This article first appeared in The Edge Malaysia Weekly on December 25, 2023 - January 7, 2024

By Hafiz Yatim

Malaysia made considerable inroads in its legal tussle with the Sulu heirs in 2023, gaining the upper hand in several court judgments, which puts the sovereign in a much better position to stamp out a controversial award of US$14.9 billion (RM62.59 billion) by an international arbitrator over the so-called heirs’ territorial claims over Sabah.

The Court of Appeal in two countries — the Netherlands and France — have annulled the implementation of the award, dealing a blow to the heirs, who have tried to enforce the arbitrator’s 2022 order by claiming proprietary rights over several Malaysian properties in Europe.

After their arbitration success, the eight Filipinos of the now non-existent Sulu sultanate had attempted to seize Malaysian assets overseas, including those belonging to national oil company Petronas in Luxembourg, as well as Malaysia’s assets in Spain, France and the Netherlands.

Malaysia has been forced to pursue legal action in these jurisdictions to cancel the enforcement of the ruling by the arbitrator Dr Gonzala Stampa.

Minister in the Prime Minister’s Department (Law and Institutional Reforms) Datuk Seri Azalina Othman Said has indicated that Malaysia plans to institute criminal charges in December against Stampa, who ruled in favour of the Sulu heirs in Paris in 2021. If found guilty, he could face a jail term, as Stampa had in fact shifted the seat of arbitration from Madrid, where it began in 2020, to Paris before deciding the award in the so-called Sulu heirs’ favour.

Asian International Arbitration Centre director Datuk Dr Sundra Rajoo had told The Edge that the move by Stampa to shift the arbitration process from Madrid to Paris provided good grounds to challenge the decision. Stampa’s award had placed Malaysia in the unenviable position of having to contest the award wherever the “heirs” had wanted it enforced, and the country has had to endure a difficult and costly exercise from mid-2022 to halt their attempts in four European countries.

“In the light of these developments, the Malaysian government is confident that the ultimate annulment of the purported final award by the Paris Court of Appeal is only a matter of time, and is making every effort to secure that result as quickly as possible,” Azalina said after a decisive victory in the French court in November, which quashed an order authorising a statutory mortgage to be registered against three diplomatic buildings in Paris owned by Malaysia.

“The outcome of the decisions on Nov 6 and 9 ends the Sulu claimants’ efforts to seize Malaysia-linked assets throughout the world. They failed in attempts to touch on assets that belong to Malaysia and we will not compromise [on] illegal and baseless claims.

“Malaysia has been successful in protecting its interests throughout the world, including in France.”

On June 27, the Hague Court of Appeal also dismissed the Sulu claimants’ application to recognise and enforce the final award there. 

By Tarani Palani

In another “first” on the court front, Muar member of parliament (MP) Syed Saddiq is believed to be the first lawmaker in Malaysia aged below 50 to incur a whipping sentence after he was convicted of a white-collar crime.

The politician, who turned 31 in early December, was sentenced to a total of seven years in prison, two strokes of the rotan, and a fine of RM10 million after being found guilty of all four charges of misappropriation of more than RM1 million belonging to the youth wing of his former party, Parti Pribumi Bersatu Malaysia (Bersatu).

In a brief decision on Nov 9, High Court judge Datuk Azhar Abdul Hamid said the former youth and sports minister had failed to raise reasonable doubt on the prosecution’s case. The full grounds of his judgment will be made available at a later date.

A stay of execution was granted, pending the disposal of Syed Saddiq’s appeal, and he remains Muar MP until the appeal process is exhausted.

As the appeal process may go all the way to the apex court, his conviction raises questions over the immediate future of the politician, who became the youngest cabinet minister in Malaysian history in 2018, at the age of 25.

Following the verdict, a rather despondent-looking Syed Saddiq declared that he would be courageous to see the legal process through as “the truth was on his side”.

In his trademark debater-cadence, he told a media conference that he wants to clear his name in the court of law, as any leader interested in moulding a better Malaysia would need to be “whiter than white”.

On the same day, he stepped down from the presidency of the Malaysian United Democratic Alliance (Muda) to allow deputy chairman Amira Aisya Abd Aziz to take over as acting president.

Syed Saddiq’s conviction now looms large over the youth-focused political party, which already faces an uphill task in taking on more established parties.

Muda only has two lawmakers: Syed Saddiq is the sole MP of the party he co-founded; and Amira, as the assemblyperson for the Puteri Wangsa seat in Johor, is the party’s sole state representative.

The young party broke ranks from its allies in the Pakatan Harapan (PH) coalition and contested on its own in the six state elections in August. All 19 Muda candidates lost their deposits after failing to gain at least 12.5% of total votes in their respective constituencies.

The cracks in Muda’s relationship with the unity government came to the fore in September when Syed Saddiq withdrew support for the government to become a “third force” in the opposition.

The party’s move came after it openly expressed dissatisfaction over Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s abrupt discharge not amounting to acquittal (DNAA) in his graft case. Muda has said, however, that it would lend its support to the government’s reform agenda.

In 2024, political observers will be keeping a watch on Syed Saddiq’s appeal against his conviction and sentence, along with Muda’s journey in navigating the political space out of his shadow.

By Hafiz Yatim

Achallenge by Aminah Ahmad and 52 other pensioners over the Pension Adjustment Act 2013 (PAA) during Datuk Seri Najib Razak’s premiership in 2013 was successfully argued at the apex court. Some would say it was only partially successful, since the issue outstanding now is the extent of retrospective adjustments that must be made, as the apex court did not appear to address the issue.

