Ex-PM Najib's conscience may be clear, but he has clearly forgotten the lesson of Datuk Harun Idris

by Ganesh Sahathevan


Nothing in the charges show that any of the acts I 

undertook resulted in any benefit to me," 

Mr Najib told a media conference after the court hearing
The Star has reported:

“My conscience is clear,” says Datuk Seri Najib Tun Razak, who described the criminal breach of trust charges filed against him on Thursday (Oct 25) as "dumbfounding".

“The decisions (concerning the money mentioned in the charges) were taken in the interest of the nation. "When you receive certain money, you have to pay it back, otherwise you would be in default. And that could lead to a lapse in the bond market, which is very serious,” said the former premier outside the Kuala Lumpur Courts Complex.

Najib said the charges against him did not make sense..

The former PM seems to have forgotten his history,particularly the history of Datuk Harun Idris.

END

o

JUL

5

The case of Datuk Harun Idris-Useful reference for current times 

Malayan Law Journal Reports/1977/Volume 2/DATUK HAJI HARUN BIN HAJI IDRIS v PUBLICPROSECUTOR - [1977] 2 MLJ 155 - 10 June 197725 pages[1977] 2 MLJ 155

DATUK HAJI HARUN BIN HAJI IDRIS v PUBLIC PROSECUTOR

FC KUALA LUMPURSUFFIAN LP, ALI HAMAN AND WAN SULEIMAN FJJFEDERAL COURT CRIMINAL APPEAL NO 19 OF 197621-25, 28-31 MARCH 1977, 1-4, 6 APRIL 1977, 10 June 1977

Criminal Law and Procedure -- Transfer of case from subordinate court to High Court on certificate of Attorney-General -- Whether legal -- Whether section 418A Criminal Procedure Code ultra vires the Constitution -- Corruption -- Admission of statement to police -- Evidence of other possible offences, wrongly admitted -- Evidence of system -- Evidence Act, 1950, ss 15, 24, 29, 54 -- Criminal Procedure Code (FMS Cap 6), ss 138, 177, 417 and 418A -- Fedederal Constitution, Articles 4(1) and 8 Bribery and Corruption -- Whether accused solicited gratification -- Whether gratification was solicited corruptly -- Gratification solicited as inducement to obtain approval of application for State land -- Whether accused solicited and accepted money corruptly -- Whether accused "agent" -- Prevention of Corruption Act,1961, ss 3, 4 and 9 Constitutional Law -- Legislation giving discretion to Attorney-General to issue certificate for transfer of case from subordinate court to High Court -- Whether contrary to Federal Constitution -- Right to Equality -- Federal Constitution Articles 4(1) and 8 

This was an appeal from the decision of Raja Azlan Shah FJ. ( [1977] 1 MLJ 15).The appellant had beenconvicted on three charges of corruption, in that he as Mentri Besar of Selangor (a) solicited the sum of$250,000 for U.M.N.O. as an inducement to obtain the approval of the Executive Council in respect of anapplication for a piece of State land; (b) being a member of a public body accepted for U.M.N.O. the sum of$25,000 as inducement to obtain such approval and (c) accepted for U.M.N.O. the sum of $225,000 as aninducement to obtain such approval.The learned trial judge sentenced the appellant to one year's imprisonment in respect of the first charge and2 years' imprisonment in respect of each of the second and third charges, all the sentences to runconcurrently. He also ordered payment of the sum of $225,000 to U.M.N.O.Selangor. The appellantappealed.On appeal it was argued (a) that section 418A of the Criminal Procedure Code (under the provisions of whichthe case of the appellant had been transferred from the subordinate court to the High Court for trial) wasinconsistent with Article 8 and therefore unconstitutional and void by virtue of Article 4; (b) that the verdictwas not supported by such evidence as was admissible.

Held:

(1) section 418A of the Criminal Procedure Code is not discriminatory, as although it uses thewords "any particular case" it does not apply specifically to the particular case against theaccused. The section applies to all criminal cases triable in a subordinate court;(2) a preliminary inquiry is not a fundamental right guaranteed by the Constitution; if the accusedhad been tried in the Sessions Court he would not have had the use of depositions before trial;Page 1

and at the trial in the High Court he also enjoyed the chance of not being called upon for hisdefence at the close of the case for the prosecution. By being tried in the High Court he did notrun the risk of greater penalty, for if he had been tried in the Sessions Court he would havebeen liable to the full penalty prescribed by law. In any event the trial in the High Court followedthe same rules of procedure and evidence as would have been followed in the Sessions Courtand so there was no question of the accused being denied a fair and impartial trial. Theaccused also had a right of appeal and a provision for appeal, it has been held in the Indiancases, may cure any defect in the law;(3) even if (contrary to the view of the court) the law may be regarded as discriminatory, there wasreasonable classification in it, there was a nexus between it and the object of the law and therewas a principle or policy in it to guide the Attorney-General in the exercise of his discretionunder section 418A. The Attorney-General when acting under the section 418A will beexpected to transfer to the High Court only cases of unusual difficulty or of unusual importance.Sections 417 and 418A of the Criminal Procedure Code are vehicles for the Attorney-Generalto exercise his power under Article 145(3) of the Federal Constitution and it is for him to judgewhich case is difficult or important enough to be given an early trial after a transfer to the HighCourt under section 418A;(4) it is obvious that the scheme of the amendments to sections 138, 417 and 418A is to expediatetrials, and there is an obvious classification, a classification clearly connected with theunderlying principle of administration of justice that an alleged criminal should be placed on trialas soon as possible after the commission of the crime as the circumstances of the case wouldpermit and this classification cannot be regarded as unreasonable and not having a nexus withthe object of the amendments, namely speedy trial;(5) the statement made by the appellant to the officer of the National Bureau of Investigation wasadmissible by virtue of section 15(1) of the Prevention of Corruption Act, 1961 , and also byvirtue of section 29 of the Evidence Act which provides that if a confession is otherwiseadmissible, that is, if the court is satisfied that it is made voluntarily, it does not becomeinadmissible simply because it was made in answer to questions which he need not haveanswered whatever may have been the form of those questions;(6) evidence relating to cheques paid by the appellant out of the U.M.N.O. Special Fund to hispersonal account was wrongly admitted and should not have been used to discredit theaccused, but in this case there was, apart from that evidence, enough evidence to support thefinding of guilt;(7) evidence of the receipt of other donations received by the appellant was rightly admitted inevidence to rebut the defence that a voluntary and honest donation had been given in thiscase;(8) there was enough evidence to support the conviction as the evidence showed that theappellant did solicit the $250,000 corrupty from the bank as an inducement for the ExecutiveCouncil to approve the bank's application and that he did accept the two sums corruptly;

1977 2 MLJ 155 at 156 

(9) in the circumstances of the case the appellant was an agent within the meaning of section 4(a)of the Prevention of Corruption Act and he was correctly charged on the alternative charges.However in the circumstances it would not be proper or expedient to order the appellant to beconvicted under that section also;(10) the penalty ordered by the learned trial judge should have been ordered to be paid to theFederal Government.

Posted 5th July 2015 by Anonymous