On 20 August, the Segambut Bersatu’s deputy chief, Adam Radlan, was acquitted of 12 corruption charges relating to the Jana Wibawa project, ie five charges of accepting or soliciting bribes under Section 16 of the Malaysian Anti-Corruption Commission Act 2009 (MACC Act) and seven charges of money laundering under Section 4 of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (Amla).
His acquittal came after the prosecution informed the court they had accepted Adam’s letter of representation, in which he made an offer to pay a compound of RM4.1m under Section 92 of Amla.
As a result, the prosecution withdrew all the charges against Adam and sought a discharge not amounting to an acquittal in accordance with Section 254 of the Criminal Procedure Code. However, the court decided to grant him an acquittal.
The Center to Combat Corruption and Cronyism (C4 Center) questions the decision of the prosecution in accepting the payment of this so-called “compound” as a full settlement of all 12 charges against Adam, and choosing to discontinue the entirety of the proceedings against him on that basis.
This decision raises significant concerns about the integrity of Malaysia’s criminal justice system, and points to the potential for abuse of non-trial resolution mechanisms where there is insufficient transparency and unclear guidelines.
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Compounding offences is a method of non-trial resolution where a prosecution is settled out of court. When an offence is compounded, the offender is acquitted and any prosecution against them for that particular offence ceases.
Importantly, an offender who compounds an offence is not convicted of that offence and shall therefore not be subject to the legal implications of a criminal conviction. This is an established procedure set out under various laws, such as the Criminal Procedure Code and Amla.
However, not all offences are compoundable – and therein lies the discrepancy in the prosecution’s decision regarding Adam.
While Section 92(1) of Amla allows for the compounding of “any offence under this Act or under regulations made under this Act”, there is no equivalent provision under the MACC Act.
Section 92 of Amla makes it exceptionally clear that this procedure only applies to offences under Amla. So how can the prosecution use that provision to justify withdrawing the five charges under Section 16 of the MACC Act?
Simply put, they cannot justify it. The decision to drop the five charges of accepting or soliciting bribes was purely an exercise of prosecutorial discretion, unfettered by any clear criteria or guidelines.
The lack of transparency over the details contained within Adam’s letter of representation or the factors that supported the prosecution’s decision to accept the compound offer raises further questions.
Just recently, Prime Minister Anwar Ibrahim said in Parliament that the proposed separation of the offices of the attorney general and the public prosecutor is expected to be presented to the cabinet at the end of August.
This is a positive development, as there has been longstanding criticism of the fact that the attorney general (who is appointed on the binding advice of the prime minister) also holds the office of the public prosecutor – thus creating a line of direct influence from the prime minister to the attorney general, who ultimately directs prosecutions.
Thus, there is an inherent systemic vulnerability to executive influence over decisions to prosecute (or not prosecute) political figures.
However, this structural separation alone cannot be the only solution to the mounting trust deficit against the Malaysian criminal justice system. Indeed, although the government has committed to the separation of these offices, there has not been any discussion on the measures that will be taken to ensure the independence of the new public prosecutor in conducting criminal prosecutions once the separation has been effected.
For too long, prosecutors have relied on the overly broad discretion purportedly conferred on them by Article 145(3) of the Federal Constitution, ie that the attorney general “shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence”.
We hold that this cannot be an acceptable state of affairs in any functioning democracy. Prosecutors must be subject to proportionate and necessary limits on their powers and discretion in order to ensure justice is upheld.
Therefore, C4 Center calls upon the Attorney General’s Chambers to provide more clarity on the perceived discrepancy in the decision to withdraw all charges against Adam, particularly if there were any other grounds that justified withdrawal of the charges under the MACC Act.
Additionally, the Attorney General’s Chambers must draft and publish clear prosecutorial guidelines (similar to the UK code for crown prosecutors) to ensure criminal proceedings are conducted in the interest of justice and fairness. – C4 Center
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