Pornthip- A Porn of Truth in the Wheels of Justice

INTRODUCTION

THE TRUTH OF FREEDOM

”When people learn the difference between the power of love and the love of power, there will be peace”. James Marshall Hendrix

There is a nascent, stygian culture in its ascendency amongst Malaysia’s coalition of opposition media (read bloggers) and the political parties they support.

The opposition appears to celebrate and promote mediocrity as their creed. Paramount to the ideology of these opposition groups is the promotion of excesses of the absurd and the unconventional, whilst they elide the truth outrageously in support of their cant  at any price.

By any means they promote themselves, even if that includes promoting and disseminating pernicious statements imported as fact. These statements derived from half truths and gossip, they support with apocryphal documents and anecdotal evidence to support their far fetched allegations of criminality and corruption directed particularly at those who by virtue of their office or position, are often vulnerable to such attacks and unable to defend themselves. They spare neither the living nor the dead.

Embarrassingly, the opposition and their media (in this context) tend to justify such conduct in the name of ‘freedom of expression’ or opposition to a corrupt and unrepresentative government.  And so long as such outrage makes headlines and sells some newspapers and enlivens blogosphere, the mantra of ‘publish and be damned’ it appears, justifies the practice. It is as if the rhetoric of democracy and free speech matters more than the practice to many in Malaysia.

The trend is a particularly shameful indictment on a society that aspires to first world status at the technological, industrial and economic levels. A society whose citizens, led by academics, intellectuals and lawyers in particular appear to be infected by an epidemic of self inflicted ignorance for political convenience.

Often unable to distinguish between an ‘advertorial’ in one form or the other, in a ‘cash for comment’ media market, where ‘credibility’ and ‘truth’ are more often than not a  casualty and tradeable commodity and not the criteria it ought to be, they embrace anything they hear or read as truth for convenience to prop up their hollow narratives.

Add to this mix, the convenient and simplistic choruses of ‘freedom’ ‘democracy’ ‘good guys’ and ‘bad guys’ and you get the ‘manufacturing of consent’ (Professor Naom Chomsky). Apply these to a local experiment and you get the Teoh Beng Hock inquiry and the attendant mysteries surrounding the death of Mongolian arms trafficker aspirant and prostitute Altantuya Sharibu.

TEOH BENG HOCK-THE INQUIRY

Even before the inquiry into Teoh Beng Hock’s death had the opportunity to run its proper course before the courts, lawyers acting for the family of the deceased Teoh Beng Hock (Teoh or TBH) deliberately spawned a generation of capital lies and rumour. Spinning an impressive array of tall tales, gossip and speculation to anyone who would listen, they set about poisoning the spirit of the inquiry.

On another front these same groups are actively encouraging the process of distortions of facts around the investigation, feeding the frenzied curiosity of a gullible and inquisitive public with lies. All this in the name of ‘ justice‘ and legal privilege.

The highly inappropriate use of the word murder for instance at the inquiry and outside, to describe the cause of Teoh’s death, in breach of rules of evidence, procedure or simply good advocacy is an example of the point. Such language appears to have been the staple in the vocabulary of Teoh’s lawyers. Such language, highly inflammatory and prejudicial to a fair and just outcome into the causes of Teoh’s death had been allowed to filter through submissions and presentation of evidence at the inquiry, uncontroverted and unchallenged. In fact the use of the word murder in this case is misleading.

This breach has been allowed to go unchecked thus far either through the collective ignorance of all parties at the inquiry failing to realise its potential impact on the outcome of the inquiry; or through the virtuous patience of Job in biblical proportions on the part of the bench and the inquiry.

The word ‘murder‘ has been used inappropriately at the inquiry on numerous occasions, going unchallenged on each occasion, subverting the integrity and purpose of the inquiry in the process.

The inference to be drawn from the unchallenged use of the word murder in context is this:  A conclusion as to how Teoh died had already been acknowledged, decided and accepted by all parties to the inquiry even before the inquiry has been allowed to run its lawful course. (the writer’s emphasis in italics).

The questions that by logic and by implication of the free and uncontroverted use of the word ‘murder’ at the inquiry to be asked is this;

a) What was the object of the inquiry into Teoh’s death? ;and

b) what was the inquiry investigating?

If it is accepted Teoh was murdered, as counsel for his family and the expert witness Pornthip had so freely claimed throughout the inquiry with impunity.

c) why was the inquiry not recommending to the Director of Public Prosecutions a criminal investigation and prosecution for murder?

Lawyers acting for Teoh’s family clearly see it as their duty to interfere with the conduct of the inquiry at every given opportunity and to sully the reputation of government and its agencies in the process.

The truth into Teoh’s death appears not to be a priority or even a remote consideration in the collective agendas of the inquiry and Teoh’s lawyers.

