Musa Aman's acquittal: Decision fair and accurate

Musa Aman, through his lawyers, had filed two applications in the High Court of Kuala Lumpur.

One of the applications was to strike out all the charges against our client (Kuala Lumpur High Court Criminal Application No.: WA-44-46-02/2020), whereas the other application was a reference to the Federal Court in respect of constitutional issues (Kuala Lumpur High Court Criminal Application No.: WA-44-47-02/2020).

The striking-out application was filed on Feb 12, 2020 supported by an Affidavit-in-Support stating the facts and enclosing important and relevant documents.

Both applications were initially scheduled to be heard on April 23 and April 24, 2020. However, due to the movement control order, the hearing of both applications was postponed and the case was called again today.

This application filed in court was a process under the law. To support the application, we presented the facts in detail in Musa’s Affidavit-in-Support. Important and relevant documents, including from the Hong Kong Independent Commission Against Corruption (ICAC), were enclosed in the affidavit.

In addition, we also filed an affidavit from former Attorney-General Abdul Gani Patail. The facts supporting the application is summarised here for the convenience of all parties.

Abuse of legal process

Musa Aman was previously investigated by ICAC dan the MACC between 2008 and 2011. Throughout the investigation period by the ICAC and the MACC, both parties cooperated and communicated between agencies, and conducted their respective investigations professionally.

After conducting a thorough investigation, the MACC found that there was no element of corruption and that the monies investigated were political donations. This was verified by the former MACC Investigation Division Director Mustafar Ali and informed to the ICAC in a letter dated September 2011.

After their own investigation, the ICAC issued a letter dated Dec 22, 2011 to our client, stating that the investigation against our client had been completed and no further action would be taken against him.

The outcome of the investigation by the ICAC clearly showed that our client was not involved in any corrupt activities. As of today, there have been no further investigations by the ICAC against our client.

In respect of the investigation by the MACC at that time, the outcome of the said investigation was studied and inspected by the Attorney-General Chambers (AGC) in 2012. The study showed that our client was not involved in any corruption and money laundering offences.

The outcome of the investigation and the decision to not proceed, or to not take any further action against our client, were deliberated upon by Abdul Gani, former Prosecution Division head Abd Majid Hamzah, former MACC Chief Commissioner Abu Kassim Mohammad, and former MACC Investigation Division director Mustafar Ali, among others.

The outcome was also accepted by the MACC’s Anti-Corruption Advisory Board. This clearly showed that the decision was carefully considered and had gone through existing legal channels.

In addition, this issue was raised in Parliament, when Nazri Aziz explained that the AGC had found that the element of corruption had not been proven against our client. The donations received were donations to Sabah Umno and were not for the personal use of Musa.

Was the prosecution in November 2018 political persecution?

After the 14th General Election on May 9, 2018, Musa was appointed as the legitimate chief minister of Sabah. 48 hours later, Yang di-Pertua Negeri Sabah (TYT) had subsequently appointed another chief minister to replace Musa.

The TYT’s action and the appointment of the second chief minister have been disputed as invalid, as per Musa’s on-going civil case at the Federal Court.

In the early stages of the civil case, the High Court of Kota Kinabalu had fixed Nov 7, 2018 to deliver a decision (Civil Case Decision).

The ICAC and the MACC found that Musa did not commit any corruption offence after lengthy investigations. However, the authorities, for reasons known only to them, made the decision to arrest and prosecute Musa two days before the Civil Case Decision.

This action had directly or indirectly provided a political advantage to Musa’s political foes. Does this not indicate that the prosecution against Musa was mala fide and a form of political persecution?

Suspicion also arose considering that the prosecution in November 2018 was based on the same evidence and facts as the thorough corruption investigations completed by two independent investigating bodies, the ICAC and the MACC.

These events raised a key question. What was the actual motive for prosecuting Musa again?

Political persecution and mala fide prosecution were raised in the striking out application because this incident revealed the possibility of an abuse of the legal process.

If the case were to continue, it would expose the government to a malicious prosecution lawsuit from Musa.

This fact was further enforced on March 5, 2019 when the deputy public prosecutor, through a statement of facts favourable to the defence under section 51(A)(1)(c) of the Criminal Procedure Code, confirmed the decision made by Abdul Gani (above).

It must be stressed that, from the point of law, a decision made by the attorney general as the public prosecutor contains a certain value which cannot be underestimated and cannot be arbitrarily reversed without strong grounds.

This is because every decision made by the public prosecutor will have an effect on an individual who is the subject of an investigation or prosecution. We refer to a passage in the Court of Appeal Judgment in the case of Harun Abdullah v PP [2009] 4 CLJ 717: “It will be a dark day if a Public Prosecutor’s words have no finality and may be ‘broken’ without any compunction.”

A professional public prosecutor must be consistent and should defend previous decisions that had been made following due process. This applies even more so when the prosecution in November 2018 was not based on new facts, but on the same facts that had already been investigated and decided upon by the ICAC and the MACC, with the findings that there were no elements of corruption.

This is important to reflect the integrity and professionalism of, not only the office of the public prosecutor but the AGC as a whole. Therefore, the decision by Attorney-General Idrus Harun was fair and accurate in the eyes of the law.

Charges against Musa were groundless

Regarding the sum of money, the subject of the prosecution, this was explained during the previous investigation. The monies were political donations that were given by political party supporters, donors, members of the public, and central BN/Umno for the purposes of by-elections and the general election, activities, and expenditure of Sabah BN/Umno. All the relevant and related documents were handed to the MACC.

At all material times, the political donations were not related to the award of any projects for the state of Sabah or to timber concessions, nor were they given on a quid pro quo basis.

The giving or receiving of political donations is not an offence in Malaysia. This was confirmed by the MACC in a statement made by then MACC Deputy Commissioner (Operations) Azam Baki (above). He confirmed that the giving and receiving of political donations were not offences and that the MACC has no jurisdiction over political donations in Malaysia. This was reported in the New Strait Times on Oct 7, 2017.

Based on the reasons above, we believe that Idrus and the line of deputy public prosecutors who handled this case had reviewed our application that was filed in the court objectively, taking into account all areas of law and the aspect of justice.

Based on the reasons given, the prosecution had professionally informed the High Court on June 9, 2020 that they were withdrawing all charges against Musa, in accordance with Section 254 of the Criminal Procedure Code.

The learned High Court judge Muhammad Jamil Hussin, after hearing the submissions of the defence on the background of the case and the legal provisions, exercised his discretion and ordered that Musa be discharged and acquitted of all charges.

The defence subsequently withdrew the striking-out application based on the latest development. - Mkini