“The judicial process which is a part of democratic process, therefore, is the struggle of the small man against the overpowering influence of the big, politically as well as financially.” : Justice D.M. Dharmadhikari, Supreme Court of India
From http://dinmerican.wordpress.com/
After writing my piece yesterday about the change of Judge in the Trial of Rosli Dahlan, I was determined to be present in court this morning to observe the proceedings. Before that, I decided to check out how this recent development would prejudice Rosli.
Reproduced below is what a fellow blogger and respected counsel, Art Harun said:
First of all, I do not why they are changing the Judge. This is definitely odd. The practice is, when a trial is at an advanced stage, and when countless hours have been spent on a trial, a Judge will not be changed. Even if he is transferred away, he would be asked to continue to preside over the case.
This is because he is the best person to judge the testimony, either to its admissibility or most importantly, to the weight to be given to a piece of testimony (we call it “probative value of the evidence”).
This is because the Judge would have seen and observed the witness and his body language, his temperament, he refusal or willingness to answer a question and if he answers, his demeanor while answering. All these will be in his head. He decides whether to believe a witness and if he believes, how much he would believe that witness based on all those things.Nobody else can do that but him. Because he was there.
If Rozillah (the new judge) takes over, she would have to start de novo (meaning, all over again). Otherwise she would be handicapped because she did not have the opportunity to observe Kevin Morais and the rest of the bumbling clowns who the prosecution is calling “witnesses”.
If she did not start de novo, she would have to rely on the notes taken by the former Judge. That is not good because she would not know the demeanour of the witnesses who were giving evidence. She would not see the sweat that ran down Kevin’s face, nor the awkward smile of whoever who was giving evidence.
So, to borrow the lawyer’s phrase, prima facie, Rosli will suffer a prejudice. The previous judge would know and remember all of Kevin’s lies described in my previous article – “The Liar Kevin Morais Buried In His Lies”, when he delivers his verdict. The new judge would not.
I can now understand why DPP Dzulqarnain and DPP Suffian disrupted the smooth running of the trial on the previous occasions by raising countless objections. I can now understand why DPP Dzulqanain sought to abort the other days reserved for the trial by giving the excuse that he needed to go on holiday to Australia with his whole family, whereas these were dates which he had previously agreed to. I can now understand that these were just tactical maneuvers and delaying tactics to get Judge Abu Bakar Katar to be transferred out.
MACC is scared of the Truth
The MACC must be truly fearful that their seven witnesses including the star witnesses, DPP Kevin Morais and Investigation Officer (IO) Saiful Ezral, have been stripped naked in court as being either inconsistent or outright lying. Either that memory is removed from Judge Abu Bakar Kattar’s mind or better still, transfer the Judge and get a new judge who has no such memory! That, in a nutshell was what all these maneuverings were about throughout the trial.
My conclusion was spot on. Rosli’s counsel, Dato’ K Kumaraendran, informed the new Judge, Puan Rozillah Salleh, that the Defence had written to the Chief Registrar seeking that Judge Abu Bakar Kattar be called back to conclude this case. That Judge Abu Bakar Kattar himself had informed counsels present on the last hearing date that there was no need for the Defence to write in as he, the Judge, would do so. Dato Kumaraendran also informed Judge Rozillah that the Prosecution had stated that the present witness IO Saiful Exral is the last witness. If Judge Abu Bakar Kattar can return for 6 other cases, why can’t he for this case?
The Customary Antics of DPP Dzulqarnain
To my amazement, DPP Dzulqarnain jumped up to insist that the new Judge, Puan Rozillah Salleh, should take over to conduct the case and conclude it. DPP Zulqarnain cited various provisions of the Criminal Procedure Code and case laws to support his contention. To Dato’ Kumaraendran’s amazement, DPP Zulqarnain then said that circumstances have changed and the Prosecution will now produce two more witnesses to justify why Puan Rozillah can still hear the case. It became so obvious that DPP Dzulqarnain was fighting tooth and nail not to allow Judge Abu Bakar Kattar to come back. It was so obvious that the MACC did not want Judge Abu Bakar Kattar!
Judge Rozillah then ruled that the next hearing date will be on September 6-8, 2010. If the Chief Registrar allows Judge Abu Bakar Katar to come back, then a new set of dates will be given. I saw wide grin on the faces of the two MACC DPPs, as if they had won a major battle.
I approached Rosli and saw the sombre look on his face, which he quickly changed to a forced smile when his lovely daughter and youngest son came to hug their father. The smile on Rosli’s face could not hide the concern and frustration in his eyes. The frustration surfaced when Rosli momentarily gave in to a lapse when he said “ This is one of the ironies of life. This case is about Ramli not me. Yet I was arrested and handcuffed until I bled, locked up overnight. I charged first even before Ramli. Ramli has been acquitted and I am still facing this!”
As we walked down the steps of the court house, Rosli muttered faintly “Déjà vu- 6-8th September is just two-three days before Hari Raya Aidilfitri. They really want to remind me what happened in 2007”.
From 2007 to 2010: Case still unsettled
I then realized that it was in Ramadan 2007 that Rosli was arrested, brutalized and produced in court to be publicly humiliated just one day before Hari Raya! Even at my age, I could take this heart tugging scene no more. I walked away from Rosli’s family initially feeling very sad with what I had just seen and heard. But then I told myself that I must do something about this.
Wake-Up Fellow Malaysians: Justice Delayed is Justice Denied
I must let other caring Malaysians know about this: about MACC’s trickeries; about shifting goal posts; about the injustices in our system; about the victimisation of an innocent man.
Malaysian Bar Council and Chief Justice: Recall Abu Bakar Kattar
I call on the Bar Council – defend your brother at law, call back that Judge. I call on the Chief Justice – this is your chance to show independence; justice delayed is justice denied.
Finally, if it is any comfort to Rosli, I would like to tell him what I am told about Judge Rozillah. Let me just reproduce what Art Harun said:
“I think I know Rozilah. She was one of the Deputy Registrars of the Court of Appeal before. She is a decent lady. Hardworking too. And she was very very helpful to everyone. She would go out of her way to help lawyers and she did that always with a smile.If we are talking about the same Rozillah, I must say that I quite admire her really.”
Perhaps it is a blessing in disguise. So don’t be sad, Rosli. Perhaps, there is a hikmah in all this. No trickery of the MACC can outdo God’s will- “Man proposes but God disposes”.
The human rights group also highlighted conditions in Malaysia, where immigration detainees pictured here await their fate at the Lenggeng Detention Centre. [Amnesty International]
