Indian Supreme Court case of State of Uttar Pradesh v Mohd Naim, the Federal Court had occasion to adopt what was said there as follows;

“If there is one principle of cardinal importance in the administration of justice, it is this: the proper freedom and independence of judges and magistrates must be maintained and they must be allowed to perform their functions freely and fearlessly and without undue interference by anybody, even by this court. At the same time it is equally necessary that in expressing their opinions, judges and magistrates must be guided by considerations of justice, fair play and restraint. It is not infrequent that sweeping generalizations defeat the very purpose for which they are made. It has been judicially recognised that in the matter of making disparaging remarks against persons or authorities whose conduct comes into consideration before courts of law in cases to be decided by them, it is relevant to consider: (a) whether the part whose conduct is in question is before the court or has an opportunity of explaining or defending himself; (b) whether there is evidence on record bearing on that conduct justifying the remarks; and (c) whether it is necessary for the decision of the case, as an integral part thereof, to animadvert on conduct. It has also been recognised that judicial pronouncements must be judicial in nature, and should not normally depart from sobriety, moderation and reserve.”

In Insas, the Federal Court adopted what was said in AM Mathur v Pramod Kumar Gupta & Ors when dismissing an apparently unsustainable review petition which had certain derogatory remarks against AM Mathur, a senior advocate and also the ex-Advocate General of the State. The Court had occasion to hold,

“Judicial restraint and discipline are as necessary to the orderly administration of justice as they are to the effectiveness of the army. The duty of restraint, this humility of function should be a constant theme of our judges. This quality in decision-making is as much necessary for judges to command respect as to protect the independence of the judiciary. Judicial restraint in this regard might be better called judicial respect, that is, respect by the judiciary. Respect to those who come before the court as well as to other co-ordinate branches of the State, the executive and the legislature. There must be mutual respect. When these qualities fail or when litigants and public believe that the judge has failed in these qualities, it will be neither good for the judge nor for the judicial process. The Judge’s Bench is a seat of power. Not only do judges have power to make binding decisions, their decisions legitimate the use of power by other officials. The judges have the absolute and unchallengeable control of the court domain. But they cannot misuse their authority by intemperate comments, undignified banter of scathing criticism of counsel, parties or witnesses. We concede that the court had the inherent power to act freely upon its own conviction on any matter coming before it for adjudication, but it is a general principle of the highest importance to the proper administration of justice that derogatory remarks ought not to be made against persons or authorities whose conduct comes into consideration unless it is absolutely necessary for the decision of the case to animadvert on their conduct.”

Chief Justice of India, Bhagwati, in State of Madya Pradesh & Ors v Nandlal & Ors, in expressing his strong disapproval of the strictures made by the judge, stated:

“We may observe in conclusion that judges should not use strong and carping language while criticising the conduct of parties or their witnesses. They must act with sobriety, moderation and restraint. They must have the humility to recognise that they are not infallible and any harsh and disparaging strictures passed by them against any party may be mistaken and unjustified and if so, they may do considerable harm and mischief and result in injustice. Here, in the present case, the observations made and strictures passed by BM Lal J were totally unjustified and unwarranted and they ought not to have been made.”

How could I under these circumstances give evidence under oath?

YA, when making the order for the witnesses offered to the defence for interview in court, gave a lifeline to the witnesses in stating in open court that they could refuse to be interviewed. YA did not in doing so evenly handle the scales of justice. YA created and perpetuated an imbalance unbecoming anyone holding the mantle of justice. In fact, the Prime Minister, Datuk Seri Najib Razak, and his wife, Datin Seri Rosmah Mansor, former Inspector-General of Police, Tan Sri Musa Hassan, and SAC Datuk Rodhwan Ismail who featured prominently in the evidence of PW1 came to the interview room echoing similar protests namely, “We are not prepared to be interviewed” with the Prime Minister saying YA suggested this could be done. These were material witnesses compelling the defence now to resort to causing subpoenas to be issued for their presence.

YA has created a position under which I cannot give evidence under oath. I say, with all the force at my command, that I would have been prepared and willing to give evidence under oath but for the handicaps foisted on me, in the manner YA has conducted the trial and in the manner in which the Court of Appeal judgment dated July 6, 2011 would have come to the notice of YA with regard to what I have stated herein before.

My trial is an adversarial one and YA ought not to have descended into the arena by suggesting witnesses offered to the defence could deny to be interviewed. It did not come within the province of YA to do so.

My alibi witnesses made known to the prosecution were in fact included in the prosecution list of witnesses which was not supplied to my lawyers. They were defence alibi witnesses. I am informed this is the first time this has been done.

In fact, the owner of the unit 11-5-2, Haji Hasanuddin bin Abd Hamid, had been harassed by the police for a total of 30 hours in the recording of his statements which were all video recorded. This was obvious when he was interviewed by the defence lawyers in my presence. The police investigation has scuttled my defence.

