Differing intentions in the Sabah mining fiasco?

 The important element to be scrutinised is the intention of both the purported whistleblower and the assemblymen at the material point in time.

From Amer Hamzah Arshad

The Sabah mining fiasco has drawn public interest and sparked debates on corruption issues involving the role of alleged whistleblower Albert Tei, who is said to have given funds to several Sabah assemblymen, who in turn are said to have received the funds, believing them to be political donations.

For the purposes of this discussion, it is important to note that Malaysia has yet to legislate any political financing law. The discussion on this fiasco has to be viewed and analysed against this background.

As a starting point, it is instructive for us to appreciate that in all criminal cases, there are two main elements that have to be established in a court of law before one can be found guilty — “actus reus” (guilty act) and “mens rea” (guilty mind).

These elements must also exist in a corruption case, and the interplay between these two is very crucial, particularly when the parties involved have differing understandings and intentions of the nature of the transactions.

On the one hand, Tei claims that he should not be charged on the basis that he was a “whistleblower”, and on the other hand, the assemblymen maintain that the funds given were nothing more than political donations.

There seems to be differing understandings and intentions between the giver and the recipients.

While the Malaysian Anti-Corruption Commission (MACC) Act 2009 criminalises both giving and receiving bribes, the important element that eventually has to be scrutinised is the intention of both parties, that is, whether there was corrupt intention in the transaction.

In other words, what were the intentions of Tei and the assemblymen at the material point in time?

If it can be shown from the evidence or even admissions in public domain (for example, through media reports) that Tei unilaterally intended to give the funds with the objective of securing mining licences, then it is open for one to conclude that he had corrupt intention when he provided the funds.

For the assemblymen to be found liable, there needs to be a meeting of minds that the funds were for mining licences. They have made it clear that they were of the view the funds amounted to nothing more than political donations.

Given the fact that there is no specific law governing politicians from receiving donations, they genuinely believe that they have not committed any wrongdoing.

Additionally, the fact that the assemblymen were not part of Sabah Mineral Management Sdn Bhd, giving them no position or power to approve mining licence applications, among others, would be relevant circumstances to corroborate the recipients’ defence.

If the recipients genuinely believe the payment was a legitimate donation (without any expectation of a quid pro quo), this could negate their mens rea for corruption.

Their defence would hinge on demonstrating that their beliefs were reasonable and held in good faith, with no awareness of the giver’s corrupt intent.

Ultimately, all the relevant facts and circumstances have to be analysed in order to determine the intentions of both parties.

Having said that, if the recipients can establish they did not share Tei’s intention, the latter’s corrupt intent could still be established for offering and giving bribes. This is due to the fact that the giver’s guilt depends on his own state of mind, not that of the recipients.

Moving forward, in order to minimise, if not eliminate, this situation from recurring in the future, and to prevent unscrupulous individuals from taking advantage of donations they make to politicians, perhaps it is time for the various legislatures to seriously look into legislating a political financing law. - FMT

Amer Hamzah Arshad is a lawyer and an FMT reader.

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