KUALA LUMPUR (Feb 18): The Sessions Court on Tuesday dismissed Toh Puan Na’imah Abdul Khalid’s application to refer to the High Court several constitutional questions with regard to the ongoing charge against her for failure to declare assets.

Sessions Court judge Azura Alwi ruled that there was no merit to Na’imah’s application, as the court was bound by the Federal Court’s decision in the Public Prosecutor vs Lim Guan Eng case, that an accused person has to tender their statement of defence to the court when the trial commences, as required by Section 62 of the Malaysian Anti-Corruption Commission (MACC) Act 2009.

“Although there are no reasons provided by the apex court, this court is bound by the principle of stare decisis (to stand by things decided by the upper courts).

“With regard to Section 32(3) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA), this court agrees with the prosecution that the application is frivolous and vexatious, as there is no charge faced by the accused, and this has no direct bearing on her charge,” the judge said.

Azura also said that Na’imah’s challenge to the investigation against her would disrupt the investigation, and priority should be given to graft investigations.

“This court finds that there is no merit in the applicant’s application to challenge Section 30(5) of the MACC Act that allegedly violated her constitutional rights. Her rights are protected under the existing law,” the Sessions Court judge said in her brief ruling.

Last month, Na’imah’s lawyers questioned four provisions — three in the MACC Act, and one in AMLA — to argue the unconstitutionality of the provisions.

They questioned the constitutionality of Sections 30(5), 36(2) and 62 of the MACC Act, as well as Section 32(3) of AMLA, and wanted 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 regard to if a person fails to abide by the notice, as Na’imah is charged with, whether that person 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 regard to the charge that person is facing after the delivery of documents by the prosecution to the defence.

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.

Na’imah, whose husband — the late former finance minister Tun Daim Zainuddin — passed away on Nov 13, 2024, had in January last year claimed trial 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.

Following the dismissal of the application, and barring any stay application, Azura fixed nine days for trial, beginning Nov 19 to 21 this year, and Jan 21 to 23, and Feb 3 to 5 next year, as trial dates.

Deputy public prosecutor (DPP) Datuk Wan Shaharuddin Wan Ladin told the court that the prosecution would be calling on 11 witnesses and needed those days to present its case.

“Some of the witnesses would not have witness statements,” the DPP said.

Some of the witnesses are bankers, Road Transport Department and Land and Mines Department officers.

Na’imah, who was represented by Nizamuddin Abdul Hamid, Rajesh Nagarajan, Abraham Au, and Sachpreetraj Singh, also asked for the prosecution to provide facts favourable to the defence to them first.

Nizamuddin said it was not necessary for their client to present her defence statement first, and argued that the prosecution should give facts favourable to them first.

Wan Shaharuddin replied that if the prosecution is asked to give the facts favourable to the defence first, they would not be charging her, as he indicated the prosecution has a strong case.

After arguing back and forth, the parties agreed to try and sort the matter out on May 14, the same date which was fixed for Tan Sri Muhyiddin Yassin’s case.

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