Sunday, September 28, 2008

UMNO a sinking ship; A conclusive or rebuttable presumption in the court of public opinion?

Why, in law, assumption (a mere "andaian" some would say) carries weight? In law of evidence, fact assumed to be true under the law is called a presumption. In law, a presumption of a particular fact can be made without the aid of proof in some situations. The types of presumption includes a rebuttable discretionary presumption, a rebuttable mandatory presumption, and an irrebutable or conclusive presumption.

A rebuttable presumption is an assumption made by a court, one that is taken to be true unless someone comes forward to contest it and prove otherwise. A rebuttable presumption is often associated with prima facie evidence.

A more recent classic case of a presumption of facts used in the court of public opinion (with regard to the above topic) is with regard to the ongoing leadership transition debacle ensued from Supreme Council's decision which was obviously tailored to fit the grand design of the top two leaders instead of their ebbing party. That and the adjourned GA in itself is a prima facie ("in the face of it") evidence and a praesumptio iuris tantum ("rebuttable presumption" - at least to me) of a political entity leading a moribund way of life. Presumption of facts that UMNO is a sinking ship.

Let's proceed further with the law of evidence and court trials as hypothesis to the matter. Now, why do people make such a presumption in the case of UMNO? In the trial court, the invocation of a presumption is done normally for the purpose of shifting the burden of proof from one party to the opposing party.

The people is merely shifting the "burden of proof" to UMNO. And this is not done with malice. The intention is bona fide and genuine. There are people out there still want to see UMNO to get their act together and pull themselves out of their present quagmire. Most still want to see UMNO themselves to show to the "court of public opinion" that the presumption above is irrebutable and they (UMNO and its members) are capable of raising evidences to the contrary and to prove otherwise.

Many of us still want to believe that such presumption is in fact rebuttable and that there are those in UMNO that are capable of presenting to the people that there are evidences to the contrary.

To one commenter (anon-comment #4) to my previous post, my advise to you sir and all those in UMNO, never dismissed summarily all facts being presumed ("andaian") about UMNO by the joe public albeit the same is lacking in "sense of history"(whatever that means). Even in law, such assumption is often regarded as presumption which are used to relieve a party from having to actually prove the truth of the fact being presumed. In essence, what a presumption really does is place the obligation of presenting evidence to the contrary concerning a particular fact on that particular party. Now, if the actual court of law itself holds such high regards towards them (presumptions, assumptions and/or inferences) [Thousand apologies Mr. Sakmongkol, I can't help it - using "and/or" ;-)'s in the blood!], what more if the same are presented in the "court of public opinion"?

Of course there are those (such as Mr. Anon in Sakmongkol's post concerned) who see the above presumption as irrebutable (A conclusive presumption, is a presumption of law that cannot be rebutted by evidence and must be taken to be the case whatever the evidence to the contrary). As for me, I am not one of them, yet. And UMNO do count your lucky stars on the fact that many of us "outsiders" still share that same sentiment.

As such, to the learned members of UMNO, please do the necessary. Present to us, those who still view the above presumption ("UMNO is a sinking ship") as rebuttable, all available evidences to the contrary (*hint-for a start, the notion proposed herein could just be one of those). Make haste, time is not on your side!



Ismail N said...

Selamat Hari Raya bro. Maaf Zahir & Batin. Kirim salam buat Min/your family. Enjoy your holiday.

sakmongkol AK47 aka Mat Tomoi said...

brother lawyer kampung,
a fantastic analysis. lets see whether the UMNO joes can come out to rebut yr presumptions, other than screaming blue murder on us.
very good indeed. thank you for sharing with us the legal-politico analysis.
selamat hari raya to you and familly. maaf zahir dan batin.

Casutic Dude said...

For once, Mr. Loyar, you sound like a lawyer.

Selamat Hari Raya. Maafkan segala kesalahan; written, verbal or by conduct.

Lawyer Kampung said...

Caustic Dude, selamat hari raya to you too sir ;-)