Wednesday, January 14, 2015

Major Zaidi - who was really on trial?

1:00PM Jan 14, 2015
By Mohamed Hanipa Maidin

COMMENT The martial court had found Major Zaidi Ahmad guiltyof two charges out of the seven charges preferred against him on Monday. As his lawyer, I was not surprised at all with that verdict.

After all he had been duly "punished" when he was assigned to an unknown job (read cold storage) even before his trial in the martial court commenced.

It happened when he decided to break the military convention by lodging a police report against the Election Commission over the indelible ink fiasco. No doubt he was merely exercising his constitutional right as a registered voter when he made the police report.

If a trial is akin to a game, then Zaidi's trial would definitely fall under the category of an unfair one.

Winning and losing in a game is a normal phenomenon but not when the game fails to follow the agreed procedures governing it.

A fair game demands an independent and impartial umpire whose primary function is to ensure the rival parties adhere to the agreed rules and procedures.

The umpire will never compromise his impartiality or else the fairness of the game would be severely prejudiced.

Unfortunately this happened in Zaidi's  (right) trial. The fairness of the trial was severely compromised. It started when the presiding judge made disparaging remarks in Malaysiakini against the accused when the trial was still ongoing.

To add salt to the injury, the remarks were made a few days before a judgment implicating the accused took place. No doubt such remarks were not only uncalled for but also rendered the entire trial process as useless and meaningless.

The upshot of this was that a fair trial was no longer viable and possible.

As a  Zaidi's lawyer I did what would any lawyer standing in my shoes would do. I duly advised my client to lodge an official complaint against the presiding judge to the top military officer, demanding a full investigation. My client duly made such a complaint.

I also filed in court a written motion supported by my client's affidavit, praying for the dissolution of the court under Section 111 (1) of the Armed Forces Act 1972. The section provides a legal remedy to the accused to apply to the convening authority for a dissolution of the court whenever elements of injustice have crept into the trial.

The contents of my client's affidavit were never rebutted by the prosecutor or the presiding judge himself, thus they were deemed to have been duly admitted.

Armed with such cogent evidence one would expect the convening authority would readily agree to the dissolution of the court. Unfortunately it never happened.

The convening authority, on the contrary, dismissed  Zaidi's application without even hearing from him or his lawyers and without giving any reasons. So the trial went on.

No surrender

We however never surrendered. We filed in High Court an application for judicial review challenging the decision of the convening authority.

The High Court fixed the hearing on Feb 6, 2015. We duly informed the martial court the status of our application for judicial review and prayed for the latter's mercy to adjourn the trial pending the disposal of the judicial review. But no mercy was shown to us. The trial went on.

Since there was a formal complaint made by Zaidi for an investigation against the presiding judge, we asked the court to halt the trial pending its outcome. Once again the court did not entertain our request. The trial, we were told, had to go on.

We reasoned with the court. How were we supposed to proceed before it, when its impartiality was called into question?

This was so elementary as a fair trial presupposes the existence of an impartial and unbiased decision maker. When a judge had already prejudged the case how would a fair trial be possible?

When this rudimentary principle is not even adhered to, is it fair for any lawyer to allow his client to be succumbed to such a trial?

However the court insisted that the case ought to proceed and in turn asked our client to enter his defence. We complied. We therefore informed the court that the defence wished to call the presiding judge as our witness.

The court was taken aback and hurriedly demanded justification from us for such an unprecedented move.

We gave our reasons. Our justification was crystal clear. We told the court that, given the unusual scenario in this case, Zaidi's prime defence would be the unfair trial. It was a justified defence and duly recognised in a criminal trial.

This defence was rooted in our supreme law of the land i.e the Federal Constitution. It is enshrined in Article 5 (1) and 8 (1) of our constitution. Article 5 (1) provides a safety net to any individual in this country against any state's aggression and the safety includes inter alia, the recognition of the principle of a fair trial.

Article 8 (1) of the Federal Constitution , also known as a "due process clause", on the other hand, jealously and vehemently protects a citizen from any form of oppression and arbitrariness.

An unfair trial tears down the safety net and it also invites tyranny, thus infringing the said two fundamental articles of the constitution.

We told the court that since the presiding judge was the source of this unfairness it was in the interest of justice that the court needed to hear his evidence and this could only be done if he gave evidence in court.

We needed to examine him and confronted him with the evidence showing his damaging remarks against our client in Malaysiakiniwhen the trial was still ongoing.

Even if he was to be declared as a hostile witness, the law would give us some leeway to cross-examine him. The court, as expected, refused our application.

As all our requests were rejected, we were then asked to make a winding up submission. We did not call Zaidi to enter a defence as the reasons were too obvious.

No lawyer, standing in our shoes, would readily offer his client to the court whose integrity, impartiality and credibility have been called into question.

Final stage

Thus came a final stage. We told the court our presence in court to present our winding up speech was done in protest. We never recognised the tainted court. We would submit only one point.

As the trial was surrounded by unprecedented events which duly compromised its impartiality and the justice process, we demanded the court to declare a mistrial.

We told the court a mistrial was the only remedy available to the court and to the accused. In the interest of justice, the court ought to declare a mistrial so that no more unnecessary stunts would be creep into the trial.

To our utter surprise, the court did not even allow us to submit on that point despite the fact we were armed with a plethora of legal authorities to support our submission.

As far as we were concerned, the denial of a lawyer to make a submission was too much to be condoned. Making a submission is the hallmark of a criminal trial and hence not to be compromised at any time and in any circumstances.

Such a flagrant violation of a rudimentary principle brought us ultimately to the exit door of the trial.

History would ultimately determine who was really on trial in Zaidi's trial. An Israeli judge, Ehud Barak, aptly shared this wisdom; "when a judge sits to judge, he is in fact being judged".

MOHAMED HANIPA MAIDIN is Sepang MP and PAS central committee member.
~ Malaysiakini

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