To make a mockery of the situation, the prosecution offered at the close of their case an alibi witness named, Fitria binti Dipan, who by their own admission cannot be traced.

THE COMPLAINANT’S ALLEGATIONS ARE PURE FABRICATION

As I have said at the outset, I categorically deny the allegations made against me by the complainant.

The complainant stated in evidence on June 26, 2008 he arrived at Kondominium Desa Damansara at 2.45pm to discuss work matters and hand over documents given to him by one Ibrahim Yaakob [my Chief of Staff] to myself. He says he stopped his van at the security post and mentioned the code name “Mokhtar” to the guards at the condominium before being allowed in. He parked his vehicle and took the lift to Unit 11-5-1 where I was allegedly seated at a dining table in the living room. He says he sat down at the same table and started the discussion. He told the court of the crude manner in which I had allegedly asked for sex.

The following appears in his evidence thereafter (as attached).

When questioned, he answered that he was angry and scared and that he was not prepared to do it but purportedly because I had appeared angry, he eventually obliged. It has to be observed at this stage the complainant could have, on his own admission in examination-in-chief, left the room as there is no evidence of any attempt by me to latch the door from inside.

He had further alleged that he was ordered into the bedroom and that he did enter out of fear. Even at this stage, the complainant had the opportunity to leave the living room. He did not do so. The rest of the evidence in this regard clearly showed that the complainant had every opportunity on every occasion to flee but he did not do so. His reason was that he was petrified by fear. But such a reason flies against the facts. Here is a man in his early twenties, a six-footer, physically fit and robust and with powerful connections in the top police brass as well as the political elite with access to the very inner sanctum of power. Additionally, he has also been a key Umno student operative, having undergone the rigorous training conducted by the Biro Tata Negara of the Prime Minister’s Department. And here I was a 60-year-old man with a history of back injury who had undergone a major back surgery holding no position of power. If indeed I could have exercised any kind of undue influence or mental pressure on him, this could have been easily neutralised by a quick phone call to his connections. As regards the fear of physical harm, it would take a great stretch of the imagination to suggest that I could pose any physical harm to him.

Under cross-examination, the following significant evidence was elicited from the complainant. He admitted that he had brought along lubricant and had himself voluntarily and without hesitation applied it. He claimed that carnal intercourse took place and that it was painful and coarse. However, this was clearly not borne out in the medical evidence in the prosecution case suggesting fissures or tears. After the alleged act, he testified that he had a drink and engaged in a friendly conversation with me. Startlingly, no attempt was made by the complainant to seek immediate medical attention. Instead, he attended a PKR function the following day. In the evening, he joined a meeting of the Anwar Ibrahim Club at my house without showing any sign of either emotional or physical discomfort let alone trauma. On the contrary, he was going about matters in a calm and confident manner. His conduct therefore is totally inconsistent with having been violated. In any event, he neither made a police report nor sought medical attention, notwithstanding that two days prior to the alleged act, he had met with Najib and Rosmah as well having talked on the phone with Musa Hassan and met with Rodhwan at a hotel.

It is obvious, from the evidence above, that the complainant was lying through his teeth although YA, despite the compelling evidence to the contrary, found him a truthful witness at the close of the prosecution case. This defies logic, let alone the law.

Then again, the expert evidence with regard to DNA led in the course of prosecution case through PW4, Dr Seah Lay Hong, and PW5, Nor Aidora Saedon, was highly questionable in that crucial information pertaining to the DNA analysis of both the said witnesses which they were obliged to furnish to the court was suspiciously withheld despite them confirming the existence of such information. The real possibility that the samples analysed were contaminated and even planted were completely disregarded despite such possibilities coming clearly within guidelines set by the international forensic community which were completely ignored, if not, blatantly disregarded by PW4 and PW5 to fit the prosecution’s case. It is obvious had the said possibilities been explored, the conclusions reached would have been very different in that the complainant’s own semen was found in his own anus, there was ample evidence of contributors other than Male Y around the complainant’s perianal, lower and higher rectal region and there was clear evidence of the samples having been tampered with before they were sent for analysis. In such circumstances, the integrity of the said samples was surely compromised. Furthermore, the impartiality of PW4 was highly questionable having regard to the way in which she completely dismissed the very high possibility that the samples sent to her would have degraded to a certain degree by the time they reached her which such degradation was completely absent from all samples in this case. This clearly points to the obvious reality that the samples sent for analysis could not have been what were extracted from the complainant’s person.

Trial within a trial

The Gestapo-like manner in which I was arrested and the subsequent detention and interrogation by the police all betrayed the hands of the political masters at work. What was the need to send in balaclava-clad commandos to effect the arrest if not to attempt to flex political muscle and to display pure vindictiveness? These startling facts were completely ignored by YA.

