Court May Have Exercised ‘Maximum Restraint’ In Zahid’s VLN Case

After Najib and Rosmah, the court could not risk acting with impunity and Ruling against Umno President Ahmad Zahid Hamidi!

Umno President Ahmad Zahid Hamidi was freed by the High Court in Shah Alam of 40 corruption charges on the VLN (Visa Luar Negara) or Foreign Visa System case on Fri, 23 Sept 2022 after the Prosecution “failed to make out a prima facie case”. The full written grounds of judgment will be available on Mon, 26 Sept 2022, according to High Court Judge Mohd Yazid Mustafa. You can also read here and view here.

In fact, it can be argued that the High Court has no jurisdiction on the VLN case, based on the Basic Features Doctrine which underlies, permeates, and is inherent and implicit in the Constitution. The government stands indemnified, has immunity, and implicit Pardon for “acts in office”. The Federal Court, sitting as the Constitutional Court, can make the determination on the intention of the framers of the Constitution and declare on point/s of law.

Based on court procedures, the Prosecution has 14 days to file Notice of Appeal.

The Other Charges

Zahid, also Barisan Nasional (BN) chairman, still faces 47 other charges in the High Court of Malaya for money laundering and criminal breach of trust involving millions from Yayasan Akalbudi which, ironically, he owns.

His defence was called in Jan this year after High Court Judge Collin Lawrence Sequerah Ruled that a prima facie case had been made out. The judge recently visited properties bought by the Foundation and used for charitable purposes. In law, Foundations are tax-free non governmental organisations. This must be the first time that a Foundation ends up in court.

Zahid can write a letter of representation to the Attorney General Idrus Harun on the case which was brought by then Attorney General Tommy Thomas, acting on the instructions of Prime Minister Mahathir Mohamad, after GE14 on Wed 9 May 2018. Prime Minister Ismail Sabri can “whisper” in the AG’s ears on the letter of representation. The AG is part of the government, not the Judiciary. Hence, the question of the government interfering in the Judiciary does not arise.

No court will consider conspiracy theories.

Circumstantial evidence cannot be introduced in criminal cases. The Test of the Burden of Proof is beyond reasonable doubt.

If the accused isn’t cross examined, the Test will be switched from the criminal to civil. It happened in Sodomy 2.

Circumstantial evidence can be introduced in civil cases. The Test of the Burden of Proof is balance of probabilities.

In Sodomy 1, Anwar Ibrahim claimed that he was the victim of a political conspiracy.

Judge Augustine Paul advised him to focus on defending himself on the charges.

In Sodomy 2, I advised Anwar by whatsApp against mentioning political conspiracy.

His best bet was to drag out the case. So, it took nearly nine years before he was jailed.

Court Could Have Gone The Other Way

The VLN case brought against Zahid, being political, may be one of those cases which could have gone the other way. The SRC case against former Prime Minister Najib Abdul Razak and the solar power project case against Rosmah Mansor, the wife, refer.

It could have gone the other way in court for Zahid, as in the cases involving Najib and wife Rosmah - NMH Graphics by DH
It could have gone the other way in court for Zahid, but the – NMH Graphics by DH

The Judge said the testimonies by three key prosecution witnesses – former UKSB executives Wan Quoris Shah Wan Abdul Ghani and Harry Lee Vui Khiun, and former administrative manager David Tan Siong Sun were unreliable and untrustworthy; other key witnesses were not called; there were doubts that the money existed; he could not accept a ledger as proof of payment; there was no evidence on who made the payments; and CCTV recordings from Zahid’s house were not produced.

Alternative Arguments

Law, ultimately, remains the power of language.

Judge Mohd Yazid, based on the “anything can happen in court” school of thought, could have easily made alternative arguments viz. the testimonies by the three key prosecution witnesses were reliable and trustworthy; other key witnesses need not be called; there are no doubts that the money existed; the ledger was proof of payment; evidence on who made the payments was not necessary; and CCTV recordings from Zahid’s house, even if produced, may not be reliable. Deja Vu!

