Mixed opinions on appointing those with ongoing court cases

Ahmad Zahid’s appointment as DPM has invited criticism, but the public still has high hopes on Pakatan Harapan’s war against corruption


AS EXPECTED, the Cabinet line-up for the unity government under Prime Minister Datuk Seri Anwar Ibrahim drew much critique and attention.

The appointment of Datuk Seri Ahmad Zahid Hamidi as one of the Deputy Prime Ministers, was heavily berated as the UMNO President still have a court case pending in relation to his family-run charity foundation, Yayasan Akalbudi, where he is charged with 10 counts of criminal breach of trust (CBT), eight counts of corruption charges and 27 counts of money laundering charges.

Ahmad Zahid was, on Sept 30th 2022, acquitted of all charges of taking bribes and accepting gratification due to the lack of key elements of accusations levelled against him under the Penal Code and the Malaysian Anti Corruption Commission Act. The prosecution has since filed an appeal against the acquittal.

Derision came from all sides of the political spectrum as one of Pakatan Harapan’s key war cry en route to Putrajaya was to fight corruption, leaving a bad taste in the mouth as Anwar immediately

softened his stance when it was clear that his party would not be able to form a working government without aligning itself with BN, a highly tainted coalition of parties.

Sideswipes from the opposing coalition, Perikatan Nasional, could easily be dismissed as they themselves have hypocritically been toying with a semblance of cooperation with selected BN lawmakers, but criticism from eminent personalities such as Tun Dr Mahathir Mohamad, questioning the wisdom of such move, would be harder to suppress.

Moral arguments aside, from the perspective of the law of the land, should an elected representative with a court case hanging over his or her head be given any key government position?

The Malaysian Reserve (TMR) sought the views of lawyers and subject matter experts to shed light on whether or not someone who is currently in an ongoing court case should join the ranks of the federal Cabinet.

According to international arbitrator GK Ganesan, appointing individuals with an ongoing court case as Cabinet ministers is a question of ethical conduct.

“As such, I strongly suggest that those with ongoing cases to stay out of the Cabinet to avoid further backlash or criticism from the public towards the newly formed Unity Government,” Ganesan said when contacted recently.

However, he explained that there are two scenarios of which those with ongoing court cases can be appointed as Cabinet members.

“They can be appointed into Cabinet posts after their acquittal or when the attorney general (AG) exercises his powers of nulli prosequi (Latin — to be unwilling to pursue) as set out under Article 145 (3) of the Federal Constitution,” he said.

Article 145 (3) explained that “the AG shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence”.

Disagreeing with Ganesan’s opinion, Universiti Teknologi Malaysia senior lecturer Dr Mazlan Ali opined that appointing a Cabinet member who is undergoing trial is tolerable due to it not going against the formation of a Unity Government.

“This is a Unity Government rather than a Pakatan Harapan government. Hence, the PM has a commitment to the parties in the coalition who joined the formation of the Unity Government.

“In ensuring the stability, the PM must follow the recommendation of party leaders and not from the public’s opinion or preference.

“The PM must accept whomever is proposed by the party even if they are involved in an ongoing court case (even with those not yet proven guilty) — which is not against the principle of forming a Unity Government,” he said to TMR.

Among the ongoing high-profile cases is DAP national chairman Lim Guan Eng who was accused of using his position as the then Penang chief minister to receive a bribe of RM3.3 million in connection with the Penang undersea tunnel project. Lim was accused of asking for 10% of profits from Datuk Zarul Ahmad Mohd Zulkifli’s company, Zenith Construction Sdn Bhd, to secure the project to build the undersea tunnel.

The Bagan MP is also accused of causing two plots of land worth RM208.8 million to be sold to two companies claimed to be connected to the undersea tunnel project.

His trial began on July 13, 2021, at the Sessions Court, and the hearing is currently in the hands of the prosecution.

Former Youth and Sports Minister Syed Saddiq Syed Abdul Rahman, meanwhile, is also currently on trial for the misappropriation of more than RM1 million linked to Parti Pribumi Bersatu Malaysia, as well as CBT. He is also charged with engaging in money laundering activities.

His trial started on June 21, 2022, at the Kuala Lumpur High Court and on Oct 28, the incumbent Muar MP was ordered to enter his defence on charges of abetting in CBT, misappropriation of assets and money laundering by the High Court.