YA had made an earlier ruling to exclude the recovery of certain items including water bottle, Good Morning towel, toothpaste from the lock-up at IPK, Kuala Lumpur where I had been detained overnight from 16.7.08 to 17.7.08. However, you reversed this ruling subsequently which is something most shocking and unprecedented.

Although in the trial within a trial, I had adverted to the role of Taufik and Supt Jude Pereira, the prosecution elected only to call Taufik in rebuttal in the trial within a trial. Taufik attempted to produce a photostat copy of the warrant of arrest which was only marked as an ID and, therefore, could not be considered as evidence in the trial within a trial. A photostat copy of a document is not admissible as evidence in a court of law. It was in the trial within a trial that primary evidence of the document ought to have been given if the original record had been lost or destroyed.

The prosecution could not, by producing the original warrant of arrest in the main trial, cure the infirmity. It is in evidence that three copies of the warrant of arrest were in the possession of Supt Jude Pereira. The evidence of the warrant of arrest was available during the trial within a trial.

Even Supt Jude Periera, whose role was adverted to by me during the trial within a trial, chose not to take the stand despite having had the opportunity to have produced the original copy of the warrant of arrest in the trial within a trial.

It was during the trial within a trial that Supt Jude Periera should have testified. It was clearly unlawful for the court to accept Supt Jude Periera’s evidence in the general trial for the purpose of rebutting my evidence in the trial within a trial that the DNA profiling from the Good Morning towel, toothbrush and mineral water bottle had been obtained by unfair methods and unfair means and my arrest, therefore, had been procured unlawfully.

In fact, Supt Jude Periera’s evidence in the general trial confirms that there had been non-compliance with Rule 20 of the Lock-up Rules, 1953 in that I, after my arrest on 16.7.08, had not been placed in the lock-up from 6pm to 6am the following day. The provisions of Rule 20 are mandatory.

If this was the position in our case, which it was, then, clearly, my being taken to the HKL in breach of Rule 20 reflected unfair means and unfair methods being employed by the police to obtain the DNA profiling from the items set out hereinbefore. The position is further compounded by the evidence of Supt Jude Periera in the general trial that he did not direct police personnel in charge of the lock-up not to touch the said items despite the police personnel in the general trial before the trial within a trial, clearly, saying that Supt Jude Periera had done so.

So the position comes to this, Supt Jude Periera, in his evidence on oath in the main trial, supports the defence case that unfair methods and unfair means had been used by the police to obtain DNA profiling from the items set out hereinbefore.

From the ruling made by the court to exclude the items, it is clear it was based on unfair means and unfair methods employed by the police meaning it was by trick and deception that the police attempted to introduce the DNA evidence.

In any event, from the evidence of DSP Taufik given in the trial within a trial and the general trial, the grounds of arrest could not have been given by him to me in Segambut as this is, clearly, contradicted by the evidence of S.N. Nair and myself.

The question of challenging evidence given in the main trial by DSP Taufik and Supt Jude Periera does not arise. It was the assertions made under oath by me that my arrest was unlawful and unfair methods and unfair means had been used to obtain his DNA profiling in the trial within a trial stood unchallenged by the prosecution by leading lawful evidence in rebuttal of those assertions. In fact, YA should have drawn an adverse inference against the prosecution for not having done so.

FORENSIC EVIDENCE

The prosecution case rests on the evidence of the DNA and so-called “findings of seminal fluid” or “sperm” as they claim. As a matter of fact, this is the only forensic evidence upon which the foundation of the prosecution’s so-called proof rests. Yet, this foundation is erected on shaky grounds though this has not prevented them working in hand in glove with the powers that be to mount an insidious and relentless campaign to vilify me.

The fact is that there is not an iota of evidence, DNA or otherwise, that has ever been found in the premises of the alleged act, not in the wash room, bedroom, carpets or anywhere else where such evidence ought to have been found.

Supt Pereira, despite being instructed to keep the HKL samples (marked B1 to B10) in a freezer, deliberately defied the instruction of Dr Siew Sheue Fong (HKL forensic doctor) and also admitted that he was in serious breach of the IGSO (he even stated he took full and personal responsibility for breaking of the IGSO), when he deliberately kept the HKL samples in his office cabinet for about 43 hrs before delivering them to the chemist. One must not forget that the alleged act was supposed to have occurred two days prior to the said samples having been extracted. Coupled with this 43-hour delay in delivery to the chemist, it would mean that the samples were already at least 90 hours old by the time they were examined by the chemist. Undoubtedly, the samples would have totally degraded. Yet evidence by the prosecution claimed that no degradation of any consequence had occurred.

In any event, even the 43-hour delay alone would have seriously compromised the integrity of the samples in terms of its deterioration due to bacterial action. Also, by not storing the samples in the police exhibit store (which will accord access only to him), his deliberate omission of such strict rules of the IGSO has, by his very act, presented an opportunity and possibility of tampering of the samples as access to others was made easier. This was disregarded.

