Restoring ‘akal’ and ‘budi’ to Malaysia

 

The High Court’s grant of a “discharge not amounting to an acquittal” (DNAA) to deputy prime minister Ahmad Zahid Hamidi has stirred up massive debate.

Zahid was on trial for 47 charges, several of which were related to the financial affairs of his charitable foundation, Yayasan Akalbudi. A prima facie case had already been made out against him when the attorney-general (AG) suddenly applied for the court to grant him a DNAA.

The request is something the AG can make as of right, as established in several written judgments on the point.

The court can, however, refuse the request and direct the AG to complete the hearing, with a caution that, if he does not, the accused will be granted a full acquittal.

In the Akalbudi case, the AG exercised his right to plead for a DNAA, which the learned judge granted based on the peculiar facts and circumstances of the case and to safeguard the integrity of the seat of justice.

The judge was no doubt aware of trite criminal jurisprudence that the court must not allow the sword of Damocles to hang over an accused person’s head.

It came as no surprise to me to learn that the eminent and learned counsel for Zahid immediately filed an appeal.

At this point it is not necessary to even speculate whether the Court of Appeal or the Federal Court will finally grant him an acquittal. Those proceedings are likely to take a long time, by which time many key players may not be around.

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Several features of Zahid’s case and several other high profile prosecutions of recent times have troubled me. They suggest that we as a nation have lost some “akal” (intellect) and “budi” (ethics).

Firstly, the unusually high number of charges brought against him. I consider it a novice prosecutorial practice to prosecute anyone on more than a handful of charges at any one time under our Criminal Procedure Code.

It is also unacceptable criminal practice to run a criminal trial that is liable to go on for days, months and years on an instalment basis.

Surely it is a matter of common sense that the longer a criminal trial runs, the greater the prospect that the integrity of the trial system itself will be compromised.

One of the biggest drawbacks of a lengthy trial is that many key players and witnesses may not be around right through to its completion.

Here, consideration must be given to the right of the defence to ask for prosecution witnesses or evidence to be recalled or for the production of material witnesses whom the prosecution did not call.

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If prosecutors are not able to produce the witnesses or evidence in court, the presiding judge may have no alternative but to invoke an adverse presumption which may in some circumstances result in victory to the defence almost by default.

Over the years, many criminal cases in Malaysia have failed simply due to delays in the trial process which have resulted in the prosecution being unable to produce a witness. Such situations risk reducing criminal prosecutions to a sham process.

A revamp of the system is necessary with a modified methodology of selecting jurors from an arbitration pool under a concept I proposed at a BAIAC conference in Singapore last year.

My proposal will result in big savings for the exchequer and will make the academia and the legal industry robust in law.

In my view, the decline in “akal” and “budi” can be traced back to the time when Umno was declared illegal some 35 years ago with the indulgence of the best brains in the country then. Unfortunately, they were unable to foresee the collateral damage it was likely to cause to our institutions, not least the legal industry.

Umno Baru, the new manifestation of the party which arose thereafter, no longer ran the country with “akal” and “budi”. Over the years, the whole system of government became tainted, raising our corruption perception in the international arena.

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That has led the country to the edge of destruction, saved only by the presence of the Malay rulers and the army which is under their control.

Kudos to our founding fathers for not trusting politicians and for only giving “licencing” rights to the executive, legislature and judiciary to administer the country while reserving the security guarantee of the nation to the Malay rulers.

For the sake of expeditious justice, it is time for the Madani government to introduce a jury system as I have suggested in a number of my articles.

My concept of removing the trying of facts from the hands of the judiciary is key to clearing the backlog and for expeditious justice with integrity at its forefront.

Unlike politicians and activists who merely make noise in the news, I actually have a workable solution to offer. With the support of my team, I can provide a methodology to achieve it within two years, if the Madani government agrees.

Malaysia today is no longer a country respected for “akal” and “budi”.

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All Malaysians must join hands to make sure all givers, aiders and abetters are charged in a court of law. If convicted, their property must be confiscated.

That will rid the country of the corrupt, corruptors and kleptocrats, all of whom will no longer pose a threat to the nation.

The incoming AG and the Malaysian Anti-Corruption Commission must understand and adopt this common sense approach to eradicate corruption and restore “akal” and “budi” to the nation as soon as possible. - FMT

The views expressed are those of the writer and do not necessarily reflect those of MMKtT.