In September 2003, Al Jazeera reported these words: “Malaysia has dropped a multimillion-dollar corruption case against Deputy Prime Minister Ahmad Zahid Hamidi on charges he defrauded a foundation.”
It also wrote “Zahid had faced 47 charges involving multiple counts of criminal breach of trust, corruption, and money laundering related to the misuse of $27m of funds at Yayasan Akalbudi, a charity he established to eradicate poverty.”
And yesterday, the Attorney-General’s Chambers (AGC) dropped another bombshell by announcing to the whole world that no further action (NFA) will be taken in relation to a discharge not amounting to an acquittal (DNAA) granted to Zahid, even though the prosecution managed to prove a prima facie case against him for the aforesaid 47 criminal charges against him.
And now Zahid’s lead defence counsel, Hisyam Teh Poh Teik, has also indicated that his client would file an application in the Court of Appeal to convert the DNAA into a discharge amounting to an acquittal (DAA).
While this writer has no slightest intention of disputing, let alone challenging, the constitutional power conferred on the attorney-general (AG) cum public prosecutor under Article 145 (3) of the Federal Constitution, the AG’s decision in firmly transforming the DNAA into an NFA is indeed and truly appalling.
For a start, it is very hard not to conclude that the decision by the AGC was not politically motivated unless the chambers or for that matter, the government, believe that Malaysians are too naive or - to borrow one of Mr Bean’s dialogues - “they are a bunch of nitwits!”
Anyway, I intend to focus my comment on this issue from a legal prism. Let me start with the decision by the High Court judge to call Zahid for the defence of his 47 criminal charges.
The decision was made because the judge firmly believed - having made a maximum evaluation of all the evidence presented by the prosecution against Zahid - there had been strong and iron-clad evidence successfully adduced by the prosecution at the end of its case.
In law, lawyers say the judge held that the prosecution managed to prove a prima facie case against Zahid.
Understanding prima facie
What does the term prima facie signify in a criminal trial in Malaysia? In legal parlance, prima facie entails the issue of the standard of proof, meaning the quantum of proof which needs to be presented in court. Or simply put, how much do you need to prove?
Before 1997, there was some debate as to the standard of proof required to establish a prima facie case.
It was sparked by a court decision holding that a prima facie case should be established through a simple question of whether the prosecution’s evidence is reasonably credible at first sight, i.e. a minimum evaluation of evidence.
The debate, however, ended when the Criminal Procedure Code (CPC) - a law which governs the procedural mechanism of a criminal trial - was amended by inserting section 180(4) therein. And the section reads:
“For the purpose of this section, a prima facie case is made out against the accused where the prosecution has adduced credible evidence proving each ingredient of the offence which, if unrebutted or unexplained, would warrant a conviction. (emphasis added).”
By virtue of the said amendment, we may say almost all experienced criminal lawyers unanimously believe that the prima facie standard has now transformed from “the accused is probably guilty” to “the accused is as good as guilty beyond a doubt”.
Why? With the insertion of a new provision in the CPC, i.e. section 180(4), many experienced members of a criminal bar hold that a conviction can only be warranted when an accused person’s guilt is proven beyond a reasonable doubt, i.e. after a maximum evaluation of the prosecution’s evidence by the judge.
Zahid’s fortunate turn
I vividly remember attending a conference held by the Bar Council on the legal impacts of the right of the accused person, like Zahid, to remain silent if the prosecution managed to prove a prima facie based on the standard of proof stated in section 180(4) of the CPC.
A popular belief held by seasoned criminal lawyers is that once the court decides that the prosecution has successfully proven a prima facie case, there is a strong likelihood that the accused might be convicted of the crimes and guilty as charged.
Hence, sticking to the right to remain silent would no longer be an option.
And Zahid, who was called for defence at the end of the prosecution case for his 47 criminal indictments, apparently opted to adhere to his lawyer’s advice by not remaining silent after the prosecution managed to prove a prima facie against him.
Instead, he preferred to enter his defence by giving a sworn testimony.
And Zahid was highly fortunate thereafter in that the AGC decided not to proceed with the prosecution of him, resulting in the judge granting him a DNAA verdict.
And now, despite the repeated promises ad nauseam made by the prime minister to go all out in combating corruption, Malaysians are told that NFA will be taken by the AGC in relation to Zahid’s DNAA.
It seems that Zahid has hit a jackpot once again! Wait a second, am I missing something here? - Mkini
HANIPA MAIDIN is a former deputy law minister.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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