There are also no cogent or compelling reasons both in law and practice for Supt Jude Pereira to cut open P27 (the big tamperproof bag containing all the HKL samples which was sealed and handed over to him), ostensibly to re-mark them (B1 to B10). It is clear that this act was just a convenient excuse to get access to the individual samples which by themselves were clearly not tamperproof as they were deliberately “sealed” with ordinary and easily removable tapes and easily removable HKL paper seals.

Dr Siew Sheue Fong, as evident in court, was most reluctant to refer to his medical notes during cross examination despite being unable to remember details. During the break he was caught surreptitiously taking a sneak peek of his notes. This dishonest act of a professional doctor who ought to have conducted himself in a fair and independent manner was blatantly ignored. Many a time Dr Siew and Dr Mohd Razali Ibrahim deliberately chose not to answer pertinent questions put to them by my counsel. Instead Dr Siew and Dr Razali’s evidence was accepted without reservation.

Dr Seah Lay Hong (the chemist) gave evidence that when she received the 12 HKL samples there were two samples that were marked as taken on very different dates, she testified she did nothing to seek clarification from Dr Siew . She further testified that she “gave the benefit of doubt” to Dr Siew. My lawyers submitted strenuously that such acts and/or omissions amount to a serious breach of the cardinal rules of international lab protocols and those of the Jabatan Kimia Malaysia. Despite such blatant exposures and abject failures of non observance of strict rules, Dr Seah’s evidence was well received and in totality when it ought to have been jettisoned in totality for reasons of incompetence and gross negligence.

The defence evidence will show that the prosecution claim to have proof of the presence of “seminal fluid” or “sperm” is completely unfounded. In fact, this purported proof is nothing but pure fabrication, a fact which is not that unusual considering the past history of the prosecution in this regard. If they had had any such forensic evidence, they would have guarded it for dear life rather than let it being handled in such a sloppy manner.

SUMMATION

Your Lordship has failed to ensure a fair trial as demonstrated, inter alia, by the following instances:

1. Your refusal during the course of the trial to order disclosure of material critical to my defence, most of which you thought was sufficiently relevant and which fairness required that you should order it to be disclosed before the trial. Your failure to fairly and properly exercise his judicial discretion to order disclosure was not only contrary to Malaysian laws but violated the international standards expected of a modern state which purports to practice the rule of law.

2. Your refusal to act accordingly either to take cognizance or to hold to account those responsible for the flagrant acts of leaking and publishing in the media of prosecution submissions before the matter was heard in court; your utter indifference to my protestations about these transgressions has wittingly or unwittingly facilitated the conspiracy to vilify me in the court of public opinion even as the trial is in progress.

3. Your failure to order that witnesses critical to my defence attend the trial to testify, in circumstances where their involvement was patently material to the issues at trial and recorded under oath in the complainant’s testimony and admitted by statements made by these witnesses to the media. These witnesses relate to the circumstances in which the complainant came to make his early complaints against me. Nothing could be more material to the credit of the complainant.

4. Your finding the complainant to be “a truthful witness” at the close of the prosecution case clearly amounted to prejudgment demonstrating in the process a clear bias against me. Consequently, you have deprived me of my constitutionally guaranteed right to a fair hearing the effect of which is to entitle me to an unconditional release with the charges levelled against me falling to the ground. Notwithstanding this, you have not only failed to order my release but have adamantly refused to recuse yourself from further presiding at the trial.

5. Your arriving at the conclusion that the complainant was a witness of truth without first hearing the evidence of the defence would render the continuation of this trial an exercise in futility. What use would there be for me to adduce evidence to show that the complainant is in fact a liar if you have already found “him to be a truthful witness” and that his evidence is reliable and conclusive and by virtue of that irrefutable? It is untenable and the law does not allow you to do what you have done.

6. Your finding that the complainant has corroborated himself by complaining to the medical doctors of sexual assault was a glaring error of law apart from it being in gross disregard of a finding of fact, that is, that the clinical finding had indicated no evidence of penetration. Additionally, your failure to question why the prosecution has for no apparent reason refused to call in the first medical officer who had examined the complainant to testify. Did it not cross your mind that this failure was prompted by the need to suppress evidence that might be unfavourable to the prosecution?

7. Your accepting without hesitation the forensic evidence as corroborative of the complainant’s account in circumstances where there were obvious concerns about how those samples were obtained, labelled, stored and analysed.

CONCLUSION

This entire process is nothing but a conspiracy by Prime Minister Datuk Seri Najib Razak to send me into political oblivion by attempting once again to put me behind bars. I therefore declare that I have no faith whatsoever that justice will prevail in these proceedings notwithstanding the valiant efforts made by my defence team. As I have said at the outset, this is not a criminal trial. It is a charade staged by the powers that be to put me out of action in order that they remain in power.

