KUALA LUMPUR (Aug 21): The High Court has allowed Toh Puan Na’imah Abdul Khalid’s revision application on the constitutionality of the charge of failure to declare her assets to the Malaysian Anti-Corruption Commission (MACC).
High Court judge K Muniandy in his ruling on Thursday, allowed the application by the widow of former finance minister Tun Daim Zainuddin, as it was not frivolous, but rather contained significant questions which needed to be further deliberated.
"The applicant's challenge is not merely technical or a procedural matter, but strikes at the heart of the balance between the state's power in a criminal investigation by the MACC and the fundamental liberties enshrined in the Federal Constitution.
"The outcome of this case will have a profound impact on the rights of individuals called as witnesses, including the applicant, in MACC investigations, and will further define the limits of state power under our Supreme Law, the Federal Constitution," he said in his ruling.
In gist, Nai’mah wants the Federal Court to make a determination on the portion of the MACC Act which criminalises the failure to comply with investigators. Under the law, one can be imprisoned for up to five years, as well as fined up to RM100,000.
She contends that this is disproportionate to the object that the law seeks to achieve, as a witness — not a suspect — is assisting authorities, yet can be slapped with criminal charges.
She also argues that to charge her as a witness goes against her right to remain silent and the right to not incriminate oneself, among others.
In February this year, Sessions Court judge Azura Alwi had dismissed Nai’mah’s application on the grounds that it lacked merit.
Nai’mah is seeking a review against this decision. Ultimately, she wants the apex court to hear the matter. However, by law, it has to go through the High Court first.
Besides quashing the lower court’s decision, Muniandy also ordered for the matter to now be brought before the High Court.
However, the prosecution has indicated that they have instructions to appeal Thursday’s decision, to prevent the matter from being heard further.
Nai'mah was represented by a team of lawyers led by senior lawyer Datuk Dr Gurdial Singh Nijar. Deputy Public Prosecutors Law Chin How and Mohamad Fadhly Mohd Zamry appeared for the prosecution.
In his decision on Thursday, Muniandy referred to Dr Gurdial's submission that the Section 36 (2) of the MACC Act, which criminalises a witness's non-compliance, was disproportionate.
"The applicant's point about Section 27 of the MACC Act is highly relevant. The proportionality test requires the Court to consider whether a less-intrusive measure could achieve the same objective.
"If the MACC already has the power to punish individuals who give false or misleading information, the question of why a separate mode….is needed to punish a witness who simply fails to provide satisfactory information, becomes a significant constitutional worry," the judge said.
Section 27 of the MACC Act deals with the criminal sanction for someone who provides false information to the anti-graft body.
Speaking to the press following Thursday's decision, Nai'mah said she welcomed the decision, and said that the victory was not just for her, but also for the rule of law.
During case management following the High Court’s decision, Sessions Court judge Azura took note of the decision and said she would furnish the High Court with all notes of proceedings per Thursday’s decision.
The trial dates set previously have also been vacated.
Nai'mah 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.
The trial however has yet to begin, pending several interlocutory applications.