After the case initially failed at the Kuala Lumpur High Court, a five-member Federal Court bench upheld a Court of Appeal decision in declaring the 2013 act that allows a 2% increment annually as less favourable to pensioners and, thus, was null and void.

The decision means that the federal government under Datuk Seri Anwar Ibrahim will have to revert to the pre-2013 pension scheme.

Chief Judge of Malaya Tan Sri Mohamad Zabidin Mohd Diah, who wrote the unanimous decision in a bench led by Court of Appeal president Tan Sri Abang Iskandar Abang Hashim, ruled that the amended Sections 3 and 7 of the PAA, which allows a 2% increment annually, contravene Article 147 of the Federal Constitution, which deals with the protection of pension rights.

Article 147 (1) of the Constitution stipulates that the law applicable to any pension, gratuity or other like allowance (in this Article, referred to as an “award”) granted to a member of any of the public services, or to his widow, children, dependant or personal representatives, shall be that in force on the relevant day or any later law, not less favourable to the person to whom the award is made.

Zabidin said the Court of Appeal was right in restoring the status quo of preserving the original Sections 3 and 6 prior to the 2013 amendment.

“We find no reason to depart from the Court of Appeal judgment. Hence, the apex court finds no merit in the appeal by the government and the Public Services Department (PSD) director general, and the appeal is dismissed,” he ruled.

Following the decision, Anwar, who is also finance minister, announced that pensions for July to December 2023 would be reverted to the pre-2013 mechanism.

Aminah was not satisfied, however, and, in October, her lawyers issued a letter of demand seeking arrears in backdated pensions.

In reply, the PSD said the apex court decision did not stipulate the need to repay the arrears.

“We (the bench), however, decline to make any order of retrospective adjustments to pensions made and for any shortfall to be paid to the appellant on the grounds that it has not been proven that any actual loss has been suffered by the appellant,” PSD pensions division director Datuk Mohd Shaiful Ibrahim said in quoting the Federal Court decision.

Aminah’s lawyer Datuk Baljit Singh Sidhu has indicated that she intends to go to court again over the matter but is undecided over how to go about it — whether she should approach the apex court directly to clarify the issue of arrears sought or otherwise.

As the issue remains unsettled, the matter may see further ventilation next year.

By Timothy Achariam

The government of Malaysia and Goldman Sachs appear to be on course to lock horns next year over the 1MDB global agreement signed under the Muhyiddin Yassin administration in 2020.

In September, Prime Minister Datuk Seri Anwar Ibrahim had expressed dissatisfaction over the pace of the settlement, alluding to payments that Malaysia said Goldman was supposed to make but had not. He raised the possibility of legal action.

The US investment bank appears to have beaten Putrajaya to the punch, however, as it has taken a case against the Malaysian government at the London Court of International Arbitration for “violating its obligation to appropriately credit assets against the guarantee provided by Goldman” in its settlement agreement, and to recover other assets, according to a Reuters report, quoting a spokesperson.

Datuk Seri Johari Abdul Ghani, chairman of the 1MDB Taskforce (Asset Recovery) — an entity established only this year — had deemed the move by Goldman as “premature and without due consideration of necessary prerequisites”.

Johari said Goldman’s suit came as a surprise, as the parties were still in the middle of amicable good faith discussions, following four extensions granted by the government to Goldman to settle a dispute involving an interim payment of US$250 million that it maintains the bank ought to make to Malaysia.

As part of the 2020 settlement, Goldman made an initial US$2.5 billion payment while guaranteeing the return of US$1.4 billion of 1MDB assets seized by authorities around the world, in exchange for Malaysia dropping charges against the bank.

Goldman was also required to make an interim payment of US$250 million if Malaysia did not receive at least US$500 million in assets and proceeds by August 2022, according to the bank. The two sides have been locked in a disagreement over the matter, according to the bank’s public filings.

An Aug 18, 2022, accounting provided by the government of Malaysia to Goldman showed that it had not recovered US$500 million and, therefore, Malaysia is entitled to the interim payment of US$250 million. This was disputed by Goldman.

In a statement following news reports of Goldman’s legal proceedings, Johari explained about the four extensions in detail.

He said the government had granted a three-month extension sought by Goldman on Sept 8, 2022, that expired on Dec 8, 2022.

This was followed by another three-month extension that expired on Feb 8, 2023, and then a third, which expired on May 8, 2023. The last extension was given on Aug 8, 2023, and expired on Nov 8, 2023.

According to Johari, the government of Malaysia can commence arbitration proceedings in respect of the interim payment of US$250 million because a settlement was not reached by the deadline. There has been no comment by either side even though the deadline has passed.

In an interview with Bloomberg in September, commenting on the agreement with Goldman, Anwar had said: “They are taking us for granted. They think that we’ll not proceed with a lawsuit … there’s nothing for us to lose except for the legal fees, which a government can manage. But it’s also the integrity of Goldman Sachs that’s in question.”

Legal firms raided

In October, the Malaysian Anti-Corruption Commission (MACC) raided two law firms: that of lawyer Rosli Dahlan (Rosli Dahlan Saravana Partnership); and that of lawyer Chetan Jethwani (Chetan Jethwani & Co).

