Thursday, November 16, 2023

What happened to Zahid's DNAA Parliamentary Committee? Separation of AG from Public Prosecutor important but the DNAA?

Malaysians are waiting for the Parliamentary Special Select Committee (PSSC) on Human Rights, Election and Institutional Reforms findings on the Zahid Hamidi's DNAA.
Remember that after the prosecution had already proven to the satisfaction of court all the elements of the 47 charges against Zahid Hamidi(now Deputy Prime Minister to Anwar and also UMNO President) - meaning that if Zahid Hamidi is not able to raise 'reasonable doubt' during the Defence's case, Zahid will be convicted of all the 47 charges and sentenced.
Sequerah further said the trial commenced on Nov 18, 2019 and to date, some 77 days of trial has elapsed. He also added the case was at the defence stage with Zahid’s 15th witness giving evidence.
Now, after Zahid had called his 15th witness, the Public Prosecutor/Attorney General decided to not continue with prosecutions - and asked the court to grant a Discharge Not Amounting An Acquittal(DNAA).
The RISK is that on Appeal, the appellate courts MAY reverse the DNAA and ACQUIT Zahid Hamidi - which means that after acquittal, he will 'not be liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made under section 166 or for which he might have been convicted under section 167.' 
MAJOR PROBLEM HERE - is that as a result of prosecution discontinuance of a criminal trial, the JUDGE does not make a decision based on the MERITS (i.e. evidence of guilt or innocence) in deciding to DNAA or to Acquit... hence a criminal can escape - and this will be a GROSS MISCARRIAGE OF JUSTICE inflicted upon the people of Malaysia and Malaysia itself.
This can be considered an interesting way to save 'friends' from being convicted and sentenced. Amongst the other possible ways is 
(a) simply do not charge at all [We remember how AG/PP Appandi Ali decided that Najib did not commit any crime with regard 1MDB - a view not followed by the subsequent AG/PP 
(b) Offer a compound - and the acceptance and payment of the compound means and end of investigation - no charging in court. [Remember the odd case of Deputy Finance Minister I Ahmad Maslan, where he paid the compound after he was charged as normally compound offers comes during investigation stage and before one is charged in court] 
Former deputy finance minister and Pontian Member of Parliament (MP) Datuk Seri Ahmad Maslan was on Wednesday acquitted of charges of money laundering and giving a false statement against him after he agreed to pay a compound of RM1.1 million.
(c) Another way is to continue with the trial - but 'prosecution' screws up, ending in an acquittal. There have some examples where material witnesses have not been called.
Remember Eric Chia and Kasitah Kadam - both were acquitted because prosecution failed to call material witnesses.

The Eric Chia case...
In his 30-page oral judgment, he went on to fault the prosecution in every aspect of the case, from the way the main charge and alternative charge were proffered right to the tendering of documents, and its failure to call crucial witnesses.
Akhtar said the most glaring setback was the prosecution’s failure to call two material witnesses, who would have been able to confirm whether payment was needed for the technical assistance agreements (TAA) signed between Perwaja Rolling Mill Development and NKK Corporation.
He said former Perwaja company secretary R.R. Durai Rajasingam, who was involved in all Perwaja’s contracts, would have known the actual contents of the TAA.
“Yet the prosecution never called him. The question is why? I see nothing to say that he would be a hostile witness or give evidence against them.”
The judge also questioned the prosecution’s reluctance to call the five Japanese witnesses, including NKK Corporation, Japan, director N. Otani, who was present at the signing of the TAA in Japan in 1993.
“I wonder whether it was the Japanese witnesses who were reluctant or the prosecution was the one reluctant to bring them here,” he said.
Akhtar also said the prosecution’s contention that the TAA was free fell flat in its face when tendering its documents at the trial as they clearly stated that the agreements would be effective upon receiving first payment.
Another document by NKK Corporation not only requested for the payment to be in a lump sum but also stated the amount.
He said the prosecution failed to lead any evidence to show fabrication of that document, which it contended.- Star, 27/6/2007, Eric Chia acquitted of CBT
Now, see the similarities in the Kasitah Gaddam's case...

