Tabung Haji RCI findings alone insufficient for prosecution, says former judge

 

The findings of the royal commission of inquiry into Tabung Haji cannot, by themselves, form the basis for prosecuting anyone, as further investigations are needed to obtain testimony and evidence admissible in court, said former Court of Appeal judge Yaacob Sam.

He said an RCI report was not legally binding and could not be used as evidence in criminal or civil proceedings under the Commissions of Enquiry Act 1950.

Following the public release of the Tabung Haji RCI report on July 29, he said findings concerning management and operational weaknesses at the institution between 2014 and 2020 must first be re-examined by enforcement agencies before legal action could be taken.

“An RCI conducts inquiries based on terms of reference determined by the government and makes findings and recommendations for further action. Only evidence gathered independently by enforcement agencies through their investigations can be presented in court,” he told Bernama when contacted.

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Yaacob, who has served as a conducting officer and secretary for several RCIs, said not every instance of mismanagement, failure to manage, or negligence constituted a criminal offence, as this depended on whether the specific elements of an offence prescribed by law were present.

He said an act could constitute a criminal offence if it involved elements such as criminal intent, criminal breach of trust involving entrusted assets or funds, fraud arising from decisions or personal interests, or conflicts of interest that resulted in benefits or gains for those involved.

“If it involves merely mismanagement, failure to manage, or negligence, the matter may give rise to civil liability, such as a breach of fiduciary duty, which could result in legal action to recover funds or assets lost due to the breach,” he said.

Nearly 200 questioned as probes continue

Meanwhile, lawyer Haniff Khatri Abdulla said criminal action must be taken if investigations establish that an offence had been committed and sufficient evidence exists, regardless of the individual’s position.

He said such action was important to ensure the RCI’s recommendations on Tabung Haji were translated into appropriate measures, while restoring public and depositors’ confidence in the institution and the investigative process.

“That is what the public wants to see. The sooner we can resolve straightforward matters and bring them to court, provided there is sufficient evidence, the more public confidence will grow,” he said.

However, Haniff stressed that prosecuting a particular case would not mean all investigations arising from the RCI report had been completed, as inquiries into other matters could still be ongoing.

Based on information he received, nearly 200 individuals were called separately by the police and MACC to record their statements, with investigations expected to continue for another three to six months.

He also proposed that the Attorney-General’s Chambers establish a special unit comprising three deputy public prosecutors with experience in MACC cases and general criminal law to oversee and comprehensively assess all investigation papers related to the Tabung Haji RCI submitted by the police and MACC.

He said such a mechanism could improve investigative efficiency, particularly as the RCI involved two enforcement agencies that follow different procedures in handling investigation papers.

Earlier, MACC chief commissioner Abd Halim Aman reportedly said the commission opened 14 investigation papers and conducted arrests, remand applications, seizures, inspections and searches at 28 premises.

- Bernama