The raids were reported to be related to the 2020 government settlement with Goldman.

The MACC took the two firms to court to compel them to produce documents linked to settlement agreements between the government and Goldman and the government and AmBank.

MACC said it was seeking the documents under the firms’ “custody, care and control” to aid in the agency’s investigations of allegations that Rosli and Chetan were involved in bribery and money laundering in Goldman’s settlement with Malaysia in 2020.

The lawyers have applied to the High Court to strike out the suit brought by the MACC against them, and the proceedings will be heard in 2024.

By Tarani Palani

As the 1Malaysia Development Bhd (1MDB)-Tanore trial enters its sixth year in 2024, the trial is finally inching closer to the end of the prosecution’s case against Datuk Seri Najib Razak and a decision if his defence will be called. The highlights during the more than 40 proceeding days this year, which are set to spill over into next year, include the continued testimony of former central bank governor Tan Sri Dr Zeti Akhtar Aziz and the impact of 1MDB’s former legal counsel Jasmine Loo’s surprise “return”. Much of the proceedings during the year were taken up by witnesses testifying on the money trail tracing 1MDB funds to Najib’s personal bank accounts in Ambank.

Zeti takes the stand

In a much-anticipated testimony, Zeti, who was Bank Negara governor from 2000 to 2016, which includes the period when billions of ringgit were stolen from 1MDB, defended the central bank’s actions, but dropped several bombshells along the way.

Throwing a spotlight on Najib, Zeti testified that Najib, who also then finance minister, had been warned on several occasions about 1MDB’s mounting debts, which could have severely jeopardise the country’s sovereign ratings.

Yet, he took no action. She explained that 1MDB topped the agenda of a Bank Negara Financial Stability Committee (FSC) meeting in 2013 with Najib in attendance; even then, no action was taken.

Similarly, she had sent two more letters on the matter in 2014 and 2015 respectively, but again there was no response as those too fell on deaf ears.

Zeti, 76, testified that Najib also asked her to clear his name over the billions of ringgit in his account but, having no knowledge of his accounts, she had refused. At a meeting with Najib, Zeti said, he had accepted her decision but, soon after, she received a call from one of his cabinet ministers whom she did not name, urging her to clear Najib’s name.

Zeti said she stood by her earlier response that she could not do as requested, as she had no knowledge of the goings-on in Najib’s accounts.

There were fractious moments during cross-examination by lead defence counsel Tan Sri Shafee Abdullah, especially when he questioned her on her family’s alleged closeness to notorious fugitive financier Low Taek Jho, and the purported flow of 1MDB funds into bank accounts belonging to members of her family underscoring the relationship with Low. Zeti denied that Low was close to her or her family or that they had accepted any money from him or his associates.

Zeti is expected to take the stand again next year as Shafee has yet to conclude his cross-examination. 

Labyrinthine money trail

Both Bank Negara Malaysia analyst Adam Ariff Mohd Roslan and investigating officer (IO) Foo Wei Min took to the stand to testify on the elaborate money trail of how 1MDB monies ended in Najib’s personal accounts from 2011 to 2014.

Adam testified on his meticulous 76-page money-trail report detailing how the former PM received RM2.28 billion — the quantum at the crux of the 25 charges Najib faces in this trial.

Assistant Commissioner of Police (ACP) Foo testified to how he separated the “clean” funds in Najib’s account from the ill-gotten monies from the “Tanore phase” of the 1MDB scam.

Adam was candid on the stand, admitting that there were about RM5 million that went into Najib’s account in late 2014 that came from an unknown source and are not accounted for. This prompted the prosecution to make amendments to three of the 25 charges against Najib.

The defence’s objection to the amendments were dismissed by the court, which ruled that the changes concerned only figures, and that the prosecution’s case and narrative remains unaltered.

The defence had raised the possibility that these monies could have commingled with existing clean monies in the accounts.

What of Jasmine Loo?

Given Loo’s proximity to Low and her central role in the financial scandal, the former attorney’s surrender to the police in Malaysia in July generated a great deal of buzz.

In September, the police said Loo, who had been at large since 2018, helped identify assets worth more than RM93.2 million purchased using 1MDB monies. She is still being investigated by other agencies over 1MDB.

During proceedings, Shafee described Loo as “a witness of importance”, whose testimony “could either bury or be favourable to Najib”.

The prosecution has yet to affirm whether Loo, 50, will be called upon to take the stand.

Trial judge Datuk Collin Lawrence Sequerah disclosed that he and Loo were partners in Messrs Zain & Co more than a decade ago while the Court of Appeal (COA) judge was practising law.

This prompted the defence to apply to disqualify the judge, which was subsequently dismissed, following lengthy submissions. The court ruled that Najib failed to show that there was a real danger of bias, adding that past associations such as employment history alone are insufficient indications of that bias. The defence is appealing this decision.

Sri Ram’s wit and directness missed in proceedings

Also of note this year is the passing of senior public prosecutor Datuk Seri Gopal Sri Ram — the former apex court judge who had helmed many of the 1MDB criminal cases since 2018.

The 79-year-old legal savant was said to have passed away following complications from a lung infection on Jan 29.

Although Sri Ram’s quick wit and directness are missed in the court room, the prosecution team under the leadership of Kamal Baharin Omar, Ahmad Akram Gharib and Mohamad Mustafa P Kunyalam is very much holding its own.

By Timothy Achariam

After a drawn-out battle that spanned more than half a decade, the Federal Court in a landmark decision in April ruled that obvious conflict of interest decisions by the authorities in the Taman Rimba Kiara development project were considered null and void. The apex court upheld the Court of Appeal’s (CoA) decision to quash a development order issued by Kuala Lumpur City Hall (DBKL) for the project.

In a unanimous decision by a three-judge bench led by Chief Judge of Malaya Datuk Mohamad Zabidin Mohd Diah, the court surmised there were no merits in the appeal brought by DBKL, and ruled that there was clear conflict of interest in that the applicant and the approving body were one and the same.

The other members of the bench were judges Datuk Nallini Pathmanathan and Datuk Rhodzariah Bujang.

The appeal to the Federal Court pertained to a January 2021 decision by the CoA that overturned an earlier High Court decision in November 2018 rejecting a joint bid by Taman Tun Dr Ismail (TTDI) residents for a judicial review of a conditional planning permission and development order issued by DBKL. The residents had also sought an order of certiorari to quash DBKL’s development order to Memang Perkasa Sdn Bhd allowing luxury service apartments to be built in Taman Rimba Kiara. Memang Perkasa is a subsidiary of Bursa-listed Malton Bhd.

The development order issued by DBKL in 2017 was for the construction of eight blocks of luxury serviced apartments of up to 52 storeys, one block of affordable housing and an eight-storey podium car park.

The proposed project was first introduced during Datuk Seri Tengku Adnan Tengku Mansor’s tenure as federal territories minister in 2016. TTDI’s resident associations had objected to the development, claiming that it would significantly increase the density of TTDI and irreversibly degrade Taman Rimba Kiara as one of the few green lungs in the city.

To develop the land, Taman Rimba Kiara landowner Yayasan Wilayah Persekutuan (YWP) had entered into a joint venture (JV) with Memang Perkasa. Under the JV, Memang Perkasa was to pay RM160 million to YWP in stages. The YWP-Memang Perkasa JV was to obtain DBKL approval to develop Taman Rimba Kiara.

The apex court’s judgement, read by Nallini, ordered that the development order be set aside because the mayor was a trustee of YWP.

“We concluded that there was a conflict of interest and/or bias afflicting the decision of the Datuk Bandar (mayor), which is a separate and independent ground of challenge. It therefore follows that on this ground alone, the impugned development order is void and ought to be set aside.

“The mayor, therefore, wore three hats in three capacities: the mayor was part of the entity that approved the subject land’s alienation, the mayor was part of the applicant for planning permission; that is, Yayasan Wilayah Persekutuan as he was a member of the board of trustees, and the mayor was also the entity that granted the impugned development order,” she emphasised.

Notwithstanding the legal victory, there is still much work to be done. Resident associations involved in the case have been urging authorities to help the 100 longhouse families secure permanent housing and to keep the green lung as a city park. The residents are seeking the construction of 200 townhouses and have submitted a memorandum to Prime Minister Datuk Seri Anwar Ibrahim via Segambut member of parliament Hannah Yeoh.

By Tarani Palani

Was it an unwitting omission or wilful neglect? That was the question being asked, given the prosecution’s laxity in abiding by the appeal process after the High Court found former premier Datuk Seri Najib Razak and former 1Malaysia Development Bhd (1MDB) president Arul Kanda Kandasamy not guilty in the 1MDB audit report tampering case.

In September, the case officially came to a close as an unamused appellate court struck out the prosecution’s last-minute appeal to the court to overlook its blunder over the filing deadline.

In a move that raised many eyebrows, the prosecution had not only failed to file its petition of appeal almost two months after the deadline, but it also made no application for an extension of time. This was in spite of the fact that it had filed the notice of appeal earlier on March 9.

A three-member Court of Appeal (CoA) panel led by Datuk Hadhariah Syed Ismail struck off the prosecution’s appeal but not before giving the prosecution an earful that everyone must adhere to the law regardless of the individuals involved.

Moreover, the court pointed out that the prosecution had been reminded on three previous occasions to file the necessary applications but had failed to adhere to instructions. In acting as it did, the court refused to exercise its discretion to allow an extension of time for the prosecution to file its petition of appeal.

The prosecution, led by deputy public prosecutor Datuk Yusaini Amer Abdul Karim in explaining the delay, said this was a public interest case, where the prosecution needed time to really study the documents.

He said the latest instructions to file the petition were from the “highest management of the Attorney General’s Chambers” (AGC), perhaps referring to newly appointed attorney general Datuk Ahmad Terrirudin Mohd Salleh, whose tenure began just days before, on Sept 6.

Both defence counsel Datuk N Sivananthan appearing for Arul Kanda and Najib’s counsel Tan Sri Muhammad Shafee Abdullah sternly objected to prolonging the case any further and asked for the appeals to be struck off.

Earlier in March, Najib and Arul Kanda were released from the case after trial judge Mohamed Zaini Mazlan ruled that the prosecution had failed to prove a prima facie case against Najib, 70, and acquitted him of the abuse of power charges.

Arul Kanda, 47, charged with abetting Najib, was also discharged and acquitted. The former 1MDB president was also granted a certificate of indemnity under Section 63(3) of the Malaysian Anti-Corruption Commission (MACC) Act — the first case in which a co-accused was offered a certificate of indemnity under this section of the act.

In his grounds of judgment, Mohamed Zaini, who is now a CoA judge, said that after giving maximum evaluation at the end of the prosecution’s case, he found no evidence to suggest or prove that Najib explicitly directed the amendments to the audit reports to exonerate him from any civil or criminal liability.

Najib was charged with abuse of power as a public officer in his capacity as the then prime minister and finance minister in altering the 1MDB audit report prepared by the National Audit Department, which was to be tabled to the Public Accounts Committee in March 2016.

By Hafiz Yatim

Datuk Seri Najib Razak’s final legal bid for a review of his conviction and sentence in the SRC International Sdn Bhd case in the earlier part of the year attracted intense attention.

Ultimately, a five-member Federal Court bench led by Chief Judge of Sabah and Sarawak Tan Sri Abdul Rahman Sebli dismissed Najib’s review of the Aug 23, 2022, decision by a previous apex bench led by Chief Justice Tun Tengku Maimun Tuan Mat to uphold his conviction, sentence of 12 years’ jail and RM210 million fine.

In the 4-1 majority decision, Abdul Rahman was the sole dissenting judge, opining that the former premier’s appeal should be reheard.

His fellow bench members, judges Datuk Vernon Ong Lam Kiat — who wrote the majority decision — Datuk Rhodzhariah Bujang, Datuk Nordin Hassan and Datuk Abu Bakar Jais were not persuaded by Najib’s arguments.

Ong, who retired several months later, and the other judges were not moved by the grounds laid out by Najib’s counsel Tan Sri Muhammad Shafee Abdullah, mainly that he was denied the right to adduce further evidence against trial judge Datuk Mohd Nazlan Mohd Ghazali or that the non-adjournment sought by then counsel Datuk Hisyam Teh Poh Teik had resulted in a breach of natural justice.

They were also of the view that the previous court’s decision not to allow Hisyam to discharge himself or the non-recusal of Tengku Maimun had been detrimental to Najib’s case.

Ong said Najib was the author of his own misfortune as he had changed lawyers a month before the scheduled hearing of his appeal in August last year, even though the dates had been set much earlier.

He further ruled there was no miscarriage of justice that warranted appellate intervention under Rule 137 of the Federal Court rules.

“The earlier panel has exercised their discretion judiciously, as there was no denial of Najib’s rights or the claim of breach of natural justice. Thus, there is no merit for a review,” the judge said.

Ong also said the earlier bench was right in directing Hisyam to continue conducting the appeal and not to discharge himself.

He stressed that the court must be allowed to arrange its affairs and be consistent on the discharge of counsel, as to always change such a requirement would be bad policy for the court and leave the law in a state of uncertainty.

He added that the challenge against the decision by Tengku Maimun not to recuse herself was based on the “real danger of bias” test. He pointed out that her decision had been supported by other bench members, who wrote their decisions separately.

“There is no question of a quorum failure as alleged [due to the non-recusal], [it] does not hold. Any judge can hear any recusal made against him or her, and this was earlier decided by this bench, following the defence challenge over Justice Abu Bakar’s presence in this sitting. Thus, there is no merit for a review of that decision,” the apex court judge added.

With the affirmation of the decision, Najib has to continue to serve his jail sentence, even as he faces ongoing trials, including the 1Malaysia Development Bhd-Tanore case, the International Petroleum Investment Corporation settlement and a second SRC case.

By Timothy Achariam

Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi’s abrupt discharge not amounting to an acquittal (DNAA) of all 47 charges against him while his criminal trial was still ongoing in September did not reflect well on Prime Minister Datuk Seri Anwar Ibrahim.

Notwithstanding his denials, the perception was that Anwar had intervened to help his staunch political ally, who heads Umno.

Zahid was facing charges of dishonest misappropriation of RM31 million belonging to his charitable foundation, Yayasan Akalbudi. His DNAA was to be the last act of outgoing attorney-general (AG) Tan Sri Idrus Harun who had instructed his officers to apply for the DNAA.

Court of Appeal judge Datuk Collin Lawrence Sequerah, sitting as a High Court judge, granted the DNAA as the prosecution said it would not be carrying on with the case, which was already into the defence stage with 15 of Zahid’s witnesses having taken the stand, including him.

Sequerah, having earlier found that a prima facie case had been made out by the prosecution, was quick to point out the waste of taxpayers’ monies and the court’s time when granting the DNAA.

Anwar’s political rivals and the general public were outraged at the DNAA, with many placing the blame squarely at the feet of Anwar for ostensibly pandering to Zahid.

Anwar’s unity government needs the continued backing of Zahid as Umno president and head of Barisan Nasional, as the coalition has 30 seats in parliament, and the prime minister has repeatedly assured that his administration is stable.

Deputy public prosecutor (DPP) Datuk Mohd Dusuki Mokhtar, in applying for the DNAA, put forth 11 main reasons, one being that the Malaysian Anti-Corruption Commission (MACC) had informed the Attorney General’s Chambers (AGC) that it needed to carry out further investigations into the charges.

The MACC’s further action appears to have been prompted by two representation letters dated Dec 8, 2022, and Jan 25, 2023, that were sent by Zahid to the AGC seeking a review of his charges. The first of the two letters came within days of Zahid’s appointment as deputy prime minister after the 15th general election in November last year.

On Feb 28 and March 7, four more representation letters were sent, which raised issues and evidence that ostensibly required the MACC to investigate further.

The letters of representation to the AGC also contended that MACC’s investigations into Zahid were done in haste, and were careless and incomplete.

Yet another reason was Zahid’s contention of selective prosecution by the previous government and the AG’s view that the allegation needed to be investigated.

Zahid’s lawyers, not happy with the DNAA, had pressed the court to grant him a full acquittal.

Some quarters had suspected that a DNAA was in the offing when DPP Datuk Raja Rozela Raja Toran, who was the lead prosecutor in Zahid’s case, rather inexplicably asked for early retirement in the middle of the trial, ostensibly in July or August.

And there may have been other signs as after Zahid became deputy prime minister in November 2022, the pace of his trial slowed, with postponements on many occasions as the prosecution sought more time for the AG to study his representations.

Of the 47 charges against Zahid, 27 were for money laundering (RM72 million), eight for bribery (accepting RM21.25 million) and 12 for criminal breach of trust (RM31 million in charity funds).

While he is discharged for now, the prosecution can still choose to charge him again, though it remains to be seen if that will materialise.

By Tarani Palani

It was not great optics for the administration of Datuk Seri Anwar Ibrahim when within the same week that his Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi was given a discharge not amounting to an acquittal (DNAA) in his criminal trial, fellow coalition lawmaker Datuk Seri Bung Moktar Radin and his wife Datin Seri Zizie Izette Abdul Samad were also acquitted of their graft charges.

However, the difference between both cases is that the prosecution in Bung Moktar’s corruption case — involving RM2.8 million related to a Felcra Bhd investment — has already filed a notice of appeal.

Bung Moktar and Zizie walked free in early September without having to enter their defence after the High Court allowed their revision application challenging Sessions Court judge Rozina Ayob’s earlier ruling that the prosecution had established a prima facie case against the Sabah Barisan Nasional (BN) chairman and his wife.

High Court judge Datuk Azhar Abdul Hamid ruled that this was a fit and proper case for the court to exercise its revisionary power under the Criminal Procedure Code (CPC) and acquitted and discharged the duo.

In his decision, Azhar said there is no evidence that Public Mutual investment agent Madhi Abdul Hamid and Unit Amanah consultant Norhaili Ahmad Mokhtar — the two star witnesses in the trial — had given money to the Kinabatangan member of parliament (MP) through his wife.

In May 2019, Bung Moktar, who was then the non-executive chairman of Felcra, was charged with accepting bribes of RM2.2 million and RM262,500 from Madhi and RM337,500 from Norhaili through Zizie as gratification to obtain Felcra’s approval to make a RM150 million investment in the Public Mutual unit trust. Zizie faced three abetment charges for the offences committed in 2015.

Both the prosecution witnesses had given evidence in court that contradicted their statements given to the Malaysian Anti-Corruption Commission (MACC). Addressing this in her decision, the Sessions Court judge had said that she looked at the evidence before her in its totality.

Separately, there were also a handful of criminal cases involving prominent Umno politicians whose cases were dropped.

In early December last year, former Lembaga Tabung Haji chairman Datuk Seri Abdul Azeez Abdul Rahim was fully acquitted of three graft and six money-laundering charges in relation to road projects in Perak and Kedah.

Following public criticism, the then attorney-general (AG) Tan Sri Idrus Harun released a statement stating that since Abdul Azeez was charged at the Sessions Court in January 2019, the former Baling MP had made several representations to the Attorney General’s Chambers (AGC) through his lawyers for the case to be retracted and all charges to be dropped.

He added that information in two letters of representation in March 2022 prompted further probe by the MACC, where there were no “evidence or facts” found that favoured the prosecution’s case.

Another case involved Umno veteran Tan Sri Shahrir Samad. In early January, the prosecution informed the court that it would not be continuing its case against Shahrir who was on trial for failing to declare to the Inland Revenue Board (IRB) the RM1 million that he had received from former prime minister Datuk Seri Najib Razak.

The former Federal Land Development Authority (FELDA) chairman was discharged and acquitted, which means he cannot be charged again for the same offence.

Although the prosecution had asked for a DNAA, the defence argued for a full acquittal as Shahrir’s lawyers highlighted the testimony of the investigation officer (IO) who had said on the stand that Shahrir was charged with the permission of then AG Tan Sri Tommy Thomas, even when the investigation papers were still incomplete.

By Timothy Achariam

In politics, where nothing much surprises, the striking-out of all four corruption charges amounting to RM232.5 million against former prime minister Tan Sri Muhyiddin Yassin came as a surprise to many, including his own faction. Three money-laundering charges against him have yet to be heard, but he has applied to have them dropped.

On March 10, the politician was hauled to the Kuala Lumpur Sessions court, where he was charged with obtaining bribes worth RM232.5 million from corporate entities for his party, Parti Pribumi Bersatu Malaysia (Bersatu).

The charges stated that the bribes were from Bukhary Equity Sdn Bhd, Nepturis Sdn Bhd, Mamfor Sdn Bhd and Datuk Azman Yusoff, and that the amounts were deposited into Bersatu’s bank accounts.

Muhyiddin is also facing three money-laundering charges for receiving proceeds from illegal activities amounting to RM200 million, out of the RM232.5 million, from Bukhary Equity. He has maintained his innocence and claims that the charges are a form of political persecution.

He had sought to strike out the charges on the grounds that they were “defective”, an abuse of process and in breach of Section 154 of the Criminal Procedure Code, as they allegedly lacked particulars as to how he had abused his position or the PM’s office for the purpose of gratification.

As such, the Pagoh member of parliament claimed that his constitutional rights regarding the liberty of a person was violated, as the failure to particularise how he had allegedly committed these abuses of power resulted in his inability to give meaningful instructions to his lawyers to prepare his defence or representation.

On Aug 15, High Court Judge Datuk Muhammad Jamil Hussin agreed with Muhyiddin’s lawyers and struck out the four charges against him. “The charges are defective, and I am using my power to strike out the charges, as there was an abuse of process,” the judge said. He explained in his decision that the four charges linked to the Jana Wibawa programme were defective, and not in accordance with the Criminal Procedure Code or failed to follow the Malaysian Anti-Corruption Commission (MACC) Act 2009, because they did not stipulate how the alleged offences were committed, whether Muhyiddin sat in a meeting or influenced a decision to allegedly receive the RM232.5 million he was charged with taking.

The prosecution had indicated that the details would come out during the course of the trial, but Jamil indicated that would not do.

“This creates a confusion, as there is no proper notice of what he is accused with — the way the offences were committed. This resulted in a mistake and failure in proper procedures. The court finds the charges to be defective, and this court considers this an abuse of the court process,” he said and ordered that Muhyiddin be discharged and acquitted of the four abuse of power charges, which were set to be tried in the Kuala Lumpur Sessions Court.

However, Jamil did not make a ruling over the three money-laundering charges, as Muhyiddin’s defence team did not make any relevant application.

Muhyiddin has already applied to the Sessions Court to drop the three pending charges, pointing out that, given his acquittal of the four previous charges as the predicate offences, the three pending charges should also collapse.

The application to strike out the three charges will most likely be granted a stay of proceedings, pending an appeal against the acquittal of Muhyiddin by the prosecution at the Court of Appeal.

The Court of Appeal has fixed Feb 28 and 29, 2024, to hear the prosecution’s appeal against the acquittal.

By Timothy Achariam

Serving a 12-year prison sentence having been found guilty in the SRC International case, former prime minister Datuk Seri Najib Razak was fighting for a tax break. It was not to be.

In a unanimous decision, the Federal Court dismissed appeals by Najib and his son Datuk Nazifuddin Najib against summary judgments compelling the former to pay RM1.69 billion in tax arrears to the Inland Revenue Board (IRB), and the latter, RM37.64 million.

The apex court’s five judge bench upheld the Court of Appeal (CoA) and High Court’s decisions, which ruled that the pair must pay the amounts owed to the government. The bench indicated that like every other taxpayer, the pair could “pay first, dispute later” with the IRB.

Judge Tan Sri Nallini Pathmanathan pointed out that should the duo be successful in their appeal, it would open a “floodgate” of cases by those also disputing the taxes to be paid, which would put the country at a “standstill”.

“The country relies on taxes to run. There are many poor people who rely on taxes as a means of income redistribution from the wealthy that is given to the poor. If every taxpayer comes to court to have a full trial on the amount assessed, the country would come to a standstill, the B40 will be wiped out as there would be no money,” Nallini said.

“Have we looked at it (this case) from the viewpoint of the country, instead of looking at it from the viewpoint of the taxpayer who says his rights have been impinged?” she asked in response to the argument made by Najib’s lawyer Tan Sri Shafee Abdullah that his client’s rights were impinged.

In their pleadings, Najib and Nazifuddin had claimed that they were being treated unfairly and that this contravened Article 8 of the Federal Constitution, which states that all persons are equal before the law and entitled to the equal protection of the law.

Their claim of the government’s case falling foul of Article 5(1), which states that no person shall be deprived of his life or personal liberty save in accordance with law, was also shot down.

In reading out the judgment, Nallini emphasised that Najib and Nazifuddin were not singled out for discriminatory treatment as she said that the collection of tax is done in the same manner for all citizens of the nation.

“The appellants (Najib and son) have not been singled out for discriminatory treatment nor treated in a manner not provided for in the Income Tax Act (ITA). There is no evidential basis on record to support such a contention. Accordingly, there is no basis for the contention that there has been a contravention of Article 8 of the Federal Constitution.”

She said that the duo could “pay first, dispute later” with the IRB, noting they could also come to an arrangement or even pay monthly instalments.

Failure to pay the tax arrears or to strike an arrangement with the tax man may result in bankruptcy proceedings against them.

On July 22, 2020, the High Court had entered summary judgment against Najib and Nazifuddin, ordering them to pay the said amounts.

The decision was upheld by the CoA on Oct 21, 2021, but it granted a stay of the summary judgment, pending an appeal at the Federal Court.

The summary judgment that was awarded to the IRB in this case follows the High Court ruling that the defendants have no triable issues with regard to their defence, and if the matter were to proceed to a full trial, it would have the effect of delaying a judgment entered against the defendants.

By Timothy Achariam

The controversial National Feedlot Centre project (NFC) — yet another one of Malaysia’s failed projects — was put to rest in October when the court ruled that the government was substantially to blame for a project that delivered little, if anything, despite the vast amounts of money spent.

In ruling against the government in its suit against National Feedlot Corp Sdn Bhd (NFCorp), led by its chairman Datuk Seri Dr Mohamad Salleh Ismail and his children — CEO Wan Shahinur Izran and directors Wan Shahinur Izmir and Wan Izzana Fatimah Zabedah — the court held that Putrajaya was the main reason for the failure of the project. Mohamad Salleh is the husband of former Wanita Umno president Tan Sri Shahrizat Abdul Jalil.

