MACC Chief aside, other parties may come under forensic accounting and due diligence.
The Securities Commission (SC) probably couldn’t look for the law which can be used to prove that MACC Chief Azam Baki was engaged in unlawful activities and/or was party to illegalities.
There’s also law on “secret profits”. “Secret profits” made by an employee, during the course of work, belong to the “Principal” viz. MACC, thereby accruing to the gov’t as “revenue”.
It’s the work of lawyers to look for the law and point it out. However, Opinion isn’t law.
It’s the work of the court to find the law and declare it.
In any case, this may not be the end of the Azam Baki shares controversy.
The #Tangkap Azam Baki people’s movement is gathering momentum. The public demand answers.
Forensic accountants can undertake due diligence on the allegedly disproportionately large number of shares reportedly held by Azam Baki.
The due diligence can help determine and establish whether any of Azam Baki’s shares were in Companies investigated by MACC. Besides the Companies, their key shareholders may have been investigated as well by MACC.
The fingers of suspicion are being pointed in this direction.
MACC Act
If the exercise on the Companies and key shareholders runs into a dead end, it still doesn’t bring closure. The huge share amounts held by Azam Baki, probably “secret profits”, come into play.
The shares issue may have started when the MACC Act was amended, not so long ago, to allow the body to act on bribery and corruption in the private sector as well. The amendment may have opened Pandora’s Box on bribery and corruption in the private sector.
If Azam Baki’s shares have to run the gauntlet of due diligence through forensic accounting, then the shares held by all MACC officers, past and present, must come under public scrutiny as well.
In fact, the net must not be confined to MACC but cast even wider.
We can take the cue on due diligence from the oft-cited suspended judge, now retired, who gave a controversial public take on fraud and corruption in contracts signed between the government and the private sector.
Apparently, although the contracts were signed, there was no evidence that any work was done, and the gov’t found itself paying out for alleged breach of contract. The suspended judge hinted, indeed implied strongly, that gov’t officers were in cahoots with the said Companies and the court on fraud and corruption on contracts.
Real Story
Likewise, the real story on the RM1.25b solar hybrid power system project in Sarawak may have not even begun.
In the light of what the suspended judge discovered on contracts which the government allegedly breached, the Company in the Sarawak project, and a linkman with the government, should have been investigated first.
In the rule of law, the basis of the Constitution, there’s greater emphasis on the spirit of the law, read with the letter of the law.
The letter of the law, by itself, isn’t law at all.
Law exists, and has always existed, based on common sense, universal values and the principles of natural justice.
The linkman, it was reported, was a member of Rosmah Mansor’s staff.
Instead, the Company and the linkman have turned state’s evidence against Rosmah, probably after plea bargaining. I stand corrected on plea bargaining.
Under our adversarial system of justice, there’s no plea bargaining.
There’s equality under the law. In law, there can be no discrimination. Article 8 in the Federal Constitution refers.
Discrimination is a violation of human rights under international law which finds application in national law.
Human rights are the basis of international law. International law derives from international customary practices.
Again, the Company and the linkman should have been cleared first by the authorities concerned on the solar hybrid power system project.
Clearly, going after Rosmah first, was akin to putting the cart before the horse, based on circumstantial evidence.
Circumstantial evidence is inadmissible in criminal cases. The threshold is high, the Test of the Burden of Proof being beyond reasonable doubt.
Material Evidence
Rosmah was charged with asking for RM187.5m — it’s based on hearsay and circumstantial evidence — for the solar hybrid power system project and allegedly receiving a paltry RM1.5m bribe. In that case, the RM1.5m should be traced, found and produced in court as material evidence.
Rosmah also faces 17 money laundering charges viz. 12 charges related to RM7, 097, 750 in deposits via 235 transactions into her bank account and 5 charges for failing to declare the same RM7, 097, 750 as income for tax.
The AG cannot have his cake and eat it too.
The Inland Revenue Board (IRB) can drag Rosmah to the Income Tax Court, a Tribunal, on the RM7, 097, 750. This was not done.
There’s specific relief on the sum under the Special Relief Act 1950. The parties in dispute on issues in conflict can go to the court of law after exhausting efforts in the Income Tax Court.
Legitimate
Under international law, money laundering has been defined as having assets far in excess of what could be legitimately accumulated over a lifetime.
Such assets can be frozen, seized and forfeited by the state under civil action.
Criminal suits would only be filed if the civil action is challenged. RM7,097,750 is too small an amount to qualify as money laundering under international law.
In Malaysia, the law may be antiquated, still reliant on the old definition of “washing dirty money”. The old definition may mean any amount of money, no matter how small, and borders on the “ridiculous”.
In the US, the Malaysians who came under the scrutiny of the Department of Justice (DoJ) for alleged money laundering, did not face civil action.
They settled out of court “without prejudice”.
Since no civil action was taken on alleged money laundering, there was nothing to challenge, and no criminal suits were instituted.
Humiliate Accused
Under international law, money laundering has been defined as having assets far in excess of what could be legitimately accumulated over a lifetime.
Such assets can be frozen, seized and forfeited by the state under civil action.
Criminal suits would only be filed if the civil action is challenged.
RM7, 097, 750 is too small an amount to qualify as money laundering under international law.
In Malaysia, the law may be antiquated, still reliant on the old definition of “washing dirty money”. The old definition may mean any amount of money, no matter how small, and borders on the “ridiculous”.
In the US, the Malaysians who came under the scrutiny of the Department of Justice (DoJ) for alleged money laundering, did not face civil action.
They settled out of court “without prejudice”.
Since no civil action was taken on alleged money laundering, there was nothing to challenge, and no criminal suits were instituted. – New Malaysia Herald
About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He’s not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.
Note: The points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.
Longtime Borneo watcher Joe Fernandez has been writing for many years on both sides of the Southeast Asia Sea. He should not be mistaken for a namesake formerly with the Daily Express in Kota Kinabalu. JF keeps a Blog under FernzTheGreat on the nature of human relationships.
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