Can or should PM Najib be investigated and/or charged for corruption? What does the law say? - Just an opinion

The issue here is that large amounts of monies have allegedly been found in bank accounts in the the name of a sitting Prime Minister - a public servant, an officer of a public body.

Is Najib being investigated for committing an offence? - possibly some offence of corruption - possibly under the Penal Code or maybe the Malaysian Anti-Corruption Commission Act 2009 (MACC Act)...

OR ARE WE BEING DISTRACTED .... 

(a) The issue of whether our money in 1MDB or its subsidiaries, or maybe even other GLCs have be mis-used or 'taken out wrongly' and has ended up in the pockets of Najib or UMNO or BN or maybe even other person/s?

(b) The issue of sources of 'Political Funding' - well, for sure money entrusted to the government to handle, be it in GLCs or otherwise certainly should not end up being chanelled to politicians or political parties - this is clear. About other sources of funds  - well that is something else...maybe even something that we all have to look at - and lay down what is OK and what is not...

We will consider the MACC Act...

First, what is 'gratification' ? Well, look at section 2 (see below) - it includes money, donations...any payment

"gratification" means- (a) money, donation, gift, loan, fee, reward,...

Now, let us look at some offences - let us look at section 16

16  Offence of accepting gratification

Any person who by himself, or by or in conjunction with any other person-

(a) corruptly solicits or receives or agrees to receive for himself or for any other person; or
(b) corruptly gives, promises or offers to any person whether for the benefit of that person or of another person,

any gratification as an inducement to or a reward for, or otherwise on account of-

(A) any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place; or
(B) any officer of a public body doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body is concerned,

commits an offence.

Do consider also section  23  Offence of using office or position for gratification (see below)

Now, let us consider Prime Minister Najib - is he an officer of a public body? Yes, he is ...

"officer of a public body" means any person who is a member, an officer, an employee or a servant of a public body, and includes a member of the administration, a member of Parliament, a member of a State Legislative Assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and, where the public body is a corporation sole, includes the person who is incorporated as such;

"public body" includes-

(a) the Government of Malaysia;
(b) the Government of a State;
(c) any local authority and any other statutory authority;
(d) any department, service or undertaking of the Government of Malaysia, the Government of a State, or a local authority;...

Now, the important thing to note is that all that needs to be proved now would be that gratification was received - money, donation... Thereafter the presumption arises.... the gratification shall be presumed to have been corruptly received 

50  Presumption in certain offences

(1) Where in any proceedings against any person for an offence under section 16, 17, 18, 20, 21, 22 or 23 it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved.

What this means is that once there is proof that the money was received - the person could already be charged in court... and large sums of money(here was it RM2.6 billion or was it more???)  in a bank account(or accounts) in your name would be proof enough....don't you think?

There is no need to wait to find out from where or who the money originated?

There is no need to wait to find out for what purpose the money was given and received...

What was the purpose of the money? Was it to ensure Malaysia will not increase 'Minimum Wages' - or maybe amend laws that will ensure regular employment until retirement for all workers? Maybe, it was to not repeal the provisions that allow for 'contractor for labour? Maybe... Yes, corruption is not only about things that you do...but also matters that you delay or even do not do...

So, under the MACC Act and/or other laws, the prosecution should act now, Najib could and maybe should be charged...

And, in court he will have every opportunity to prove that there was no corruption...and there we will have an independent judge making the decision...

Not important that Najib said that it was not for personal gain 

Not important thereafter there were suggestions that this was really a account where he kept the money in trust for UMNO or that it was really 'political funding' for Najib or was it for UMNO - but strangely there are 'doubts' whether this is true. Strange also for a society to do this - why was it not in the name of the society, or in the joint-accounts of maybe 3 persons. Was there any indication of this in the minutes before the 'expose'... Odd, is it not that persons can hold money for a society, in their name - and maybe also 'keep secret' the amounts received or how was it spent... Maybe ROS should clarify if that is permitted in Malaysian laws...

