Legal challenges in prosecuting Daim for old cases

 Former finance minister Daim Zainuddin is expected to be charged in court next week.

The Madani government should be commended for going all out to declare a war against corruption.

Nonetheless, it must be able to convince the intelligent voters that it is in the national interest that it badly needs to charge Daim but to keep the deputy prime minister - Ahmad Zahid Hamidi - despite being called to enter defence for 47 criminal charges.

When the Madani government has declared its commitment to wage a war against corruption, such a declaration may garner a slew of support from citizens and netizens.

The government's action against a few old politicians like Daim may be seen as part of such a war.

Nevertheless, I need to gently remind the government that the risk of bringing old criminal cases to court is real.

The government may be oblivious to this ironclad perception. In politics, perception matters. Hopefully, the government is ready to counter such a perception that the latest move has nothing to do with any political vendetta.

The Madani government must be ready to come up with a good narrative to convince intelligent voters.

Winning chances must be high

Legally speaking, prosecuting old cases in court is a relatively uphill task as the prosecution may face a herculean challenge in securing a conviction.

There is no point in dragging any alleged criminal to court if the chances of securing a conviction would be minimal. After all, the ultimate goal of prosecution would be a successful conviction.

In addition to that, criminal prosecution may entail public funds as well. Hence you don't prosecute unless the likelihood of securing a conviction is high and almost guaranteed.

Outside the court - especially in the political gallery - it would be easy to loudly proclaim that a particular person or politician is corrupt.

In my view, former prime minister Najib Abdul Razak’s case and Daim’s case are poles apart. That is why not even a single judge harboured any doubt that Najib was guilty as charged.

Anyway, it is a totally different ball game inside any court of law. In court, every single accusation needs to be satisfactorily and carefully established beyond reasonable doubt via cogent and admissible evidence. Suspicion, however strong, cannot replace evidence.

Time matters

Based on my considerable experience, the quality of evidence to be presented in court may be severely damaged and highly compromised when an old case is prosecuted. Generally, prosecuting agencies are a bit reluctant to prosecute old cases.

One thing is for sure, the prosecution may have difficulty tracing some relevant and important evidence and some prosecution witnesses may have difficulty recollecting their old memory hence compromising the efficacy and quality of their oral testimony in court.

Worse, the prosecution witnesses may be subject to brutal cross-examination from experienced and able criminal advocates.

Prosecuting any alleged culprit is doubtless part of public undertakings. Hence such a task should only be carried out for the sake of public interest and nothing else. Period.

If it is found out that such an undertaking is unnecessarily motivated by other elements, the integrity of such a prosecuting agency may be subject to public opprobrium. And that would not be a good omen to the government. - Mkini

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MOHAMED HANIPA MAIDIN is a former MP for Sepang and former deputy minister in the Prime Minister’s Department (Legal Affairs).

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