Probe on 'fake notes' must be independent

 

"Based on new findings (obtained) through Noor Ehsanuddin's new (defence) statement, the accused successfully proved that he had paid back the sum in question BEFORE (emphasis is the writer’s) the start of the (initial) investigation. A key witness also confirmed the matter (money) as advances."

- MACC statement, Sept 6

"ACAB views there are shortcomings in the investigation; and the decisions by the Attorney-General’s Chambers in early February 2019 and the MACC management and administration at the time was made without a comprehensive consideration. Because of actions at the time that was not transparent, unprofessional and leaned towards political interests, the MACC management today has to bear its consequences.”

- MACC Anti-Corruption Advisory Committee (ACAB) chairperson Abu Zahar Ujang, Sept 7

These two statements made in relation to the withdrawal of 29 charges of corruption against former Felda board member Noor Ehsanuddin Mohd Harun Narrashid on May 21 were unpalatable, unacceptable and at the worse irrational and ridiculous.

In two commentaries published two weeks ago, I asked a loaded question: Is it legal and acceptable for any person to accept gratification and later repay the money and call it “advances” to escape prosecution? No answers have been forthcoming from the MACC or ACAB chairperson Abu Zahar Ujang. 

But what happens if the MACC officers allegedly involved in the missing millions offer the same defence used by Noor Ehsanuddin under Section 62 of the MACC Act?

So, if they return or replace the allegedly stolen money, wouldn’t it be a case of what’s good for the goose is also good for the gander? But lawyers say such a defence is not available to them as in this case, it is theft of public money and not a bribe or laundering of money. 

That’s assuring indeed but it is debatable and arguable as legal opinions defer depending on which side you are representing. Since the investigations are being carried out by the MACC itself, will it not prejudice the case? 

The rules of natural justice state that in making a decision, there should be no bias in the person making the decision as he or she must act impartially when considering the matter, and must not have any relationships with anyone that could lead someone to reasonably doubt their impartiality.

Similarly, the same can be said of investigations as there is always a likelihood of bias when investigating wrongdoing by a colleague, a friend or a family member. To dispel any notions of doubts on impartiality, it is imperative that an “outsider” – someone totally unconnected – be involved in the investigations.

In the past, many files had been closed and marked as “no further action” (NFA) for various reasons. What happens when the customary “not enough evidence” is offered to allow them to go free? What happens when they use another claim that “witnesses were not cooperative"?

In this case, it has been reported that counterfeit notes were used to replace the stolen greenbacks but where did these notes originate from? What happens when this source suddenly becomes untraceable?

No police report made

Whatever “independent investigation” put forward by MACC chief Azam Baki is utter bunkum and he must give a plausible explanation as to why a police report was not made on the commission of a criminal offence as soon as it was discovered.

Shouldn’t the Riot Act be read to Azam and shouldn’t this charade and promises of “independent” investigations be stopped as a police report is mandatory.

Section 202 of the Penal Code states: “Whoever, knowing or having reason to believe that an offence has been committed, intentionally omits to give any information respecting that offence which he is legally bound to give, shall be punished with imprisonment for a term which may extend to six months or a fine or both.”

But must there be a report before the police start investigations? The answer is “no” as in many court cases, we have come across police officers testifying that they made the report after reading articles in the media.

In short, the investigation must not only be independent but seen to be independent.

So, why are the police dragging their feet? But I could be wrong because there is yet another twist to this whole affair. On Tuesday, Free Malaysia Today quoted Bukit Aman Criminal Investigation Department director Abd Jalil Hassan as saying that "relevant information will be obtained from the owner of the blog – Edisi Siasat – to assist in the investigation”.

“We are also tracking down the operator of the blog site to obtain information and conduct further investigations and the act of disseminating and transmitting untrue information is wrong and can be investigated,” he said.

Untrue information? Surely the police have better things to investigate because a statement subsequently from the MACC confirmed the arrest of three officers and that they had been remanded for a week. A case of shooting the messenger?

Now, let us look at another scenario: The alleged perpetrators plead guilty as charged before a judge. The prosecutor will read out the facts of the case given to him by the investigating officer or the deputy public prosecutor in the MACC office.

In this scenario, wouldn’t certain important issues be purposely omitted to protect the weaknesses which led to the theft? What would have been the role of minor players like officers holding the keys to the secured room where valuable exhibits are stored? Isn’t there a logbook in which removal of exhibits is maintained? So many other questions will remain unanswered.

Some may conclude that these observations are conspiracy theories but I beg to differ. These are probabilities that must be anticipated. There have been calls for Azam to go on garden leave to allow a truly independent police team but will he? - Mkini

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R NADESWARAN is closely following the saga of the missing millions in the custody of the MACC and hopes its head honcho does the right thing. Comments: citizen-nades22@gmail.com

The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.