KUALA LUMPUR (Jan 15): The Sessions Court on Wednesday fixed Feb 18 to deliver its decision on whether to allow Toh Puan Na’imah Abdul Khalid’s application to refer 10 constitutional questions pertaining to her not abiding with the Malaysian Anti-Corruption Commission’s (MACC) notice to declare 12 of her assets to the High Court, or to let the matter remain at the lower court.
Sessions Court judge Azura Alwi fixed the date after hearing submissions from counsel Datuk Gurdial Singh Nijar, who appeared with Nizamuddin Abdul Hamid and Abraham Au for Na’imah, on why it was necessary to revert their questions to the High Court, and then to the Federal Court for determination.
The prosecution, comprising deputy public prosecutors (DPPs) Mohd Fadhli Mohd Zamri, Law Chin How, and led by Datuk Wan Shaharuddin Wan Laden, said the questions do not pass the threshold for the Sessions Court to consider transferring the matter to the High Court.
Na’imah is questioning four provisions — three in the MACC Act, and one from the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA) — to argue the unconstitutionality of the provisions.
Gurdial questioned the constitutionality of Sections 30(5), 36(2) and 62 of the MACC Act as well as Section 32(3) of AMLA, and wants the matter to be brought before the High Court.
Section 30(5) concerns the power of the MACC to examine a person, where the person is expected to abide by the MACC notice to furnish or disclose information to the anti-graft agency and not refuse to provide such data, even if it tends to incriminate the person or his or her spouse.
Section 36(2) is with regards to if a person failing to abide by the notice, as Na’imah is charged with, can then be liable to a maximum jail sentence of five years or a fine not exceeding RM100,000.
Section 62 of the MACC Act says that an accused person is required to submit his or her defence statement with regards to the charge that person is facing, and Section 32(3) of AMLA, which is similar to Section 30(5), is on the requirement for a person to furnish true information as directed by the investigating officer.
Gurdial told Azura that the four provisions affect Na’imah’s rights under Articles 5 and 8 of the Federal Constitution, as they alter the entire fabric of criminal justice and jurisprudence, and violated her rights not to incriminate herself or her spouse by requiring that she provides information even if it is self-incriminatory.
“These four provisions abrogate the rights to an accused person, and what is the effect? It is that it affects her rights to a fair trial due to self-incrimination on her or her spouse,” Gurdial said.
The legislation, he added, affected Na’imah’s constitutional right, and hence, before the start of the trial, it was better that such issues be determined first.
Prosecution: Rights not violated
In reply, Wan Shaharuddin said that initially, Na’imah was merely called up as a witness to the MACC investigations, but due to her not fulfilling the requirement of the notice, she had become an accused person.
However, the DPP said this does not violate her rights, as the provision does not remove the rights of the courts to adjudicate on whether she had committed an offence or otherwise.
“The courts can determine, through the evidence and testimony, whether there is a violation. The provisions do not remove the power of the courts to determine (the innocence or guilt) of a person,” Gurdial said.
DPP Law told the court that the Federal Court had determined that the requirement for an accused person to furnish their defence statement in an MACC charge does not incriminate a person, as decided in the Datuk Seri Najib Razak and Lim Guan Eng case.
He further told the court that if the court were to entertain all such constitutional arguments, it would disrupt the investigation process of such agencies.
“In this case, Na’imah’s statement had been taken, and it is not that her statement had not been taken and there was a violation of her constitutional right. The presumption of innocence is never compromised, as the court — as mentioned by Wan Shaharuddin — still has the power to determine whether there is a prima facie case or otherwise.
“The court can still (independently) make a finding of fact whether to accept or reject the defence statement,” Law added.
Law also said the questions that Gurdial and his legal team had raised seem abstract, hypothetical, and academic; and hence, the application to refer the matter to the High Court should be dismissed, as it does not pass the threshold.
DPP Mohd Fadhli said that prior to this, Na’imah and her husband, the late Tun Daim Zainuddin, had also filed a judicial review to challenge the charge for not abiding with the notice, and this was dismissed by the High Court, and the Court of Appeal had upheld the decision.
Hence, this referral made under the Courts of Judicature Act seems like another attempt to derail the start of the trial, opined Mohd Fadhli.
Following this, Mohd Fadhli asked Azura to fix a date to deliver a decision, and should Na’imah’s application be rejected, to fix a hearing date, as the trial against Na’imah has not yet begun.
Na’imah was charged in January last year under Section 36(2) of the MACC Act for failure to declare her assets.
Among the 12 assets that she did not declare were a Mercedes Benz EQC400 and Mercedes Benz 500 SL AUTO series, seven properties in Kuala Lumpur and one in Penang, and Ilham Tower Sdn Bhd and Ilham Baru Sdn Bhd.
She has claimed trial to the offence, and the court set bail at RM250,000.
Meanwhile, at the High Court here on Wednesday, lawyer Rajesh Nagarajan, appearing for the late Daim, withdrew Daim’s appeal to transfer his not-abiding by the MACC notice case to the High Court.
The former finance minister passed away on Nov 13 last year.