In 1998, Tun Dr Mahathir Mohamad did just that and by his Machiavellian use of all the organs of power of the State, succeeded in getting me convicted for 15 years for offences that I had never committed. Such was the tyranny and injustice done to me then. And such is the tyranny and injustice being perpetuated today.

Najib Razak is doing the same thing as his mentor did, which is to employ all means within his power through the media, the police, the Attorney-General and the judiciary in order to subvert the course of justice and to take me out of the political equation.

This relentless conviction to send me back to prison became all the more imperative because of the major victories gained by the opposition Pakatan Rakyat in the March 2008 elections. Their worst fears were confirmed when it became clear that once my legal disqualification was over I would be contesting for a parliamentary seat and if I won, would be elected leader of the opposition.

It was therefore no coincidence that this new conspiracy surfaced three months after the March 2008 victories and the formal charge against me was made just one month prior to my contesting the Permatang Pauh parliamentary seat. The sequence of events that unfolded prior to the formal charge appeared to be lifted from the plot of 1998 minus, in this latest episode, the black-eye affair and the purported victims being led into court as partners in crime. In this second episode, the conspirators have tweaked the plot to make the complainant take on the role of a helpless victim, having realised that the 1998 method of employing Stalin-like confessions and the portrayal of the alleged victims as remorseful and repentant sexual deviants were just too much for the public to believe.

Hence, during the entire examination of the complainant, the prosecution left no stone unturned in their attempt at painting the picture of a helpless, naive and innocent young man who is a witness of truth and whose testimony should be believed regardless of any evidence to the contrary. The fact is that in the entire scheme of things, the complainant, who was just a university drop out working part time helping out my chief of staff, is essentially a pawn being employed by the shady plotters to achieve their devious ends in the conspiracy. And yet it was the decision of the court after the close of the prosecution case that he indeed is a truthful witness.

The preparation entailed in this conspiracy was most elaborate and went all the way to the Prime Minister himself and his wife Rosmah Mansor both of whom by the complainant’s own admission had met him in their residence where he purportedly complained of being sexually assaulted. The initial statement by Najib that he had met with the complainant merely to discuss about a scholarship was a blatant lie only to be retracted later after various exposes were made via the social media and the Internet blogs. It was obvious that neither Najib nor Rosmah would not want to be seen to be part of the conspiracy being themselves embroiled in a series of other scandals the details of which have been raised in Parliament which to date have never been categorically refuted. But the stakes in this conspiracy are so high that nothing can be left to pure chance for indeed the prospect of the Umno-led Barisan Nasional losing power to Pakatan Rakyat is becoming more real by the day.

The main thrust of the conspiracy was to fabricate this sodomy charge in order to inflict maximum damage to my character in the run-up campaign to the by-elections. Towards this end, an intense and virulent media blitz was launched concurrently with the staging of rallies and ceramahs where the focus of the debate was not on any social, economic or even political issues but purely on my person and my morality. The plotters for reasons known only to themselves became privy to information which would be used subsequently by the prosecution and went to town in an orgy of character assassination calculated no doubt to ensure a humiliating defeat for me in the polls. But Allah is great and instead of losing, I won the Permatang Pauh seat with a thumping majority of 15,000 votes.

But the zeal to consign me to political oblivion continues unabated. Najib seems to think that by destroying my political future, it would also destroy the prospects of Pakatan Rakyat ever coming to power.

Hence, nothing is spared to ensure that I will be convicted in order that the Umno-led Barisan government continues to rule.

Having regard to all the above, I now wish to state that this trial is for all intents and purposes a show trial. I say this not to mock your Lordship nor with animosity towards anyone personally but I sit before you in the dock only to speak what I know and what I believe with conviction to be the truth. And this conviction is borne by having been in public service for more than 40 years, a quarter of which was spent within the walls of incarceration in Kamunting and in Sungai Buloh. The fact remains that I was condemned to imprisonment not because of any crime that I had committed but for my political beliefs and convictions and more significantly because back in 1998 I had posed a clear and present threat to the more than two decades of autocratic rule of Mahathir.

I say it because as I’ve stated earlier, the court’s integrity has been completely compromised and bears all the classic symptoms of a show trial where the script has been effectively written and the outcome a foregone conclusion. I say it because as a presiding judge you have demonstrated beyond the shadow of a doubt your complete lack of impartiality. I say it because you have consistently refused to recuse yourself even in the face of mounting evidence of your bias against me. I say it too because you have persistently turned a blind eye to the gross violations of protocol and procedure committed by the prosecution while at the same remaining impervious to my protestations about these blatant irregularities that would have without more alerted any impartial judge as to the malice and bad faith of the prosecution.