Not important also is the finding of MACC that this money did not come from 1MDB - where it comes from is still a mystery. Good if full statement from MACC was made available > It may not be on the record from 1MDB...but surely we need to dig deeper..

Important is the question whether public funds have been 'stolen' or 'wrongly transmitted' to persons... Public funds is not just money collected through income taxes, GST, etc > but also all other monies generated by government activities, government owned companies, etc.

 MALAYSIAN ANTI-CORRUPTION COMMISSION ACT 2009
 3  Interpretation
"gratification" means-

(a) money, donation, gift, loan, fee, reward, valuable security, property or interest in property being property of any description whether movable or immovable, financial benefit, or any other similar advantage;
(b) any office, dignity, employment, contract of employment or services, and agreement to give employment or render services in any capacity;
(c) any payment, release, discharge or liquidation of any loan, obligation or other liability, whether in whole or in part;
(d) any valuable consideration of any kind, any discount, commission, rebate, bonus, deduction or percentage;
(e) any forbearance to demand any money or money's worth or valuable thing;
(f) any other service or favour of any description, including protection from any penalty or disability incurred or apprehended or from any action or proceedings of a disciplinary, civil or criminal nature, whether or not already instituted, and including the exercise or the forbearance from the exercise of any right or any official power or duty; and
(g) any offer, undertaking or promise, whether conditional or unconditional, of any gratification within the meaning of any of the preceding paragraphs (a) to (f);

"public body" includes-

(a) the Government of Malaysia;
(b) the Government of a State;
(c) any local authority and any other statutory authority;
(d) any department, service or undertaking of the Government of Malaysia, the Government of a State, or a local authority;...

"officer of a public body" means any person who is a member, an officer, an employee or a servant of a public body, and includes a member of the administration, a member of Parliament, a member of a State Legislative Assembly, a judge of the High Court, Court of Appeal or Federal Court, and any person receiving any remuneration from public funds, and, where the public body is a corporation sole, includes the person who is incorporated as such;


 16  Offence of accepting gratification

Any person who by himself, or by or in conjunction with any other person-

(a) corruptly solicits or receives or agrees to receive for himself or for any other person; or
(b) corruptly gives, promises or offers to any person whether for the benefit of that person or of another person,

any gratification as an inducement to or a reward for, or otherwise on account of-

(A) any person doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place; or
(B) any officer of a public body doing or forbearing to do anything in respect of any matter or transaction, actual or proposed or likely to take place, in which the public body is concerned,

commits an offence.

 23  Offence of using office or position for gratification

(1) Any officer of a public body who uses his office or position for any gratification, whether for himself, his relative or associate, commits an offence.
(2) For the purposes of subsection (1), an officer of a public body shall be presumed, until the contrary is proved, to use his office or position for any gratification, whether for himself, his relative or associate, when he makes any decision, or takes any action, in relation to any matter in which such officer, or any relative or associate of his, has an interest, whether directly or indirectly.
(3) For the avoidance of doubt, it is declared that, for the purposes of subsection (1), any member of the administration of a state shall be deemed to use his office or position for gratification when he acts contrary to subsection 2(8) of the Eighth Schedule to the Federal Constitution or the equivalent provision in the constitution or Laws of the Constitution of that State.
(4) This section shall not apply to an officer who holds office in a public body as a representative of another public body which has the control or partial control over the first-mentioned public body in respect of any matter or thing done in his capacity as such representative for the interest or advantage of that other public body.

50  Presumption in certain offences

(1) Where in any proceedings against any person for an offence under section 16, 17, 18, 20, 21, 22 or 23 it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered, by or to the accused, the gratification shall be presumed to have been corruptly received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained, solicited, given or agreed to be given, promised, or offered as an inducement or a reward for or on account of the matters set out in the particulars of the offence, unless the contrary is proved.