The changing complexion of law

The changing complexion of law



From Zaid Ibrahim

December 8th, 2021.

On this day, the Court of Appeal will give its verdict on the charges against former prime minister Najib Razak in the SRC International case.

Some of my friends have asked me if the Appeals Court would uphold trial judge Mohd Nazlan Mohd Ghazali’s decision. Or will the decision be reversed.

The judge wrote a 500-page judgment, probably the longest judgment ever written in the history of the country. (I am proud to say Nazlan was a fine lawyer – but too quiet for my liking – when he was with me some years ago.)

Will Dec 8 be a propitious day for Malaysia?

I told my inquisitive friends it is hard to tell how the law operates in Malaysia when it involves influential political personalities.

On 1MDB and SRC, the then-Attorney General Mohamed Apandi Ali was convinced of Najib’s innocence, exonerated him altogether, and preferred no charges. Tommy Thomas, another former AG, however, did the opposite and chose multiple charges against the former PM.

The Malaysian Anti-Corruption Commission (MACC) found nothing wrong with the dealings by 1MDB in 2016 yet changed its findings when Dr Mahathir Mohamad became prime minister in May 2018.

When Tommy Thomas was the AG, he decided to drop all charges against Lim Guan Eng in connection with the undersea tunnel project in Penang. Soon after the change in government in March 2020 and another AG took over, the former Penang chief minister was again charged for those offences of corruption.

Laws in this country change complexion when high-powered politicians are allegedly involved. Somehow, we have the knack of finding the right kind of AG to suit the needs of the reigning prime minister.

It is uncanny, even surreal, that we are able to find such compatibility in the relationship between two powerful personalities in the country without much difficulty.

Just look at Tengku Adnan Mansor’s corruption case. The Court of Appeal, by a majority decision, found him not guilty of receiving bribes, although the money went straight to his account.

The giver of the “bribe” never had a history of making any political donation, had never been involved in any political activities, nor was he a champion of social causes to suggest his inclination to make political donations.

Why would a businessman give political donations running into millions when he has never made such a donation before? Yet the majority – except the dissenting one, Abu Bakar Jais (my former lawyer, I am proud to declare) – believed him. The majority did not think it was a bribe because “the giver” (a business friend of Ku Nan) said it was not a bribe.

One would think that the Ku Nan case has established a precedent where the giver of a bribe now can declare it was a donation and our courts will accept his word. That is all it takes for a complete defence to a prosecution for bribery and corruption under the Penal Code.

Why Ku Nan was charged under a Penal Code offence which carries a two-year jail term and not under the MACC Act which carries 20 years, is another strange thing in this case. But don’t bother to ask the AG why because he expects you to understand that it’s all about discretionary powers vested in him.

This Ku Nan precedent augurs well for another political strongman Ahmad Zahid Hamidi
who avers that the money in the Yayasan Akalbudi (a foundation) account was for charity, although that did not prevent him from spending it on himself and his family.

In this case, the “donations” were all made by companies that did business with the home ministry when Zahid was deputy prime minister and home minister.

The people had hoped that the government was serious about fighting bribery and corruption. The people had hoped our courts will reciprocate accordingly when cases do come up for decisions.

The present AG should be concerned about the ramifications of this decision in the Ku Nan case. It was an awful decision because to many of us, it was a crystal clear case of bribery.

At least the current AG should have filed an appeal to the Federal Court. The public requires a clear understanding of the laws on bribery and corruption, especially the probative value of the trial judge’s findings that it was a bribe and not a donation.

Such findings, one would think, should not be reversed by the Court of Appeal judges who did not have the benefit of hearing the evidence and assessing the witnesses.

I don’t know why AG Idrus Harun chose to keep mum on why he did not file an appeal. He offers no explanation whatsoever. Keeping quiet shows, he does not care what the public thinks of the matter.

When someone exercises discretionary powers in this fashion, it shows arrogance on his part, even cowardice, or both.

I hope the Court of Appeal judges deciding on Najib’s matter on Dec 8 do not have these attributes. They need to be brave and courageous. They must know the law, which is not difficult, as they have been top judges for many years now.

The difficulty centres on their moral strength and personal integrity to make the right decision, despite pressures and scrutiny from various groups.

Regardless of public sentiment in both the domestic and international realm about Najib, he must be acquitted if it was clear the evidence was not there to convict him. At the same time, if the evidence is there, then he must be convicted regardless of Umno’s imminent ascent to full power in the federal government.

I know judges’ promotions depend a lot on how the top politicians view them but good judges must push aside this consideration if they want to do good for the country and be true to their oath of office.

As for my friends, I will try and get them together for a meal and discuss the verdict. We probably will stay late into the night to discuss the ramifications of the decision on the future of the country.


Zaid Ibrahim is a former law minister