In the matter of the duty of a judge, the Holy Quran commands:

“And when you judge between mankind

Then you judge justly.” — Surah An-Nisaa:58

1 November 2014

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Sweden officially recognises the State of Palestine, the country’s foreign minister has announced, making it the first European Union country to do so.

“Today, the government takes the decision to recognise the state of Palestine,” Margot Wallstrom (pictured) said in a Thursday statement. “It is an important step that confirms the Palestinians’ right to self-determination.”

The 130 other nations that already recognise a Palestinian State include Hungary, Slovakia and Poland although these three countries took this step before joining the EU. Thursday’s declaration was not unexpected; newly-elected Swedish Prime Minister Stefan Lofven announced during his swearing-in speech earlier this month that it would come, although few observers anticipated a formal announcement so soon.

Israel has protested Sweden’s decision and the Israeli Foreign Ministry summoned the Swedish ambassador shortly after Lofven’s statement. Foreign Minister Avigdor Lieberman called Wallström’s announcement on Thursday “unfortunate” and said it would only serve to reinforce extremist elements.

Palestinians are seeking to create a state in the Israeli-occupied West Bank and in Gaza, with East Jerusalem as their capital. They demand also that Israel withdraws from occupied Palestinian territories. With the near collapse of direct peace negotiations with Israel, Palestinian authorities have been trying to lobby the international community to recognise Palestinian sovereignty. The UN General Assembly voted in 2012 to upgrade Palestine’s status to that of a non-member observer, giving Palestinian officials access to UN agencies, but European Union countries had – until Sweden’s announcement – not given their full recognition of a Palestinian state.

“Today’s recognition is a contribution to a better future for a region that has for too long been characterized by frozen negotiations, destruction and frustration,” Wallstrom wrote in the Dagens Nyheter newspaper. “Some will state this decision comes too soon. I am afraid, rather, that it is too late.”

Palestinian President Mahmoud Abbas said he welcomed the announcement shortly after it was made on Thursday morning and called on other countries to follow Sweden’s example. Communicating via his spokesman, Abbas found the decision “brave and historic.”

1 November 2014

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CNA

Attorney General Mukul Rohatgi complied with a Supreme Court order to submit the names of those being scrutinised for allegedly hiding funds in Swiss bank accounts.

India’s government on Wednesday (Oct 29) handed a top court a secret list of 627 people suspected of stashing “black money” in foreign banks beyond the reach of tax authorities.

Attorney General Mukul Rohatgi complied with a Supreme Court order to submit the names of those being scrutinised for allegedly hiding funds in Swiss bank accounts. “The government of India gave the entire list of HSBC accounts. There are about 627 accounts. We gave it in a sealed cover to the court,” Rohatgi told reporters outside the court.

Since coming to power in May, the right-wing government has been under pressure to reveal the names, after pledging during the election campaign to “bring back black money within 100 days” of being elected. The ruling party had accused the previous Congress government of failing to crack down on Indians parking billions of untaxed dollars abroad, an issue that has become a political lightning rod.

Rohatgi Wednesday urged the court not to make the names public, saying this would place India in danger of breaching tax treaties with various countries. The court ruled that the documents would remain secret, and would instead be handed over to a court-appointed special investigating team.

The court took up the issue following petitions from anti-corruption activists who have waged an aggressive campaign to prosecute wealthy people with undeclared funds offshore.

The government on Monday handed the court the names of seven business people and one mining company facing possible prosecution for tax evasion as a result of its investigations. But the government had argued against revealing the rest of the names until after its investigations found firm evidence that their accounts held black money.

Finance Minister Arun Jaitley on Wednesday insisted that the government had nothing to hide, amid criticism that it was seeking to shield powerful people. India’s rumour mills have been in overdrive about who may be on the so-called “black money list”.

Global Financial Integrity, a Washington-based group that tracks money transfers, said Indians surreptitiously shifted US$344 billion overseas between 2002 and 2011, depriving India of vital tax revenues. But that money abroad is a fraction of illicit funds and assets concealed in India, experts say.

Prime Minister Narendra Modi set up a team of regulators and ex-judges to identify illicit fund-holders and repatriate money after taking power. But it has encountered difficulty obtaining details of account-holders from foreign nations due to financial confidentiality issues.

The government said on Monday that Swiss authorities had agreed to provide information to help India investigate leaked accounts, after earlier saying such assistance would break Swiss law.

1 November 2014

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Hari Ashura adalah antara ” Hari-hari Allah”, yakni hari-hari yang dibesarkan dalam shariat kita. Kita disuruh berpuasa pada harinya, jika di zaman awal Islam suruhan puasa pada Hari Ashura adalah wajib, selepas diwajibkan puasa Ramadan, puasa Hari Ashura menjadi sunnah yang muakkadah.

