Keadilan Youth chief Mohd Ezam Mohd Nor's purported statement that the presiding judge is not to blame for arriving at the guilty verdict is completely misguided. Ezam says that the law is harsh leaving no choice for the judge to decide any other way. I beg to differ.

True, the Official Secrets Act is indeed a harsh law but it is not cast in stone and, under the scrutiny of a conscientious judge committed to the principles of rule of law, justice and equity, may be so interpreted as to avoid a miscarriage of justice.

In Ezam's case the facts are so self-evident and the surrounding circumstances so overwhelmingly in his favour that you do not have to be former judge Eusoffe Abdul Kadir to conclude that any decision other than "not guilty" would occasion a grave miscarriage of justice.

Actus non facit reum nisi mens sit rea (an act does not make a man a criminal, unless his intention is criminal). And this doctrine applies in this case as there is nothing in the OSA to warrant the proposition that the offences therein are one of strict liability. In other words, the mere physical act of distributing a secret document would not render the act a guilty act per se unless it was accompanied by a criminal intention.

I do not dispute the actus reus here i.e. the distribution of a document marked "secret". But where was the criminal intention? Was it not the intention of Ezam, in distributing the document, to expose a case of blatant corruption involving a Cabinet minister no less?

Now, leaving aside moral and ethical considerations (which would compel an exposé undoubtedly), did the judge direct his mind to the issue whether the prosecution had proved beyond all reasonable doubt that Ezam had intended by his act to jeopardise the public order of the state or to intentionally cause the security of the country to be harmed in any way?

That will have to be the essence of the mens rea or criminal intention in this case. On the contrary, Ezam had shown in his evidence that his intention was to expose a public wrong and help realise a public right which is the people's right to a clean government. In so doing it would certainly hurt the comfortable position of the powers that be but corrupt politicians will have to reap what they sow.

The court could have also considered the Anti-Corruption Act 1997 which is an act intended to facilitate the prevention of corruption. Under Section 17 of this law, anyone who fails to report a corrupt act is liable to punishment of fine and imprisonment.

While it is true that this section is, strictly speaking, confined to bribery transactions, its purpose nevertheless is also to promote civic-consciousness to prevent and expose corrupt acts. Hence, it could be given a broad interpretation by the judge in his assessment of the issue of criminal intention.

If that is the case, wasn't Ezam then merely discharging his duty as a civic-conscious member of the public by making the police report? Surely something is very rotten in the House of Denmark [High Court] if our judges are unable to see the gross travesty of justice in this case and redress the wrong forthwith.

But alas, the Anwar Ibrahim saga has clearly shown that we must continue to "bear the whips and scorns of time, the oppressor's wrongthe law's delay, the insolence of office". If the Federal Court, the highest court of the land, headed by a man who upon taking office had vowed to reform the judiciary, could come up with a judgement as perverse as that of the latest ex-deputy premier Anwar Ibrahim's appeal, then what is there left for the underlings in the judicial hierarchy?

But that's another story altogether for which time and space do not permit elaboration.

Still, despair not. Ezam and his lawyers must appeal and go to town with it. If you can't win them, screw them!