Teoh remains a casualty of the truth even if the position as advanced here is denied by lawyers acting for his family at the inquiry.

Perhaps he is now victim a second time around. A victim of the truth because of the conduct of lawyers acting on his family’s and the inquiry itself.

Teoh Beng Hock-the Inquiry and the ‘Funniest Video’ (a spin-off of the inquiry) currently doing the rounds over the inter net is a case in point demonstrating the general level of ignorance that dominates and overwhelms the inquiry and the public in Malaysia. Its Genesis is to be found in that loose coalition of opposition anti Malay, anti government groups in Malaysia. Its nucleus in the ‘house boys’ of PKR and RPK welded together by the incompetence of the legal profession and the paucity of knowledge and inexperience in the judiciary. Eagerly exploited by a mish mash of half baked academics and conspiracy theorists airing their unmitigated ignorance of the law or respect for truth in the process is the theme of a side show taking centre stage in all of this.

PUBLIC INQUIRIES

A simplistic explanation of public inquiries, their histories, their character and purposes is provided in the following extract from a publication by Dr. Scott Prasser of Sunshine Coast University in Queensland Australia.

“In the United Kingdom, public inquiries, most notably in the form of royal commissions, have been used extensively, initially as a means by which the Crown could obtain advice or inquire into specific issues and wrong doings outside of other institutions such as parliament. The origin of royal commissions may be traced back to eleventh century England with William the Conqueror’s appointment of an ‘inquiry’ to prepare the Domesday Book of land ownership. Over 400 such commissions of inquiry since then have been established by government to obtain expert advice on issues such as health, education, labour reform, public administration, welfare and factory legislation”.

Criticisms of especially royal commissions arise from the dangers for abuse by sharp practitioners and politically minded judges appointed to preside over them. In the case of judges, either expressly or potentially their participation often can and does threaten the concept of judicial independence. (Lingham tapes and Sacking of Judges 1988).

The use of evidence otherwise inadmissible in a properly constituted civil or criminal court of law is perhaps the most dangerous aspect of royal commissions. The horseflesh trading with respect to the width of the terms of reference is another. Although the latter is a lesser danger to just outcomes in such inquiries.

The Teoh Beng Hock inquiry for all intents and purposes is an inquiry into the unexplained (as yet) death of an individual in custody of the Malaysian Anti Corruption Commission better known by its acronym MACC.

CLASS STRUGGLES IN LIFE AS IN DEATH

Using it as a tool to attack and vilify government and its agencies outside of legally prescribed rules the opposition in blogsphere and at the inquiry lend little credibility to their cause. To add insult to injury the contrived  outpouring of grief and demand for justice for Teoh  is only matched by the deafening silence of his most vocal of supporters and strident critics of government over the death of Kugan, as if justice has a specific criteria of colour and race and only the Teoh Beng Hocks of this world satisfy that criteria.

At least and in its defence if it is entitled to one, the government in responding to Kugan’s death, even if only cosmetically, suspended from active duty the officers who interrogated Kugan pending a more detailed investigation into his death. Much more than what Lim Kit Siang, PKR, Karpal Singh, RPK , Elizabeth Wong and the good Catholic Theresa Kok have collective been able to contribute to justice for Kugan.

Kugan unlike Teoh came from the lowest of the social strata of society and was Indian. His kind is no brother to the largely monied and influential class that Teoh Beng Hock belonged to that preach the qualities of unity and equality but who are too often found wanting when it comes to practical fulfillment of those seemingly noble aspirations.

Teoh Beng Hock has been hijacked in death as he may well have been in life, a tool of political intrigue and a prop for more sinister political gain. The truth however is as much a casualty and a victim of circumstances as Teoh Beng Hock was in life and continues to be in death.

The inquiry into Teoh Beng Hock’s death would in other jurisdictions fall into the category of a coronial inquiry. A coronial inquiry is one whereby the coroner assisted by legal representatives working together with experts would investigate the circumstances of the subject’s death and make appropriate findings upon the evidence presented to it in a transparent, detached and forensic way.

In instances where there is strong admissible evidence of wrong doing on the part of any party involved in the death of the subject, the coroner’s findings may include a recommendation to the public prosecutor that would support a criminal or civil prosecution of culpable parties.

DR. PORNTHIP –THE INQUIRY’S SIDESHOW BOB.

THE EXPERT WITNESS

In the absence of clear and unequivocal rules with respect to the role and appointment of an expert witness at inquests as the  Teoh Beng Hock inquest (fundamentally a coronial inquiry), reliance on persuasive existing authorities from other commonwealth jurisdictions,  notably Britain, Australia and to a greater extent India ,is necessary as a guide.

There are of course other jurisdictions and other authorities such as authoritative legal texts, although their contribution to seminal legal decision in this respect is less persuasive.