In his decision, High Court Judicial Commissioner Anand Ponnudorai said the government had failed to prove wrongful use of a RM250 million loan that it had provided in 2006, prompting Salleh to say the decision had “exonerated” him and his family.

At its inception almost two decades ago, NFC had aspired to establish a national integrated beef system and supply chain involving both downstream and upstream activities. Central to NFC were the Salleh family, who were running NFCorp.

The project became a source of controversy, as the government funding of RM250 million to NFC was partially spent on high-end properties even though the funds were to be used to develop the cattle industry in Malaysia to ensure ample supply and to reduce the need for imports.

On its part, the government was to build an Export Quality Abbatoir (EQA), according to the agreement between the two parties.

In 2019, the government brought a lawsuit against the family and six companies owned by the family, to recover the RM250 million with interest.

In describing the case as a “debacle”, Ponnudorai ruled that there was no wrongful use of the loan sum and no breach of fiduciary duties by the 11 defendants. He further added that purchases of land in Gemas, Negeri Sembilan, Putrajaya and One Menerung in Bangsar were not in breach of the Loan Facility Agreement (LFA), as there were clauses in the agreement that allowed for purchase of property.

In his judgment, he said the government had also approved the purchase of the said land.

“As such, quite apart from the fact that some purchases of the landed properties were approved by the government, it is clear that purchase of landed properties [was] allowed and, in my view, the mere purchase of landed properties cannot, of itself, constitute a wrongful use of the loan sum.”

The properties in question were two lots in Putrajaya, two lots in One Menerung, Bangsar, and an office lot in Mont Kiara worth a cumulative RM18.35 million. The Salleh family claimed during the course of the trial that the properties were bought as investments, as the loan money was sitting idle and not being utilised because the government had not built the EQA for cattle production.

The judicial commissioner also found that the government had breached the Implementation Agreement (IA) between Salleh and the Ministry of Agriculture and Agro-based Industry by failing to deliver the EQA, which would have enabled Salleh to commence production fully and that would in turn have allowed for repayments of the loan.

Ponnudorai also said Salleh had paid loan instalments for 2012 and 2013, even though the EQA had not been delivered. He added that the government’s contention that the Salleh family had defaulted in loan payments was without merit.

Like the proverbial chicken and egg situation, the focal issue of the case was whether Salleh would have been able to meet production even if the government had built an EQA. The government claimed that NFCorp could not have met the production targets, whereas Salleh claimed otherwise.

Ponnudorai said that under the agreements, the government was obligated to provide the EQA and other matters.

“While the plaintiff (government) did indeed provide some infrastructure, it was nonetheless an express and critical obligation on the part of the plaintiff to construct the EQA,” he said adding that because it failed to do it, this was a “major contributing factor towards the failure of the said project”.

Government awarded RM33.74 mil, NFC terminated

After a trial that stretched on for almost three years, the government came out with a paltry RM33.74 million as ruled by Ponnudorai, who said this was the unused sum of the initial RM250 million loan. He also decided that the government was entitled to RM86.9 million that it had previously seized from the defendants, which is currently held in escrow by the accountant-general.

In addition, he ordered the defendants to return land in Gemas, Negeri Sembilan, and Putrajaya as well as properties at One Menerung, Bangsar, to the government, which is now the beneficial owner of the properties.

The sum awarded to the government pales in comparison to what it was claiming. At the beginning of the trial, the government had sought RM253.62 million, which included accrued annual interest of 2% from May 1, 2019.

The case is effectively over, as the time frame given by the court to file a motion for appeal at the Court of Appeal has lapsed without action by either party.

Salleh and the others were accused of misappropriating RM118 million of the RM250 million loan granted to NFCorp. Although the parties negotiated for an out-of-court settlement, they could not find common ground.

The trial began in February 2020 and the government closed its case on March 17, 2021. The trial had been put on hold several times in 2022, as the parties were in the process of coming to a settlement. Salleh and his children, among others, had taken the stand to testify.

By Tarani Palani

Following a six-year legal battle including the reversal of two acquittals, 28-year-old clerk Sam Ke Ting finally walked free after the Court of Appeal (CoA) in April overturned her previous guilty conviction for reckless driving that killed eight teenagers on basikal lajak (modified bicycles) in 2017, ruling that the accident was “impossible to avoid” because of the dangerous situation created by the cyclists themselves.

The appeals court observed that the magistrate who had twice exonerated Sam had also rightly taken into account the cyclists’ behaviour whereas the High Court judge had not.

Sam’s conviction by High Court judge Datuk Abu Bakar Katar, who also denied her a stay of execution pending an appeal, elicited an outpouring of public opinion with the majority sympathetic towards her, given the circumstances in which the fatal accident occurred in the wee hours of the morning on a dark stretch of road in Johor.

Lawyers who had been opposing counsels in 1MDB-related cases — the late Datuk Seri Gopal Sri Ram and Harvinderjit Singh — even volunteered their services pro bono. But when the former Federal Court judge passed away in January, Datuk Hisyam Teh Poh Teik acted as lead counsel with Harvinderjit as co-counsel.

The defence lawyers did not have to make a meal out of the case as the three-member panel were quick to agree that, in the first place, Sam’s appeal ought to be allowed because of the du