KUALA LUMPUR (June 13): There was a misconception in law when the Sessions Court dismissed Toh Puan Na'imah Abdul Khalid's referral application regarding the charge against her, of failure to declare her assets, the defence team claimed.
Her lawyer Datuk Dr Gurdial Singh Nijar contended on Friday that his client's application contained significant constitutional questions which needed the apex court's determination, but the lower court had failed to appreciate this.
He said that the High Court will have to correct this miscarriage of justice and set aside the Sessions Court's Feb 18 decision. The senior lawyer said this in relation to Na'imah’s revision application against the lower court's decision.
Gurdial argued that his client was called in as a witness to assist the Malaysian Anti-Corruption Commission (MACC)'s investigation against her late husband, Tun Daim Zainuddin. However, she was charged on the technicality of not complying with the authorities.
"Solely due to this alleged non-compliance, a witness assisting in an investigation (who is not the suspect) is now slammed with criminal charges and faces the threat of imprisonment up to a period of five years, as well as a fine up to RM100,000," Gurdial said on Friday.
He added that while they were not disputing MACC's power to investigate a crime, to criminalise a witness assisting in its investigation is "disproportionate to the object that the law seeks to achieve".
He argued that this goes against Article 5 of the Constitution, which includes the right to silence and the right to not incriminate oneself.
This is one of the eight constitutional questions Na'imah wants the Federal Court to determine.
Submissions before High Court judge K Muniandy are slated to continue on July 11.
In February, Sessions Court judge Azura Alwi ruled that there was no merit to Na'imah’s application and dismissed the application. Na'imah then filed a revision application to review this decision.
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.