Former land and cooperative development minister Tan Sri Kasitah Gaddam was acquitted and discharged by the High Court here of committing corrupt practice and cheating involving shares belonging to the Sabah Land Development Board (SLDB) in 1996.
Judge Justice Suraya Othman ruled that the prosecution had failed to establish a prima facie case on both charges for the court to call Kasitah to enter his defence.
“The essential ingredients of both the offences of corrupt practice and cheating were not made out on the facts before the court. In the circumstances, the accused stands acquitted and discharged of both the charges against him,” Suraya said in her 74-page judgment.
Kasitah, 62, was the first Cabinet member to be charged with such crimes....
,,,,Kasitah had claimed trial to using his position as SLDB chairman for his financial gain by taking part in the decision to approve a proposal to sell 16.8 million shares held by the board in Sapi Plantations Sdn Bhd to Briskmark Enterprise Sdn Bhd, where he was promised 3.36 million shares in Sapi Plantations on Oct 22, 1996.
On the second charge, Kasitah was alleged to have cheated the SLDB board members by omitting to disclose the offer by PPB Oil Palms Sdn Bhd to allocate five shares of the company for each share of Sapi Plantations in the proposal by company for listing on the KLSE.
He thereby dishonestly induced them to approve the sale of 16.8 million shares held by SLDB in Sapi Plantations to Briskmark Enterprise whereas they would not have approved the sale if they had known about the offer by PPB Oil Palms.
Justice Suraya said the failure of the prosecution in not calling six board members who were present in the meeting was detrimental to the case as it had created a big gap over the question of whether the board members were actually cheated by the accused.
She also said that evidence by lawyer cum board member Catherine Yong was very damaging as she did not indicate that Kasitah had misused his position or influence her or other board members during the meeting.
Besides that, the judge said there was no element of inducement on the part of Kasitah to the board members.- Star, 13/8/2009, Kasitah freed of corruption charges
There is also a problem with the understanding of what happens when the Prosecution decides to stop prosecuting. Should the courts just DISCHARGE? OR should the Courts ACQUIT? - This I will discuss in another post. Be Patient. 

So, what is the Parliamentary Special Select Committee (PSSC) on Human Rights, Election and Institutional Reforms findings on the Zahid Hamidi's DNAA issue? Or has it been dropped? WHY? 


Talks on separation of AG-Public Prosecutor powers heartening, says think tank
By R. SEKARAN Nation

Saturday, 04 Nov 2023 1:23 PM MYT

PETALING JAYA: Recent proceedings by the Parliamentary Special Select Committee (PSSC) on Human Rights, Election and Institutional Reforms regarding separation of the Attorney General (AG) and Public Prosecutor's (PP) roles have been viewed as encouraging.

The Institute for Democracy and Economic Affairs (Ideas) said it met PSSC chairman William Leong and proposed that the AG should be a member of the Cabinet while the PP should be appointed and head the Office of Public Prosecutions.

ALSO READ: Two task forces to study separation of AG-public prosecutor powers

"This was what we presented in our paper on 'Separating the Attorney-General and the Public Prosecutor: Enhancing Rule of Law in Malaysia' on Oct 26," Ideas CEO Dr Tricia Yeoh said in a statement on Saturday (Nov 4).

"This approach guarantees both prosecutorial independence and transparency," she added.

Yeoh said the strongest path to reform is through amending the Federal Constitution, the Criminal Procedure Code and the Interpretation Acts 1948 and 1967.

ALSO READ: Separation of AG-PP powers: ‘We must not regret it later’

"We hope to be involved in all future discussions related to this issue, including those with the Special Task Force for Comparative Studies and the Special Task Force that were announced by Minister in the Prime Minister's Department (Law and Institutional Reforms) Datuk Seri Azalina Othman Said.

"We look forward to the speedy implementation of separating the offices of the AG and PP as it is crucial in ensuring institutional independence and reducing political interference in the country's legal process," added Yeoh. - Star, 4/11/2023

PSSC to finalise proceedings on Zahid’s DNAA

PETALING JAYA: The Parliamentary Special Select Committee (PSSC) on human rights, elections and institutional reforms is set to finalise details over proceedings on the conditional acquittal granted to Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, said its chairman William Leong.

Leong said it is important for the select committee to decide on the list of questions and date of the proceedings.

“I hope to have it (the select committee meeting) in the first week of the Parliament meeting, so the entire committee can go through who we are going to call and what we want to be briefed on. We have to be fair; we cannot ask a person to come and ask anything under the sun,” he said when contacted.

Leong said it is important for the select committee to be prepared and concise in its task.

“Of course, we are in a hurry to get it done, but we have to be fair to the people we call, so they can come prepared,” said Leong, who is PKR’s Selayang MP.

The Dewan Rakyat will begin its third meeting of the year on Monday. Leong also stressed that a collective decision is imperative as the select committee is made up of MPs from both sides of the political divide.

“We are bipartisan. I cannot be the only one deciding which direction we want to go,” he said.

Last month, Leong said the select committee would invite sitting and immediate past attorney generals to explain the DNAA granted to Ahmad Zahid.

According to Leong, the invitation to appear before proceedings is to help the select committee better understand some concerns, such as conflicts of interest.

He also said groups such as Bersih and the Institute for Democracy and Economic Affairs will be invited to attend the proceedings. - Star, 6/10/2023

No comments: