Apologise to and compensate Ehsanuddin after 29 bribery charges dropped

No acquittal for mid-trial discontinuance by prosecution

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Malaysians Against Death Penalty and Torturre (Madpet) calls for just compensation for victims of the failings or incompetence of the police, law enforcement and/or prosecutors.

Noor Ehsanuddin Mohd Harun Narrashi, a then-director of Felda, was on 1 September acquitted of 29 bribery charges after the prosecution withdrew all the charges against him. The court hearing had reportedly started in August 2019 and 24 prosecution witnesses including bank officers and Companies Commission of Malaysia officials gave evidence (Bernama/Edge Markets/Star, 1 September).

It was reported that the Malaysian Anti-Corruption Commission (MACC) had allegedly investigated the defence’s statement under Section 62 of the MACC Act and was satisfied that all the transactions made as stated in the charges were advances that had been fully repaid.

Section 62 of the MACC Act 2009, states:

Once delivery of documents by the prosecution pursuant to section 51A of the Criminal Procedure Code has taken place, the accused shall, before commencement of the trial, deliver the following documents to the prosecution:

(a) a defence statement setting out in general terms the nature of the defence and the matters on which the accused takes issue with the prosecution, with reasons; and

(b) a copy of any document which would be tendered as part of the evidence for the defence.

As such, this statement that the prosecution allegedly only now acted on, resulting in the withdrawal of all 29 charges having regard to “a defence’s statement under Section 62 of the MACC Act”, which ought to have been in their possession since before August 2019, being more than two years ago since the trial commenced is also odd. Such Section 62 statements by the accused should have been considered, investigated and determined before the trial even commences, not two years later.

Apology and compensation for the wrongly accused

Noor Ehsanuddin, his family members and friends would have faced much suffering as the public normally tend to believe that persons charged are more likely guilty than not, as they believe that the police or the MACC and the public prosecutor must have been convinced of guilt with sufficient evidence before they charge anyone in court. The final determinant of guilt would, of course, be the court, as everyone is presumed innocent until tried and convicted by court.

Noor Ehsanuddin would have also expended much monies and time in engaging lawyers and facing these trial(s), that to date have heard the evidence from some 24 prosecution witnesses.

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Worse is the fact that this withdrawal of charges or discontinuance happened when a new Umno prime minister took office, which raises the possibility of political involvement in the administration of justice.

Thus, many may still hold, rightly or wrongly, to the belief that Noor Ehsanuddin is really guilty, and he has been saved allegedly simply by the fact of a change in government.

The failings of the MACC, the police and the public prosecutor that have caused Noor Ehsanuddin such anguish and suffering cannot be swept under the carpet. The persons responsible ought to be investigated, charged and tried, and have action taken against them. To date, neither the government, the public prosecutor or the MACC has yet to apologise and admit their mistake.

In Thailand, we have the Damages For the Injured Person And Compensation and Damages For the Accused in the Criminal Case Act, BE 2544 (2001), where this includes the accused who is entitled to compensation and expenses including in cases where the charge is withdrawn during trial.

Section 20 of this Thai Act, translated to English reads:

An accused who is entitled to receive compensations and expenses under this Act must:

(1) be the accused prosecuted by a public prosecutor;

(2) be taken into custody during trial; and

(3) not be a person who committed an offence upon the clear evidence and the case has been withdrawn during trial or it appears in the final judgment of such case that the fact to the case is conclusive that the accused is not the person who committed the offence or the act of the accused is not an offence.

To not compensate the accused, more so those who have been incarcerated in detention during trial is a gross injustice.

Malaysia must put in place a similar law, so that these victims of the criminal justice system who ultimately are found to be not guilty are justly compensated. At the same time, the relevant authorities, be they the police, the MACC and the public prosecutor (or the deputy public prosecutor) also may need to be penalised accordingly. To adopt a lackadaisical or non-caring attitude to the sufferings of the suspect or accused wrongly detained or subject to trial is simply not acceptable.

Public prosecutor discontinues – but judge with power to discharge or acquit

The public prosecutor does have the power pursuant to Section 254(1) of the Criminal Procedure Code which states:

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(1) At any stage of any trial, before the delivery of judgment, the Public Prosecutor may, if he thinks fit, inform the Court that he will not further prosecute the accused upon the charge and thereupon all proceedings on the charge against the accused shall be stayed and the accused shall be discharged of and from the same.

Section 254(3) goes on to state that “such discharge shall not amount to an acquittal unless the Court so directs”.

If acquitted – never again can the accused be charged for the same offence – an injustice?

Hence, it is clear it was not the public prosecutor that acquitted Noor Ehsanuddin, but the Sessions Court judge, Suzana Hussin.

Article 7(2) of the Federal Constitution provides that:

(2) A person who has been acquitted or convicted of an offence shall not be tried again for the same offence except where the conviction or acquittal has been quashed and a retrial ordered by a court superior to that by which he was acquitted or convicted.

This means once acquitted, a person can never again be charged or be “liable to be tried again for the same offence nor on the same facts for any other offence for which a different charge from the one made against him might have been made” (Section 302 Criminal Procedure Code).

Madpet takes the position that an acquittal should not be granted until the court has evaluated all evidence tendered at the close or prosecution’s case, or at the end of trial.

In cases of a mid-trial discontinuance or withdrawal of charges, the court should only grant a discharge not amounting to an acquittal, as there is always the possibility that new evidence may emerge later proving the guilt of the accused.

A discharge not amounting to an acquittal places the once accused at the same footing as everybody else, with the possibility of being brought to justice if a crime is committed. An acquittal, on the other hand, enables the accused to totally escape justice even if later sufficient evidence of guilt is found.

Independence of magistrates and Session Court judges

An added concern is the independence of the Session Court Judge, who still remains under the Judicial and Legal Services Commission and not directly under the judiciary. Today, one can be a Sessions Court judge, tomorrow a public prosecutor and then a judge, and they come under a commission which the attorney general is part of.

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The then-Chief Justice, Ahmad Fairuz Sheikh Abdul Halim, said that “the judiciary must be completely independent of the executive, and his call for Sessions Court judges and magistrates will come directly under the Chief Justice. This call which also included a doing away of the Judicial and Legal Services Commission was reported in all mainstream media. (See “Break for justice” (New Straits Times, 22 August 2006), ”CJ: Revamp needed for a fully independent judiciary” (theSun), and “Independent judiciary proposed” (The Star).)

This was also in line with a Malaysian Bar resolution passed in 2000, which amongst others expressed “concern about the lack of mechanisms and safeguards to ensure the independence of Magistrates and Sessions Court Judges in the lower courts” and called for “separating the Judicial Services and the Legal Services”.

Currently, the attorney general, who is also the public prosecutor, is ‘boss’ of the prosecutors and also the Session Court judges, and this is not a good thing for the administration of criminal justice and the independence of the judiciary.

Will the prosecution appeal the acquittal of Noor Ehsanuddin for the purposes of getting the appeals court to change it into a discharge not amounting to acquittal?

Madpet thus calls:

  • on the public prosecutor to forthwith apologise to Noor Ehsanuddin and provide him damages and compensation for the sufferings caused
  • on Malaysia to enact a law that will compensate victims of the criminal justice system, especially those who were detained and not charged, and those charged, tried and found not guilty
  • for the independence of magistrates and Sessions Court judges by placing them directly under the judiciary, with the necessary safeguards to ensure independence
  • for an independent public prosecutor, different from the attorney general
  • for the end of granting of acquittals for cases that the prosecution discontinues or applies to withdraw the charges mid-trial. An acquittal should only be granted after the judge has evaluated all evidence and made a decision be it after the close of the prosecution’s case or at the end of trial
  • for no political interference in the administration of justice

Charles Hector issued this statement on behalf of Malaysians Against Death Penalty and Torture

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