The Elephant in the Dewan

A very strange thing is happening in Malaysia – a lawyer is practically setting out the grounds for his client to be charged whereas the AG and (de facto) Law Minister are bending over backwards and at pains to avoid charging the lawyer’s client.

It all relates of course to the fly in the ointment for the Malaysian PM (or the Gorilla or Elephant in the room), which refuses to go away. The circumstances of the murder of Altantuya Shaariibuu all point to the involvement of the PM and this obviously leads the Malaysian public to easily say but of course the AG and the Minister would not prosecute as that would obviously reopen the PM’s proverbial cupboard full of skeletons.


The below letter was published by Malaysiakini (21/12/2010, I think) – as always, anything to do with the PM’s apparent involvement with this despicable incident should be reproduced and republished as often as possible so that the it is given as wide a coverage as possible. I don’t think Americk Sidhu would disagree.


What can I say about Minister in the Prime Minister’s Department Nazri Aziz’s statement last week?

More wool pulled over our eyes and more hogwash poured all over our intelligence.

Lim Kit Siang quite rightly asked a very pertinent question in Parliament last week. He asked for a reason why the attorney-general (AG) Abdul Gani Patail decided to close the file on my clients’ two conflicting statutory declarations.

Nazri was chosen to respond.

This is what he had to say. I have translated his comments as best as I can: “ It was found that both the contradictory statutory declarations (SDs) was not an offence as they were not made for the purposes of court proceedings therefore the element under s 199 was not fulfilled and so S Balasubramaniam’s making two contradictory SDs was not an offence under the section. The contradictions in both SDs did not affect in any way the Altantuya (Shaariibuu) case”.

That is a shame because if Bala’s first SD was allowed to be presented to the court in the Altantuya case, it would probably have ‘affected’ the outcome quite significantly. It was only because of his second SD that the first was rather inelegantly ‘neutralized’.

Both these SDs could not have been true because they were in total conflict with each other.

Nazri, you picked this detail up when you admitted they were ‘contradictory’. You were on the right track.

I have been made to understand that my client, Bala, has already written to the AG confessing that his second SD was not true and that an invitation to charge him for that transgression was tendered.

As far as I am aware this offer has yet to be accepted.

Nevertheless, let’s see what Nazri’s or the AG’s excuse is. They are apparently relying on the provisions of Section 199 of the Penal Code to say that they can’t possibly charge Bala (as much as they would like to), because there has been no offence committed.

There has been no offence committed because Bala’s SDs were not ‘made for the purposes of court proceedings’.

Those were Nazri’s words, not mine.

I am sorry, but I am now forced to refer everyone to the details of the legal mumbo jumbo contained in Section 199. This I have to do for completeness so please bear with me. I have highlighted only the relevant bits so that you don’t get sidetracked by the irrelevant portions. It’s not easy to understand even for trained lawyers like Nazri, the AG, or even myself. But all will become clear if we persevere.

Section 199: False statement made in any declaration which is by law receivable as evidence.

“Whoever in any declaration made or subscribed by him, which any declaration any court or any public servant or person is bound by law to receive as evidence of any fact, makes any statement which is false and which he either knows or believes to be false or does not believe to be true, touching any point material to the object for which the declaration is made or used, shall be punished in the same manner as if he gave false evidence*(*false evidence here means perjury.).”

So Nazri, I think we are concerned with the part that reads ‘any court… bound by law to receive……’. This is what your response seems to imply. You are saying that because Bala did not produce any of his SDs for the purpose of court proceedings, he cannot be charged for an offence under Section 199 even if one of his SDs was false or untrue.

I don’t think you can possibly be right here, because:

Firstly, Bala actually did produce his first SD for the purposes of court proceedings. He has stated this very clearly in paragraph 54 which I reproduce below for ease of reference:

54. The purpose of this statutory declaration is to:

54.1 State my disappointment at the standard of investigations conducted by the authorities into the circumstances surrounding the murder of Altantuya Shaaribuu.

54.2 Bring to the notice of the relevant authorities the strong possibility that there are individuals other than the 3 accused who must have played a role in the murder of Altantuya Shaaribuu.

54.3 Persuade the relevant authorities to reopen their investigations into this case immediately so that any fresh evidence may be presented to the court prior to submissions at the end of the prosecutions case.

54.4 Emphasize the fact that having been a member of the Royal Malaysian Police Force for 17 years, I am absolutely certain no police officer would shoot someone in the head and blow up their body without receiving specific instructions from their superiors first.

54.5 Express my concern that should the defence not be called in the said murder trial, the accused, Azilah and Sirul will not have to swear on oath and testify as to the instructions they received and from whom they were given.

I don’t think the AG nor your goodself may have had the opportunity of referring to the provisions of the Statutory Declarations Act 1960, and in particular to Section 3, which reads as follows:

“Declarations made by virtue of the provisions of this Act shall be deemed to be such declarations as are referred to in s 199 and s 200 of the Penal Code.”

That makes things a lot clearer now, doesn’t it?

It doesn’t seem to matter whether the SD was ‘made for the purposes of court proceedings’ or not. Section 3 of the Statutory Declarations Act says, basically, that any SD made under this act is deemed to be one to which Section 199 refers, and so both of Bala’s SDs would clearly fall into this category. Therefore he can be charged for an offence under Section 199.

Just to make sure all the loop holes have been plugged, Bala did end his SD with these words:

55. And I make this solemn declaration conscientiously believing the same to be true by virtue of the provisions of the Statutory Declarations Act 1960.

I don’t think I can make this any clearer for you, Nazri, or the AG.

I am unable to understand (or maybe I do) why you are devoting so much time and energy in trying to avoid prosecuting my client when the offence to which all this relates has been admitted to by my client.

If your interpretation of Section 199 is correct, then I have another question for you.

Do you recall the statutory declaration that Raja Petra Kamaruddin made some time ago in relation to the information he had received concerning Rosmah Mansor’s presence at the scene of the Altantuya detonation? Yes, how could anyone forget this.

Anyhow, there was absolutely no hesitation shown in charging Raja Petra for criminal defamation for this SD even though it was not made ‘for the purposes of court proceedings.’

There just seems to be one sauce for the goose and a completely different one for the gander.

Please forward this message on to the persecution department of the Attorney General’s Chambers. Hopefully they may now perceive things in a different light.

The writer is lawyer for private investigator P Balasubramaniam.