More charges dropped! Repeated failures to complete political corruption trials erode public trust

On 27 November, former Prime Minister Najib Razak and former treasury secretary general Mohd Irwan Serigar Abdullah were granted a discharge not amounting to an acquittal for six criminal breach of trust charges involving the misuse of RM6.6bn in government funds.

The High Court granted the discharge after the prosecution failed to hand over several classified documents required to prepare a defence. 

The Center to Combat Corruption and Cronyism (C4 Center) expresses frustration and disappointment at the continued pattern of flawed prosecutions brought against powerful individuals that have resulted in little to no accountability and the loss of public funds.

C4 Center calls out several major issues with the case:

• The need for accountability for procedural failures
• Perceptions of political bias are further amplified
• The Official Secrets Act 1972 (OSA) severely hinders public sector corruption prosecutions

Accountability for procedural failures

Najib Razak and Irwan Serigar were first charged before the Kuala Lumpur Sessions Court on 25 October 2018. The case was then transferred to the High Court two months later.

After six years, the prosecution was unable to complete its case against the accused persons. According to the presiding judge, Justice Muhammad Jamil Hussin, the discharge not amounting to an acquittal was granted on the following grounds:

• The prosecution failed to deliver pre-trial documents as per Section 51A of the Criminal Procedure Code
• The discharge does not preclude the prosecution from reinstating the charges
• There has been an inordinate delay for the case

In this case, the prosecution was unable to furnish 200 sets of documents requested by the defence. Among the reasons given were that the documents were classified under the OSA and were not declassified by the relevant ministries. 

Here, serious questions arise regarding the ability of the Attorney General’s Chambers to carry out its mandate. Does the Attorney General’s Chambers not have sufficient stature to ensure inter-agency cooperation for prosecutions? If not, is this indicative of a major flaw in the effectiveness of the Malaysian criminal justice system?

It cannot be repeated enough that this case alleged the abuse of RM6.6bn in public funds. There is a huge need for clarity over why the case failed to be brought to trial after six years, considering all the effort and financial resources that must have been expended for this purpose.

Frustratingly, this case is one of several similarly flawed criminal prosecutions involving politicians:

• Zahid Hamidi: In the Yayasan Akalbudi case, [the court] granted a discharge not amounting to an acquittal on 47 charges including criminal breach of trust and money laundering, as the prosecution needed to conduct “more thorough and comprehensive investigation” 
• Najib Razak and Arul Kanda: In the 1MDB audit tampering trial, acquittals for corruption-related charges were left unchallenged after the prosecution failed to file their petitions of appeal in time
• Lim Guan Eng: In the case of his purchase of a bungalow below market price, the prosecution applied for a discharge not amounting to an acquittal almost two years after the charge, upon discovering fresh evidence

These repeated missteps severely undermine the public’s trust in the Attorney General’s Chambers’ ability to prosecute complex cases of corruption, especially ones that implicate high-level politicians. 

Perceptions of political bias amplified

Political events make it imperative for the Attorney General’s Chambers to ensure that criminal prosecutions do not end through mere technicalities. The public has voiced outrage at several events involving Najib Razak and his criminal cases, namely:

• The commutation of Najib Razak’s 12-year sentence for the SRC International case by royal pardon
• The potential applicability of a house arrest for this conviction, following the government’s proposed house arrest law
• The prosecution’s failure to appeal Najib’s acquittal in the 1MDB audit-tampering case due to their neglect in filing the petitions of appeal in time, despite being instructed by the Court of Appeal to do so three times

When criminal cases involving politicians are not brought to completion – especially due to technicalities – the public perception that political bias influences the outcome of such cases is strengthened.

These perceptions are further exacerbated by the lack of separation of the attorney general and public prosecutor’s office. It bears repeating that the attorney general (who is appointed on the binding advice of the prime minister) also holds the office of public prosecutor.

In other words, a political appointee, ie the attorney general-cum-public prosecutor, has the discretion to direct criminal prosecutions. Criticism of this structure has been long-standing, as there is an inherent possibility that decisions to prosecute political figures may be influenced by the executive.

OSA a major barrier

This case also highlights a concerning issue for prosecutions involving corruption in the public sector.

The OSA empowers a minister, chief minister or any public officer appointed under the act to classify any document as an official secret. It then becomes a criminal offence for any party to disclose these documents.

According to Deputy Public Prosecutor Saifuddin Hashim Musaimi, the prosecutors were unable to hand over the required documents as they did not have the power to declassify them. This was despite written requests being made to ministries and government departments requesting declassification of the relevant documents.

Worryingly, grand corruption scandals within the public sector often require classified documents as evidence. If such documents are not declassified by their respective ministries, is this a get-out-of-jail card for politicians to escape justice or to protect associates from prosecution? In theory, the OSA could be used to ensure that evidence incriminating politicians in public sector corruption cannot be tendered in court. 

Calls to repeal or severely limit the powers of the OSA have been voiced for decades. If the government is serious about an effective anti-corruption effort, it must immediately address how the OSA can shut down prosecution for public sector corruption.

Rebuild public trust

The granting of a discharge not amounting to an acquittal to Najib Razak and Irwan Serigar in relation to the alleged abuse of RM6.6bn in public funds – on the basis the prosecution was unable to provide documents to the defence – is a major blow to public trust in the Attorney General’s Chambers.

Recently appointed Attorney General Dusuki Mokhtar must take responsibility to rebuild public trust in the legal process and ensure that public interest concerns are taken seriously.

C4 Center urges for the following action:

• The Attorney General’s Chambers must immediately address the issues relating to the procurement of evidence, and if obtained, reinstate the charges
• Expedite the separation of the office of attorney general and public prosecutor, and draft prosecutorial guidelines to steer the conduct of prosecutors in a fair and uniform manner
• Amend the OSA to remove the arbitrary power to classify documents as secret in order to address its detrimental impact to public sector corruption prosecutions

– C4 Center

The views expressed in Aliran's media statements and the NGO statements we have endorsed reflect Aliran's official stand. Views and opinions expressed in other pieces published here do not necessarily reflect Aliran's official position.

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