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Friday, August 28, 2015

Will Umno’s ‘David’ bring down ‘Goliath’?

Will Anina’s legal suit be enough to cause the political death of the prime minister?
COMMENT
anina-najib
It is Umno’s version of David versus Goliath.
In a legal suit filed this morning, Umno member Anina Saadudin of the dreamy island of Langkawi, armed with a catapult, has waged war on the mighty Datuk Seri Mohd Najib Tun Haji Abdul Razak, the party’s president and prime minister of Malaysia. It is the unlikeliest of battles, brought by a woman who entered the limelight suddenly and quite ingloriously earlier this month.
Yet, the case may be an Umno-styled re-definition of the time-honoured legal maxim ‘donatio mortis causa.’
In conventional legal terms, ‘donatio mortis causa’ is a transfer of property made in contemplation or anticipation of the death of the maker. In Umno’s re-definition, however, it may be that a donation spells the political death of its party president.
At first blush, Anina’s is a clever legal suit, with its focus trained on the narrow issue of the world famous middle-eastern ‘donation’ purportedly made to help ensure the political perpetuity of Malaysia’s foremost political party.
It is a clever suit because it bypasses many questions which are seemingly relevant in public debate – Was it really a donation? Who was this generous donor? What were his motivations? Was it legal?
For the purpose of this suit, those questions are treated as irrelevant.
Instead, the suit restricts itself to a series of admissions made by the prime minister and others in his camp, namely, that money did enter into his personal account, that he did not account for it and for its use at the material time or even now, and that US$650 million was sent back out to an account which no one in Umno apart from its president appears to have had any knowledge of.
In the face of such open-ended admissions which have been continuously made and widely seen, heard and read in the mass media, there is very little room available for backtracking, leaving them to become indisputable core facts.
Several provisions of law will come into play. Sections 14(d) and 26 of the Societies Act, 1966 require the accounts of a registered society to be audited and filed. Obviously, the failure to account for such a massive sum of money is likely to render the audited financial statements of Umno gravely flawed.
As party president, Najib is obviously ultimately responsible for material non-disclosures and inaccuracies in the party’s accounts. As the only person who knew of the existence of the funds at the time, there seems to be no one else whom he can point the finger of blame at!
Then there are potential breaches of Umno’s constitution to grapple with. Article 27.2 requires movable property such as cash to be held in the name of trustees of the party appointed by the Supreme Council. Is there proof of any such appointment? Articles 26.2 and 26.3 provide that all money belonging to Umno must be deposited at banks, and withdrawals are to be made only by cheques jointly signed by two or more signatories. Was there compliance?
Have there been violations of Umno’s Tataetika in respect of the receipt and distribution of these funds?
What are the implications of such breaches?
Anina herself has many legal hurdles to cross to get this action through to trial. Perhaps that is best left for another occasion.
Many twists and turns loom in this previously unthinkable but now much anticipated legal battle.
Thus far, the public has lamented the destruction of just about every other public institution in the wake of the 1MDB and donation scandals. The judiciary is one of the few that appear to have escaped unscathed. This case, however, will no doubt put the courts of justice in the spotlight. How it will fare remains to be seen.
It is David versus Goliath, Umno-style. How good a catapult-shooter is tiny Anina? Will she bring about the political death of the man some call the most reviled prime minister in Malaysian history? Only time will tell.

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