GUILTY UNTIL PROVEN INNOCENT:REVERSING THE BURDEN OF PROOF GOES AGAINST THE COMMON LAW

THE RACHEL CORRIE LAWSUIT HAS EXPOSED A CULTURE OF IMPUNITY IN THE ISRAELI MILITARY, WHERE CLAIMS OF UNLAWFUL KILLINGS AND WAR CRIMES ARE IGNORED, OR SUPERFICIALLY INVESTIGATED [EPA]

resisted by Rachel and many others – and an opportunity to affirm that those responsible will have their day in court.

Gentlemen, you have transformed our country into a graveyardYou have planted bullets in our heads,and organised massacres.Gentlemen, nothing passes like thatwithout accountAll what you have doneto our people isregistered in notebooks.

Guilty Until Proven Innocent:Reversing the burden of proof goes against the common law  based adversarial system of justice and represents a radical departure

The Supreme-Court appointed Special Investigation Team has filed a report finding lack of evidence to charge Gujarat chief minister Narendra Modi for a role in the 2002 killings in the state. This has been widely interpreted as the country’s justice system having absolved Mr Modi of any culpability in the killings. This is absurd, for three reasons.

One, the SIT is not the court. The court has received the SIT report, all right. It still has to evaluate the report, along with the separate assessment, by the amicus curiae appointed by the Supreme Court, of the evidence compiled by the SIT and other material facts. The SIT is an investigation arm, not the judiciary.

Two, lack of evidence does not mean innocence. Take any of the unsolved crimes that dot the case histories of our police forces. Lack of evidence has led to failure to identify, leave alone apprehend, those who perpetrated these crimes. Just because no one has been pronounced guilty, does it mean that these crimes have no culprits?

Even when a plausible culprit is identified, it is possible that there is not sufficient evidence for successful prosecution. The Indian judicial system deems an accused innocent till he is proven guilty. This, of course, is entirely appropriate. However, it has the downside that the more perfect the execution of a crime, the criminal having taken care to destroy the evidence afterwards, the less the likelihood of his being punished.

In Mr Modi’s case, evidence that could have established his guilt, in the form of crucial call records of those fateful days, have wilfully been destroyed by the Gujarat administration. These self-same call records could well have established his innocence as well, had these been available and had these shown that he or his office did not receive repeated, desperate calls from Mr Jafri at the Gulberg society before the mob got to him.

Three, Mr Modi is in command, if anything. He does not waffle, he does not dither and he does not suffer insubordination or indiscipline in the state administration. How come the Gujarat state apparatus wandered into a bout of lethargy precisely when communal tension was at its height and mischief-makers were visibly in action, crying havoc and letting slip the dogs of war? Did Mr Modi temporarily lose control or was he in total control when the state machinery played comatose?

The Supreme Court found it necessary to appoint an amicus curiae to make an independent assessment of the evidence compiled by the SIT. Reportedly, it has reached conclusions different from those of the SIT. The courts would consider this report as well. It is in the public interest to make both the SIT report and the amicus curiae’s report available in the public domain.

The Attorney-General (left) must prosecute UMNO Youth for attempting to stoke racial and religious hatred online to prove he is impartial in enforcing a “presumed-guilty-until-proven-innocent” clause in the controversial Evidence Act — a law that is widely seen to shackle freedom of speech and dissent on the Internet — the DAP’s Lim Guan Eng said today.

A controversial anti-Christianity poster that was uploaded on a Facebook page that shares the same name as the political wing’s official site but which UMNO Youth says is “unauthorised” has spotlighted the weaknesses in the recently-passed section 114A of the Evidence Act — a clause that, among others, presumes that the named owner of a website is the publisher of the statement.

The poster, which was uploaded last Saturday and taken down the same day, appeared to suggest that votes for Federal Opposition Pakatan Rakyat (PR) will cause Islam to be replaced by Christianity as the country’s official religion.

“We call the A-G, since he defend (sic) 114A of the Evidence Act, to prosecute and charge UMNO Youth because of this post,” Lim told a news conference in George Town today.

“Because the burden of proof now goes to the accused, not to the prosecution because this is now turned backwards, this is now flipped backwards.It is not an indication of my support for the amendment but just to show, now this thing happened, isn’t this a gross injustice?” he said.  On the surface, it looked like a simple game of “Gotcha,” when New York Bank regulators blew the whistle on London’s Standard Chartered Bank for laundering money. The fact that the money was allegedly tied to Iran cast a major shadow on the allegations, given the Islamic Republic’s “bad guy” image in American policy circles.

Big money was said to be involved when a NY State regulator, Benjamin Lawsky, considered a publicity-seeking cowboy in banking circles, made the explosive charge that Standard Chartered bank abetted $250 billion of money-laundering transactions with Iran.

On the surface the case was open and shut and headline-making, even though other federal regulators didn’t immediately jump in with guns blazing.

Then, as Reuters reported, it all became even murkier when Britain’s Central Bank governor portrayed Lawsky as marching to his own tune, and out of step with federal regulators in Washington. “‘One regulator, but not the others, has gone public while the investigation is still going on,’ the Bank of England’s Mervyn King said at a news conference in London.”

Suddenly, the plot thickened, even as the media tide carried with it the assumption that the bank was guilty as sin. With the Regulator calling Standard Chartered a “Rogue Institution,” its shares began dropping in value. In one morning’s trading, on the basis of accusations in a press release and uncontested legal charges, the bank lost $16 billion after the unproven allegations that US. Sanctions on Iran were violated hit the press.

Bank officials initially contested the scale of the transgression indicating that only a small part of its business with Iran was involved, no more than $14 million. Federal regulators also implied that NY State was exaggerating the scale of any potential problem and that Lawsky’s language was unnecessarily “strident.”

