Commentary and Analysis by Joe Fernandez

Umno President Ahmad Zahid Hamidi, 68, after having argued that he has “immunity” in 47 charges facing him, has been placed on the defensive. The charges involve RM124,260,000 belonging to Yayasan Akalbudi.

High Court judge Colin Lawrence Sequerah ruled on Mon 24 Jan that the prosecution had established a prima facie case against him for alleged criminal breach of trust (12 charges), corruption (8 charges) and money laundering (27 charges).

The court conducted “maximum evaluation” of the evidence presented by the prosecution. It found that the ingredients of all the charges against Zahid had been proven.

The court found no merit in Zahid’s “literal interpretation” of the MACC Act. He argued for immunity on the grounds that he had truthfully disclosed all information involving the Yayasan Akalbudi funds.

Under the MACC Act, there’s “no right to remain silent”, and the accused would have to answer questions even if they were “incriminating”.

Criminal Justice In Japan

In Malaysia, there are shades of the criminal justice system in Japan.

The system in Japan came under international scrutiny when Nissan Chief Carlos Ghosn fled the country on 30 Dec 2019 while awaiting trial on multiple criminal charges. Interpol issued a Red Notice to Lebanon on 2 Jan 2020 on Ghosn. The Notice seeks his arrest on the criminal charges awaiting him in Japan.

Ghosn said that he’s willing to face the criminal charges, but not in Japan.

Still, Zahid can choose to remain silent in court, but risks a higher chance of being convicted by not refuting any claims.

Zahidi told the court that he would be giving sworn testimony from the witness stand. The judge told Zahid’s lawyers to explain to their Client the choices he had in entering Defence.

Briefly, if Zahid isn’t willing to be cross examined, the Test of the Burden of Proof would shift to the “balance of probabilities” standard, a lower threshold, used in civil cases. This happened on 22 Aug 2011, during Sodomy II, when Anwar Ibrahim elected to give evidence from the dock vide a 32-page statement. The Test of the Burden of Proof in criminal cases remains “beyond reasonable doubt”, a standard based on a very high threshold.

Long Drawn Out Affair

Zahid’s days in court, based on the 47 charges, may be a long drawn out affair. He also faces another 40 corruption charges, involving RM55.56m, related to the foreign visa system operator.

If the RM124,260,000 involving Yayasan Akalbudi, was still with Zahid, the Attorney General’s Chambers (AGC) could have elected to file a civil action suit and frozen, seized and forfeited the money. In that case, the money would have to be restored to Yayasan Akalbudi.

The AGC, if challenged by Zahid on civil action, can file a criminal case based on the 47 charges.

It’s not clear why the AGC did not pursue the above two Options.

International law defines money laundering as having assets far in excess of what can be legitimately accumulated over a lifetime. Again, such assets can be frozen, seized and forfeited by civil action. The source of the funds isn’t mentioned.

Again, if the civil action is challenged, the prosecution can bring criminal charges against the alleged money launderer.

In the US, in cases purportedly related to the Malaysian Finance Ministry owned 1MDB, the Department of Justice (DoJ) did seek civil action against several named Malaysian suspects.

Out Of Court Settlement

Instead, the DoJ settled the matter out of court without prejudice — i.e. the Malaysians not admitting guilt — and repatriated the funds secured to the Malaysian government. The seizure did not involve 100 per cent of the funds purportedly originating from 1MDB.

1MDB wasn’t mentioned in these out of court settlements.

At some stage in Zahid’s case in court involving Yayasan Akalbudi funds, he can write a letter of representation to the AGC. If the Attorney General accepts the letter, he would produce it in court and recommend DNAA (discharge not amounting to acquittal).

Generally, the court will not accept DNAA if it feels it would be unfair to have the charges hanging over the accused. It would instead substitute with DNA (discharged and acquitted).

If Zahid wins freedom on the Yayasan Akalbudi case via letter of representation, the AG may withdraw and drop the other 40 charges that he faces.

Under Article 145(3) of the Federal Constitution, “the Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a Syariah Court, Native Court or a court martial”.

Public Perception

It’s public perception that the AG, under the Federal Constitution, may be about selective prosecution and selective persecution as well. This isn’t true if we consider that every law in the books cannot be enforced every time against every one.

The AG decides on cases based on public concerns and public interest.

It’s jurisprudence that laws exist not to be enforced but just in case they have to be enforced. The enforcement of law, ultimately, is a public education exercise, not so much for the parties in dispute on issues in conflict, but for the people.

There are reasons for the exceptions in Article 145(3). We don’t have to go into them here. – New Malaysia Herald

About the writerLongtime 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.

NoteThe points expressed in this article are that of the writer’s, and do not necessarily reflect the stand of the New Malaysia Herald.

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