Tuesday, July 8, 2008

A virtual breakdown of law and order

THERE is no doubt that the statutory declaration is a much talked-about legal document in recent weeks. Some have now even wryly dubbed it "sextutory" declaration.

What is a statutory declaration?

In simple terms, it is a statement made under oath outside the court before a Sessions Court judge, magistrate or a commissioner for oaths. If it is used for a purpose outside Malaysia, then it must be made before a notary public.

A statutory declaration is often used where documentary evidence is not available, to affirm personal matters relating to an individual such as his identity, marital status, nationality and solvency.

Under the Statutory Declarations Act 1960 ("Act 13"), a statutory declaration must begin with the words "I do hereby solemnly and sincerely declare..." and end with the words "I make this solemn declaration conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960".

In the absence of these words, it has been held by the courts that such a statement is not a statutory declaration.

It follows that a statutory declaration should not contain any hearsay evidence, since the declarant is making a statement under oath "conscientiously believing the same to be true".

Even if the statutory declaration contains hearsay evidence, the declarant should disclose the source of such information.

This brings me to the two conflicting statutory declarations made by private investigator P. Balasubramaniam in a matter of 24 hours. Whatever it is, the statements contained in one of the declarations are obviously untrue.

By resiling from what he has affirmed in the first declaration, Bala's public recantation by way of a second declaration is not only self-incriminating but also constitutes damning evidence that he has lied in the first declaration.

Under Section 3 of Act 13 and Section 199 of the Penal Code, a declarant who makes a false declaration is treated as if he has given false evidence.

Section 193 of the Penal Code provides that: "Whoever intentionally gives false evidence in any stage of a judicial proceeding, or fabricates false evidence for the purpose of being used in any stage of a judicial proceeding, shall be punished with imprisonment for a term which may extend to seven years, and shall also be liable to fine; and whoever intentionally gives or fabricates false evidence in any other case, shall be punished with imprisonment for a term which may extend to three years, and shall also be liable to fine."

However, Bala has affirmed in the second declaration that he was compelled to make the first declaration under duress, and he ended his second declaration slightly differently from what is required under Act 13, with an additional word, "voluntarily", that is: "I make this solemn declaration voluntarily and conscientiously believing the same to be true, and by virtue of the provisions of the Statutory Declarations Act 1960."

In other words, Bala is saying he was not coerced into making the second declaration, and that the first declaration can now be treated as arrant nonsense.

In any event, if Bala is charged with giving false evidence, duress can be a defence but he has to produce evidence to that effect to exculpate himself. It is, however, inappropriate to discuss here the effect of his ignominious statutory declarations on the evidence he earlier gave and his position as a witness.

However, what concerns me is not so much the two statutory declarations but rather how a separate trial is being conducted by the media and bloggers when the actual murder trial is ongoing.

Little regard is had to the rule of sub judice. There appears to be a virtual breakdown of law and order as statements are constantly being made outside court by various parties which, in other cases, would have constituted contempt and interference with the due process.

But so far no party, especially the prosecution, has seen the need yet to apply for any gag order to stop these pernicious activities.

It seems to me now that after the March 8 elections, our mainstream media are prepared to take sides over several issues. This is good in the name of press freedom.

But we cannot throw out of the window long-established practices, one of which is never to prejudge a case before the completion of police investigation.

Likewise, our media are expected to undertake self-censorship and would not publish explicit remarks that would malign the dead, and words like "Altantuya Shaariibuu was susceptible to a certain form of sex" would not have seen the day unless uttered in a court of law.

Similarly, in any complaint, we do not go after the complainant treating the victim as if he/she is the villain before the conclusion of investigations.

It is, therefore, sad to note the growing trend these days, that whenever a case involves an intersection of sex, crime and politics, the media are prepared to form a judgment and our people are also quick to draw conclusions.

It is hoped that, notwithstanding that some of us may have already made up our minds on the innocence or guilt of those who accused and those being accused, we will not, in our haste to do so, sacrifice the principle upon which our nation is founded: the rule of law.

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