But it is strident language that gets attention in a media that rarely bothers to investigate issues like these.

Not mentioned in the first stories was that Standard Chartered had met Lawsky’s office months earlier, but nothing was said then about any high crimes and misdemeanors.

That would change when the opportunity for a big media story materialized. Now, Lawsky was treating this case as major violation of national security, saying: “This is a case about Iran, money laundering, and national security,” Lawsky said. “We will continue to work closely with our law enforcement partners, both federal and state, in this effort. No bank, big or small, foreign or domestic, is above the law.”

Sounds dramatic, doesn’t it? But the British were furious because their investigation was not complete, but, whatever the truth, the perception of wrong-doing began killing the bank’s stock price. An auditing firm accused of fudging the numbers also adamantly denied it.

Bank critics in the U.S. lashed out at the British regulators who criticized a lack of protocol by the NY regulator. Wrote James Kwak on BaselineScenario.com, a leading economics blog:

Standard Chartered almost certainly conspired to evade U. S. sanctions?* Why are they mad at Benjamin Lawsky instead of at Standard Chartered? And when you think a violation of inter-regulator “protocol” is worse than a systematic plan to defraud the U. S. government and break sanctions against Iran, of all countries–it’s hard to imagine how you could be more captured, without knowing it.

Is this true? No Court has agreed with the accusation, and now none will because there has now been a settlement with no admission of guilt,

Standard Chartered initially said they would fight back. CEO Peter Sands issued this statement: “(We) fundamentally reject the overall picture and believe there are no grounds for them to take this action,” he told reporters. The threat to cancel the bank’s license to operate in New York would be “wholly disproportionate.”

It turns out that the pressure to punish the bank was partly due to fury at a colorful comment allegedly made by a Standard Chartered executive who challenged the arrogance of New York regulators in a conversation way back in 2006.

Bank Executive Richard Meddings allegedly said: “You f—ing Americans. Who are you to tell us, the rest of the world that we’re not going to deal with Iranians?”

Daring to criticize the self-righteousness of U.S. regulators and U.S. policy in a off the record comment (not even in a document) apparently marked the bank for retaliation by flag-waving and thin-skinned regulators.

What was Standard Chartered to do? Stand on principles and its “facts” and possibly loose its license in New York, or try to settle — without admitting wrongdoing. At the same time, more investigations are underway in connection with its alleged violations of U.S. sanctions laws.

What do you think happened? The bank did a quick calculation and decided to pay up rather than be shut down. They coughed up $340 million in a case that smacks of official extortion dressed up as high principles. The NY regulator has the power to close the bank if it believes the bank is untrustworthy, even if the bank is not guilty of any particular transgression. The Bank says the accusations deal with only 1 percent of some 60,000 Iranian wire transfers that New York regulator claims were involved.

Naked Capitalism (NC) reports that the regulator tried to shake Standard Chartered down for even more money:

The amount agreed was less than he was initially rumored to be seeking, which was in the $500 to to $700 million range. However, as we also indicated, in a “good” settlement, neither side gets what it wants. And given that the Federal authorities were roused by the New York action and are also reported to be negotiating settlements, they will likely have to secure decent dollar amounts so as not to be perceived to be completely incompetent, which would have cut into what SCB would pay to New York.

The NC website also explains, “SCB was handling Iran’s foreign oil sale related payments. Meanwhile in London, according to Fortune, “Money managers’ reacted to the U.S. allegations that Standard Chartered hid money tied to Iran with these words: Everyone does it.”

The U.S. business magazine added, “Talk that the bank could lose its ability to work and trade in the state is being dismissed as simply ‘loony.’”

Meanwhile, money managers in the City believe that the bank’s credit looks solid and its equity value is now cheap compared to its peers — even ones that have their plates full with their own scandals ranging from the Libor fixing to insider trading. Nevertheless, the company’s stock and bonds are expected to trade at a discount to its peers until the bank either resolves the issue or sets aside the cash to deal with it… It wasn’t too long ago that the big European banks actually flaunted their close relationship with entities connected to Iran.”

The Guardian seemed sympathetic to Standard Chartered too, reporting that the bank called its decision “pragmatic… in the best interest of shareholders and customers.”

The newspaper explained: “The loss of its banking licence would be more damaging than the fine, although Sands on Tuesday told the Business Standard paper in India — where the bank has a high street banking operation — that he did not believe the bank would be stripped of its ability to conduct business directly in the U.S.”

Ian Gordon, banks analyst at Investec, said: “It has taken the nuclear option off the table and suggests the total settlement will be manageable.”

Maybe Richard Meddings was right, even though the exercise of his “freedom” of speech has proven very costly. Ironic isn’t it, that sanctions are supposedly in place to stop Iran from going nuclear, just as fact challenged regulators use the “nuclear option” to get their way.

And so it goes, another day in the world of banking where hypocrisy reigns and trillions in global money laundering are ignored. Prosecution of wrongdoers are few and far between because officials get more pats on the back from their bosses for bringing in money rather than putting wrong doers in jail. A government that has dragged its feet in prosecuting crimes committed by the likes of Bank of America or Goldman Sachs has no problem going after small fry like Standard Charteedr to show that they are “doing something” with Iran as the pretext.

This tale of regulatory complicity feels like all the stories we read about the police shaking down the mafia so they can be cut in to the rackets.

Wall Street has become a place where real financial fraudsters go unpunished while inflated cases like this get the attention especially when a demonized “evil doer” like Iran is said to be involved. Real crimes like the way sanctions hurt ordinary Iranians go unreportedreadmore.http://lawmattersjournalmalaysia.blogspot.com/2012/08/guilty-until-proven-innocentreversing.html