Another high-profile individual is Kinabatangan MP Datuk Seri Bung Moktar Radin. The Sabah deputy chief minister and his wife Datin Seri Zizie Izette A Samad were charged with three counts of accepting bribes totalling RM2.8 million, related to a Felcra Bhd investment of RM150 million in Public Mutual Bhd’s unit trusts. The High Court granted a stay on the trial pending disposal of their application for a review of the Sessions Court order.

Commenting on how long should the duration for a proceeding of a criminal case be, Ganesan said as long as it takes.

“A case can be prolonged to as long as it takes,” Ganesan said in a gist.

On that note, International Development Association senior strategy officer Georgia Harley mentioned that there is no single international rule on how long cases should take as each case must be considered on its own merits.

“However, the European Court of Human Rights (ECHR) has listed some ‘rule of thumb’ for this as guidelines.

“The ECHR generally considers two years to be reasonable in normal (non-complex) cases. After a two-year period, the European Court closely examines the case to determine whether the national authorities exercised due diligence in the process.

“The ECHR may find a violation in a priority case even if the case lasted less than two years. ‘Priority cases’ are those that require a quick resolution to be effective, such as labour disputes involving dismissals or unpaid wages, trade restraint, compensation for accident victims, police violence cases, cases where the applicant is elderly or their health is critical, and cases involving child-parent relationships,” Harley said.

She added that although the ECHR may find that a longer period of time is reasonable for complex cases, the court still pays close attention to periods of inactivity to determine whether there were excessive delays.

“More than five years has rarely been judged fair by the ECHR. It has never deemed more than eight years to be reasonable. The only times the court did not find a violation in a case that was more than five years was when the party’s own behaviour contributed to the delay,” she explained.

On that note, one of the high-profile individuals whose final outcomes in the Malaysian court are still pending include former PM Datuk Seri Mohd Najib Razak’s 1Malaysia Development Bhd (1MDB) trials where he is facing charges for four cases relating to the insolvent Malaysian strategic development company — the main 1MDB trial, the 1MDB audit report tampering trial, the International Petroleum Investment Co (IPIC) case and one for allegedly money laundering charges involving RM27 million in SRC International Sdn Bhd, a former subsidiary of 1MDB.

The IPIC and money laundering cases have yet to begin, while the main 1MDB and audit tampering charges are still pending in the High Court.

Najib was previously convicted of all charges (seven counts of misappropriation of RM42 million from SRC International) on July 28, 2022. He was fined RM210 million and sentenced to 12 years in prison.

His appeal was unsuccessful when the Federal Court upheld his conviction on Aug 23. Although the former PM is currently serving a 12-year prison sentence at Kajang Prison, Selangor, he has since requested a royal pardon and a reconsideration of the Federal Court’s verdict.

He also failed to set aside a Mareva injunction obtained by SRC International and one of its subsidiaries to restrain him from transferring or dissipating any of his assets amounting to RM42 million.

On Dec 7 he lost his appeal in the Federal Court to disqualify Gopal Sri Ram from continuing to act as senior deputy public prosecutor.

On the next day, he again lost his appeal to get banking documents relating to investment bank Goldman Sachs and former Bank Negara Malaysia governor Tan Sri Dr Zeti Akhtar Aziz’s family for use in his 1MDB trial.

At the same time, Najib’s wife Datin Seri Rosmah Mansor is also facing 12 money laundering charges for allegedly receiving at least RM7 million from allegedly illegal activities, as well as five counts of failing to declare her income to the Inland Revenue Board (IRB).

However, the hearing has yet to commence due to her appealing against two decisions by the High Court in dismissing her application to remove the current trial judge from presiding over her case.

Rosmah was also previously convicted for soliciting and accepting bribes amounting to RM194 million in return for assisting in a government contract to supply energy to rural schools in Sarawak. She was sentenced to 10 years’ imprisonment and a record fine of RM970 million. She is currently appealing her conviction and sentence.

On Dec 1, the High Court fixed 15 days beginning from May 12 next year (May 12; June 28 and 30; July6,7,27,28and31;Aug1,2,11, 24 and 25; and Sept 7 and 8, 2023) for her hearings.

Then, on Dec 8, the Court of Appeal set May 18, next year for hearing of an appeal by Rosmah over her judicial review to challenge Sri Ram’s appointment as lead prosecutor.

  • This article first appeared in The Malaysian Reserve weekly print edition