Absence of evidence is not evidence of absence

MARCH 13 — An explosive expose of the Altantuya Shaariibuu murder hit the streets of Paris on March 5 with a two-page expose in the Liberation newspaper. An online version has been posted on its website in PDF format.

The expose came with four colour photographs of the main personalities involved including Razak Baginda, who was charged with abetting the murder and who has been acquitted by the High Court.

Everyone knows that the Barisan Nasional government has done many stupid things. However, its decision not to appeal Razak’s acquittal was, no doubt, a stupidity of the highest order. It was unfortunate that hitherto no reasons have been advanced by the government in not filing an appeal against such an absurd acquittal.

As far as the men on the street are concerned Altantuya’s bloody tragedy began with Razak. Without his intimate involvement with the late Altantuya nobody knew who Altantuya was.

Whether Deputy Prime Minister Datuk Seri Najib Razak also knew Altantuya is a matter of speculation. Nevertheless since Razak was close to Najib it is hard to dismiss the speculation that Najib might have also known her.

Without Altantuya’s harassment, Razak had no reasons to engage the services of policemen Sirul Azhar Umar and Azilah Hadri. Why should Sirul and Azilah come into picture if Razak had not contacted them? And why should not Razak have contacted Sirul and Azilah when he was consistently harassed by Altantuya.

Razak needed help to get rid of Altantuya and he got these two policemen. One of them, according to Razak’s affidavit in his application for bail, proudly confessed to him that he had previously killed six people.

The decision of the Attorney-General not to file an appeal against Razak’s acquittal was definitely not a wise decision. It has left many questions unanswered.

The refusal to appeal implies that the decision of the High Court was so strong that there was no room for appellate interference.

If this is the excuse given by the government our short answer will be — do not insult our intelligence.

Since when has the A-G been easily convinced by a decision of the court in the first instance in a crime of murder. Since when has an appeal become an expensive enterprise for the A-G.

If Haneef Basri’s acquittal in Norita Samsudin’s murder prompted the A-G to appeal against such an acquittal, why is Razak’s case different? Why was Razak given preferential treatment vis a vis other murder cases?

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

The reputation and the integrity of our administration of justice has been closely attached to this trial. If the prosecution of Razak brought a glimmer of hope to our justice system, the government’s decision not to file an appeal has thrown that little hope into the drain.

The government’s decision has once again brought our justice system into disrepute. It seems that our justice system will forever become a laughing stock.

The people have a right to know the actual and truthful reasons behind the decision not to appeal. Is it because the decision of the High Court judge was so powerful? Or was it the pressure by the ruling elite that led to the decision of the A-G not to appeal?

You don’t have to earn a degree to come to the conclusion that the latter was definitely the factor which prompted the A-G not to proceed with the appeal.

Legal or political reasons dictate Razak should not easily get off merely on a decision of one High Court judge. In a serious case of this nature, the judgment of the High Court judge must face detailed scrutiny from the appellate court.

Under the present law the prosecution is given two chances of filing an appeal, that is it may appeal to the Court of Appeal and if it still fails there, it has a second chance of filing an appeal in the Federal Court.

When the government decided to press a charge against Razak it presumably had strong evidence preceded by a comprehensive, detailed and thorough investigations. Be that as it may, once it decided to prosecute Razak it would proceed until the end, meaning that it would proceed until the matter reaches the final gatekeeper i.e the apex court.

Do not tell us just because the High Court judge decided Razak was not guilty, such a decision was exceptionally strong thus the prospect of such a decision being overturned by the appellate court is slim.

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

The moment the prosecution set a motion to charge Razak for a crime of abetting this heinous murder, it should be always ready to let its case be challenged by either the defence counsel or the trial judge. In the event the trial judge dismissed its case, as the former did in this case, the prosecution must be able to satisfy the appellate forum that the learned judge had erred in law in dismissing its case.

Simply put, when the prosecution decided to prosecute Razak it should have been ready to complete the job until the end i.e until the final decision by the apex court. Losing the first battle in the trial court should not be taken as an excuse for the prosecution team to abruptly halt the prosecution against Razak.

The unwise decision not to proceed with an appeal is definitely seen as a lackadaisical attitude of the government in combating a serious crime particularly when it involves powerful and influential individuals.

This will certainly affect the investment climate. It goes without saying that investment has strong links with security. If investors feel that their money is not safe they will definitely move it elsewhere — to places where beautiful women are not murdered by C4.

In the final analysis as far as the rakyat are concerned, the judgment of the High Court is not the sole criterion of establishing the guilt or innocence of Razak. The judge may have said that there was no prima facie evidence that Razak had abetted in the murder of Altantuya.

As for the people on the street they sincerely believe that absence of evidence is not evidence of absence.

Mohamed Hanipa Maidin sits on the Pas central committee and is the Pas legal adviser. He is also a lawyer who blogs at peguampas.blogspot.com.