Hari Ashura adalah hari yang sangat bersejarah, hari yang Allah takdirkan melepaskan orang-orang yang dikasihinya daripada kesusahan dan dimenangkan mereka’. Hari yang Saiyyidina Musa alaihi as salam selamat menyeberang Lautan Merah, hari Fira’aun mati lemas tenggelam.

Hari Saiyyidina Nuh melabuhkan bahteranya di tasa Jabal al-Juddi, hari saiyyidina Ibrahim terselamat dari bakaran api yang marak membakar, hari Saiyyidina Yunus dimuntahkan oleh ikan Hut. Hari taubat diterima, amalan kebajikan digandakan pahala, kebenaran insyaallah akan menang.

Hari ini juga adalah hari Saiyyidina Husein menemui kesyahidannya di Karbala. kata Imam Ibn Taimiyyah, antara hikmahnya ialah supaya pada hari besar ini, kita penuih syukur mengenangkan peristiwa2 besar dalam sejarah pejuang kebenaran yang memenangkan kebenaran, Hari ini kita bersabar di atas tragedi yang menimpa Saiyyidina Husein, cucu kesayangan Rasulullah sollallahu ‘alaihi wassallam. Syukur dan sabar sentiasa bergandingan.

Nampaknya episod DSAI pun meleret-leret sehingga menemui tarikh keramat ini, mashaallah , menemui Hari Ashura. Ianya adalah sempena yang baik. Saya optimis, walaupun mendengar belabagi telahan negatif dari sahabat2 dan rakan2.

DSAI, marilah kita sambut 10 muharram ini dengan penuh kesyukuran, kita angkat tangan ke langit dengan penuh tawaddu’ kepada Tuhan minta keberkatan, kita berjaga malam dalam peribadatan, kita berpuasa siangnya tanda kepatuhan.

DSAI seakan telah sampai di pinggir Laut Merah, seperti dalam kisah Saiyyidina Musa dikejar Fir’aun, ketika orang ramai mula gelisah, tentera musuh mengikut di belakang, sedang di hadapan lautan luas terbentang, Jangan gusar “Tuhan bersama kita”. Belahlah laut itu dengan kalimah Tuhan, insyaallah Fir’aun akan tenggelam.

Salam ta’zim , salam penuh kasih, salam perjuangan.
Semoga DSAI sentiasa di dalam Tilikan Kasih Tuhan

Nukilan Sdra Zaidi

31 October 2014

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Malaysiakini

Elizabeth Evatt is Australia’s first woman Federal Court judge and the 81-year-old legal eagle is in Malaysia to observe Anwar Ibrahim’s sodomy appeal.

However, she is puzzled as to why the sodomy law seems to be mainly applied on the opposition leader.

Speaking to reporters at the Palace of Justice in Putrajaya, Evatt, who is representing the International Commission of Jurists, said she noticed that not many people are charged with sodomy in Malaysia and most of the cases involved Anwar.

She also described the sodomy law as discriminatory and a violation of human rights.

“This is a relic of the British legal system which even it (Britain) had abolished,” she said.

Asked whether she observed any interference with regard to the proceedings, Evatt said there had been no such incidents thus far.

“I guess we will have to wait for the outcome,” she added.

Meanwhile, another international observer Danthong Breen said if the issues raised during the appeal have created reasonable doubt, then it warranted an acquittal.

“If doubt has been proven, that is enough to get an acquittal,” added the International Federation of Human Rights representative.

The two are among five international observers present at the Federal Court.

The others are International Bar Association’s Grainne Mellon, Centre for International Law’s Harry Roque, Centrist Asia Pacific Democracy International’s Fernando Penan and Interparliamentary Union, Lawasia and Australian Law Council, which is represented by Mark Trowell.

The Court of Appeal had overturned the March 7 High Court’s decision and convicted Anwar of sodomising his former aide Mohd Saiful Bukhari Azlan.

The appellate court also sentenced him to five years imprisonment.

Anwar has always maintained that the sodomy charge was fabricated by his political rivals, but the government has denied this.

31 October 2014

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31 October 2014

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FOR 16 years Anwar Ibrahim, leader of Malaysia’s opposition, has battled dodgy charges of sodomy and corruption designed to keep him from power. One way or another, a court hearing which began on October 28th looks like the end of the road. As The Economist went to press Mr Anwar was reaching the conclusion of his final appeal against a five-year prison sentence, imposed in March, for allegedly having sex with a male aide (sodomy is illegal in Malaysia). It leaves Pakatan Rakyat, his three-party coalition, on shaky ground.

Mr Anwar has been here before. He was once the rising star of the United Malays National Organisation (UMNO), which has governed Malaysia since independence in 1957. But a bust-up with Mahathir Mohamad—the prime minister for over two decades—saw him dumped from the party in 1998 and convicted of sodomy soon after. That conviction (though not another for corruption) was quashed in 2004, after Mr Anwar had spent more than five years in jail. He has since fashioned the first serious challenge to UMNO rule.

