In criminal proceedings, the burden of proof rests on the prosecution to prove that the accused has committed the offence. All the ingredients of the offence must be proven, failing which the accused must be acquitted. And this proof must be beyond reasonable doubt.
Yesterday's verdict by the court of appeal, freeing the two mysterious men who go by the name of Azilah Hadri and Sirul Azhar Umar, despite details of their involvement in the barbaric Altantuya Shaariibuu murder of 1996 shocking the Malaysian public, has given rise to these legal debates.
Understandably, people are shocked. But one should be able to rationally critique the court's decision, devoid of emotion and more importantly of political bias.
In our attempt to enlighten the public (and ourselves) about the decision, Harakahdaily spoke to two criminal lawyers, each of whom gives his take on the acquittal of the duo the public has come to know as Altantuya’s killers.
Lawyer A: I have said all along. This is a staged case.
Lawyer B: Yeah. Not even the judge is interested to establish mens rea.
Harakahdaily: What’s mens rea?
Lawyer B: Working of the mind or the intention behind the murder.
Lawyer A: They are just interested in actus rea.
Harakahdaily: Translation?
Lawyer A: Actus rea is the act itself or the act of murdering someone.
Lawyer B: The main discontentment on the trial was on the failure of the Attorney General to call a material witness like Musa Safri. As such, they failed to establish the mens rea.
Lawyer A: Yes. How could two secret army personnel woke up one morning and decided to kill one beautiful Mongolian lady, who has no relationship whatsoever with them.
Lawyer B: Had Musa Safri been called, he could have made a statement under oath on whether he instructed them or not. Or if he received order from a higher authority.
Harakahdaily: And who is higher than Musa Safri?
Lawyer A: We leave this to your imagination. This person is the reason why the AG had no interest to know the truth.
Lawyer B: And Altantuya could not have been made pregnant by a person who was impotent.
Harakahdaily: Who's that?
Lawyer B: That too, we leave it to your guesswork.
Lawyer A: So you see, that’s the purpose of C4 explosives, so that there would be no remains of the unborn baby in the womb.
Readers may form their own conclusion from the conversation above.
Altantuya was brutally murdered in Bukit Raja in Klang in 2006 where she was shot and her body blown-up with explosives.
Azilah and Sirul were later found guilty of committing the crime, but another key accused, prime minister Najib Razak’s political aide Abdul Razak Baginda, was let free.
In yesterday's decision, the appellate court cited failure of the prosecution to call Musa, a former aide-de-camp of Najib, as one of reasons why Sirul and Azilah were freed.
The panel judges - Mohamed Apandi Ali, Linton Albert and Tengku Maimun Tuan Mat - said the High Court had erred in their ruling on the murder case which has dominated Malaysian politics for close to seven years.
Immediately after news of the decision was carried by online portals, netizens exploded in cyberspace.
And as the debris find space to settle, well known human rights lawyer Syahredzan Johan offered his view from a different angle.
He agreed that the burden of proof was on the prosecution.
“All the ingredients of the offence must be proven, failing which the accused must be acquitted. And this burden of proof is high - it is beyond reasonable doubt,” he said in a Facebook posting.
As such, it is not easy to convict someone of a criminal charge, said Syahredzan.
“As it should be. Better to free 100 guilty fellows, than convict 1 innocent sod...
"Understandably, people are shocked. But let us criticise the court if decision is wrong, not because we did not get the decision that we want to see,” he reminded.
In our attempt to enlighten the public (and ourselves) about the decision, Harakahdaily spoke to two criminal lawyers, each of whom gives his take on the acquittal of the duo the public has come to know as Altantuya’s killers.
Lawyer A: I have said all along. This is a staged case.
Lawyer B: Yeah. Not even the judge is interested to establish mens rea.
Harakahdaily: What’s mens rea?
Lawyer B: Working of the mind or the intention behind the murder.
Lawyer A: They are just interested in actus rea.
Harakahdaily: Translation?
Lawyer A: Actus rea is the act itself or the act of murdering someone.
Lawyer B: The main discontentment on the trial was on the failure of the Attorney General to call a material witness like Musa Safri. As such, they failed to establish the mens rea.
Lawyer A: Yes. How could two secret army personnel woke up one morning and decided to kill one beautiful Mongolian lady, who has no relationship whatsoever with them.
Lawyer B: Had Musa Safri been called, he could have made a statement under oath on whether he instructed them or not. Or if he received order from a higher authority.
Harakahdaily: And who is higher than Musa Safri?
Lawyer A: We leave this to your imagination. This person is the reason why the AG had no interest to know the truth.
Lawyer B: And Altantuya could not have been made pregnant by a person who was impotent.
Harakahdaily: Who's that?
Lawyer B: That too, we leave it to your guesswork.
Lawyer A: So you see, that’s the purpose of C4 explosives, so that there would be no remains of the unborn baby in the womb.
Readers may form their own conclusion from the conversation above.
Altantuya was brutally murdered in Bukit Raja in Klang in 2006 where she was shot and her body blown-up with explosives.
Azilah and Sirul were later found guilty of committing the crime, but another key accused, prime minister Najib Razak’s political aide Abdul Razak Baginda, was let free.
In yesterday's decision, the appellate court cited failure of the prosecution to call Musa, a former aide-de-camp of Najib, as one of reasons why Sirul and Azilah were freed.
The panel judges - Mohamed Apandi Ali, Linton Albert and Tengku Maimun Tuan Mat - said the High Court had erred in their ruling on the murder case which has dominated Malaysian politics for close to seven years.
Immediately after news of the decision was carried by online portals, netizens exploded in cyberspace.
And as the debris find space to settle, well known human rights lawyer Syahredzan Johan offered his view from a different angle.
He agreed that the burden of proof was on the prosecution.
“All the ingredients of the offence must be proven, failing which the accused must be acquitted. And this burden of proof is high - it is beyond reasonable doubt,” he said in a Facebook posting.
As such, it is not easy to convict someone of a criminal charge, said Syahredzan.
“As it should be. Better to free 100 guilty fellows, than convict 1 innocent sod...
"Understandably, people are shocked. But let us criticise the court if decision is wrong, not because we did not get the decision that we want to see,” he reminded.
No comments:
Post a Comment
Note: Only a member of this blog may post a comment.