Blinkers

The Prosecution knew that many people, besides Zahid, received political donation from Ultra Kirana Sdn Bhd (UKSB), the company testifying in the case against the Umno President. Yet, the Prosecution brought the case only against Zahid. They were hoping to persuade the court to put on blinkers and Rule that a prima facie case had been made out.

The Prosecution reckoned that VLN would be a simple open and shut case like the SRC case and the solar power project case. It was all about the Prosecution winning political cases by hook or by crook. Bad cops also swear by the same mantra in chasing promotions even if it means incarcerating the innocent and risking nightmares.

The 1st fatal flaw in law in the VLN case was that the Prosecution did not drag the others, who also received political donation, to court. The cat was out of the bag. The list of those who received political donation from UKSB reads like from “Who’s Who in Umno and Malaysia”. The Judge could have said, “they are not in the charge sheet. For example, not every rapist is brought to court”.

Gopal Sri Ram Syndrome

The 2nd fatal flaw in law was that political donation, with one stroke of the pen, was presented by the Prosecution in court as deriving personal benefits based on bribery and corruption and thereby tantamount to abuse of power, conflict of interest and criminal breach of trust. It was the unscrupulous Gopal Sri Ram syndrome all over again.

There’s no law in Malaysia on political donation, no law against it, and no law discouraging it. There’s no reason for the ruling party to facilitate government contracts for a “proxy” company and not expect political donation. The ruling party cannot be about making perfect strangers rich for no rhyme or reason. If government contracts are handed out on the basis of track record, it’s a different matter. Also, foreign firms may not get involved in political donation situations.

Under the 4th Special Position, by way of “reasonable proportion” in Article 153, the government can provide business opportunities — notwithstanding Article 8 — to Malay defined by Article 160(2), Orang Asal in the Borneo Territories — Sabah and Sarawak — and Orang Asli in Malaya. Orang Asal and Orang Asli are defined by the ownership of NCR (native customary rights) land i.e. ancestral and historical property by heritage.

Musa Aman Precedent

Before Zahid, former Sabah Chief Minister Musa Aman was freed of 46 corruption charges on Mon 8 June 2020. The AG and court accepted Musa’s explanation, allegedly without verification, that the RM380m he collected — the money was allegedly from timber contracts — was political donation. The Inland Revenue Board (IRB) did not go after Musa for taxes due on the RM380m. The MACC (Malaysian Anti Corruption Commission) and Bank Negara did not freeze, seize and forfeit the RM380m — under civil action — as proof of Musa being party to illegalities i.e. money laundering activities.

It appears there’s a thin line in the MACC dictionary between political donation and corruption. In short, political donation could be considered corruption and corruption considered political donation. In the solar power project case for example, Rosmah the potential witness for the defence became the accused and the accused for two years, aide Rizal Mansor, became prosecution witness. It was all about nailing someone, anyone, and winning a conviction and basking in the glow of public adulation. Ad hoc Prosecutor Gopal Sri Ram can be heard literally bragging in the video below about the conviction.

State Witness

There’s a case for bribery and corruption against Rizal. Now, it will never happen because Rizal became state witness after plea bargaining. Based on what transpired in court, Rizal virtually admitted that the political donation that came his way were in fact bribery and corruption. He told the defence that he wasn’t ashamed of his lifestyle since it was maintained by political donation. Rizal, who drew only RM7K a month as Special Officer, had a fleet of luxury cars, flew here and there with the family by private jet, and performed the umrah every year.

In the rule of law, the basis of the Constitution, there can be no discrimination under Article 8 unless there are special circumstances, exceptions, qualifiers, caveats, ifs and buts. – NMH

About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly Chief Editor of Sabah Times. He is not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

The points expressed in this article are that of the writer and do not necessarily reflect the stand of the NMH.

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