The latest case looks just as fishy as the first and began in 2008. The charges were dismissed in 2012, but in March an appeal court overturned Mr Anwar’s acquittal. That came just weeks before a by-election that would probably have enabled Mr Anwar to become chief minister of Selangor, Malaysia’s richest state and a prime spot from which to challenge Najib Razak, the prime minister, at general elections in 2018. In the months leading up to his appeal, prosecutors have hounded opposition politicians with charges of sedition and defamation. One of Mr Anwar’s lawyers is among eight opposition politicians charged so far. So cynically political have sedition charges against Pakatan politicians appeared that Malaysia’s usually docile lawyers took to the streets in protest.

Mr Anwar’s conviction bars him from holding a political post for five years after his sentence is served. Going back to jail would thus probably end the political career of the 67-year-old, who as leader of Pakatan has enjoyed unprecedented success. Since 2008 the coalition has taken huge bites out of the dominance enjoyed by Barisan Nasional, the ruling alliance headed by UMNO. At the general election in 2013 Pakatan won just over half the popular vote. But under Malaysia’s first-past-the-post—and heavily gerrymandered—electoral system, it got less than a majority of the seats in Parliament.

For all its achievements, Pakatan is a fractious alliance. It groups Mr Anwar’s People’s Justice Party (PKR) with the Pan-Malaysian Islamic Party (PAS), a devout Muslim outfit, and the Democratic Action Party (DAP), a secular, ethnic-Chinese one. Until now Mr Anwar’s charisma—and his legal travails—have kept these parties together despite their differences. But the divisions have widened.

For much of this year the coalition squabbled in unseemly fashion over who should fill the plum post in Selangor, earmarked for Mr Anwar before his conviction rendered him ineligible. PAS leaders torpedoed a plan to install Mr Anwar’s wife, Wan Azizah, PKR’s president and a respected politician in her own right. The imperious way in which PKR had proposed this dynasticism raised hackles throughout Pakatan, although some say the Islamists’ main worry was the prospect that a woman—and a relatively liberal one to boot—might one day run the coalition. After a six-month stand-off and the intervention of the local sultan, the job of chief minister has gone to Azmin Ali, Ms Azizah’s deputy. But the “childish infighting” has dented Pakatan’s image among voters, says Bridget Welsh, an academic.

PAS, the smallest party in the opposition coalition, is also its weakest link. It is distracted by a struggle between progressive Muslims who predominate in its upper ranks and conservatives in its grass roots. The party is growing more illiberal, notably in a renewed push to toughen sharia law in the northern state of Kelantan, its heartland. Widespread criticism of the party’s spoiling role in the Selangor crisis has pushed PAS’s leader, Abdul Hadi Awang, closer to the conservatives, reckons Wan Saiful of IDEAS Malaysia, a think-tank. Government barons would love to lure PAS to their side.

Were he to remain free, Mr Anwar would continue to be the best person to ward off these threats. But he is no longer quite as crucial to the opposition as he once was. Though his coalition has made impressive gains, Mr Anwar has twice failed to lead it to outright victory. He can still raise a crowd. On October 27th Malaysia’s oldest university appeared to cut the electricity to parts of its campus in order to discourage students from attending a rally in his defence. But his story is less compelling to young Malaysians than it was to those who heeded his first calls for change in 1998. Another jail sentence would make a martyr of him; it would also give his party’s younger leaders a chance to shine.

In the PKR Mr Azmin is the most promising of them. He cut his teeth as Mr Anwar’s private secretary during his years in government and has proven a loyal deputy. But the capable 50-year-old can readily move out from his mentor’s shadow. Mr Azmin has greater experience than either Nurul Izzah Anwar, Mr Anwar’s impressive daughter, or Rafizi Ramli, a party strategist somewhat tarnished by the Selangor debacle. Healing the wounds in that state would help convince voters that Mr Azmin could run the country competently.

As for the prime minister, his people like to push the line that he is a moderniser doing away with his party’s thuggish ways. Certainly, it is hard to see how Mr Anwar’s case will benefit Mr Najib even if he thinks him deserving of punishment. He will want to see the back of a case that is damaging the country’s reputation abroad. But it all underscores how weak Mr Najib’s position has become.

With a general election still four years away, the prime minister faces a threat from within his own party, notably from conservative factions close to Dr Mahathir, who still pulls strings from the wings. Whispers abound that an effort to unseat Mr Najib is imminent. As always, the prime minister touts policies intended to get Malaysia’s economy motoring. He has never looked less capable of carrying them out.

The Economist

http://www.economist.com/news/asia/21629451-jail-malaysias-opposition-leader-would-not-necessarily-clobber-his-coalition-lousy-sequel

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