WHO AND WHAT IS AN EXPERT?

It is universally acknowledged in legal circles that an expert in such matters must be impartial and must assist the court and not the party who pays the expert for their services at the inquiry. Often that expert is a single expert witness agreed to by all parties who will ensure that without compromising the interest of justice they will give evidence or an opinion on an issue in the proceedings. More important is the definition of expert as being:

“a person who would if called as a witness in a proceeding or trial be Qualified to give Opinion Evidence in relation to an issue arising in the proceedings”.

There are issues with the ‘impartiality’ of the “expert” at the TBH inquiry one Dr. Pornthip Rojanasunand. As has already been demonstrated previously by her public statements in and out of court on the subject of her specialization and expertise, Dr. Pornthip’s entire demenour appears to support the observation that her  appetibility is the prime purpose of her presence at the inquiry.

None of the antics and histrionics of Dr. Pornthip have to date engendered any confidence in her abilities as an expert of anything by independent observers of the inquiry into Teoh’s death.

And further, given her difficulty with language (English) and her inability to articulate her opinions at even an elementary level of English has turned this otherwise serious affair into a public spectacle and a farce, bringing the court and its purpose into disrepute.

Her most vociferous and ardent supporter and I suspect the architect of the farce is Teoh’s lawyer Gobind Singh Deo. He and his team are no small contributor to the farce by their conduct to the farcical and convivial atmosphere of the inquiry. The Attorney General’s management of the inquiry comes a close second in this regard by its insouciant and desultory handling of the inquiry.

MISLEADING THE INQUIRY

If statements attributed to Dr. Pornthip’s testimony are to be believed, this expert has committed the grievous offence of misleading the inquiry. It is a punishable offence and a demonstration of her contempt for the inquiry.

The fact she may have misled the court in advancing and reinforcing the fanciful theories of Teoh Beng Hock’s emotionally charged legal team is unforgivable. Her failures and her misconduct in this respect now squarely places the onus of defending her misconduct in the hands of counsel, Karpal Singh and his junior Deo Singh.

Further it is observed from the video that Pornthip, when asked to explain the discrepancy in her statistical estimates of the probability of death resulting from Teoh’s ‘murder’ (as she and her team prefer to refer to Teoh’s death), she is reported to have replied with words to the effect that by giving it the higher probability of 80% in her initial testimony, she wished to force a second autopsy on Teoh’s remains.

In normal circumstances a vigilant, competent and law abiding counsel would have immediately on his feet asked the judge for the opportunity to allow the witness to either withdraw her statement in this regard or to correct it without haste.

Counsel Karpal Singh could have also promptly requested that the hearing be adjourned till the witness could be advised of the gravity of her testimony and the consequences to her and to the inquiry from her response remaining on the record. Alternatively she should have been advised by counsel Karpal Singh to withdraw the offending statements. counsel for neither party made such a request . And neither did an arrogant self centered Dr. Pornthip flinch at the gravity of her statement.

Sadly neither did the Judge cotton on to the serious and criminal nature of that response nor the government lawyer on the day appear to have any inkling of how tainted the evidence of the expert had become with that one toxic response.It was the point at which her credibility as a reliable, independent and honest expert witness was irrepairably damaged.

FURTHER EVIDENCE OF FLAWS IN THE FARCE

Dr. Pornthip’s further testimony which appears to have elicited applause form the gallery in subsequent hearings were orchestrated, inappropriate and irrelevant. She in short was being unhelpful to the inquiry by playing to an audience of the converted in furtherance of her own image as that ‘Rebel without a cause’.

When questioned about her credentials and her experience as an expert in her field, her response appears to have diverted to recognition of her academic qualifications, to which she appears in her limited English and solecism to respond that, the government lawyer should ‘respect her degree because it is from an Asian (or ASEAN) university’.

Whatever relevance that response may have had to the question put to her and how appropriate such an answer could to the inquiry be is reflective of the ignorance of the importance of the role an expert has to such an inquiry.

CONCLUSION

Dr. Pornthip and her counsel ought to be brought to task apart from Dr. Pornthip being dismissed from giving further testimony as an expert for her conduct, her lack of understanding and respect for the process or her ability to independently assist the inquiry. Apart from these serious flaws in her capabilities there is the issue of her patently dishonourable conduct in misleading the inquiry.

What ought to become of her vocal supporter and her counsel is something that the bench and the office of Attorney General must deal with a deal with by applying the full force of the law to sanction their conduct thus far.

To the Karpal Singh’s and Anwar Ibrahim’s of this world who appear to be driven by their quest for perfection and power ‘faithful in friendship but fickle in love’ (for their country) the following may be appropriate:

“Perfection is a relative concept, not an absolute one”.

Gopal Raj Kumar