Media Statement – 1/10/2021
Ahmad Maslan’s Discontinuance, Compound Offer and Acquittal raises questions and needed reforms
Malaysian law enforcement, prosecution and judiciary must be seen to be free from political influence/interference
MADPET is appalled by the news that former deputy finance minister and Pontian Member of Parliament (MP) Datuk Seri Ahmad Maslan on Wednesday(29/9/2021) was acquitted of charges of money laundering and giving a false statement against him after he agreed to pay a compound of RM1.1 million. (Edge Market, 29/9/2021)
Ahmad Maslan is an UMNO MP since 2008, and have been Deputy Finance Minister (2013-2015) and Deputy Minister of International Trade and Industry. He was appointed the Secretary of United Malays National Organisation (UMNO) in March 2020, and was also the Secretary General of Barisan Nasional(BN) since January 2021.
MADPET notes that Ahmad Maslan in Parliament allegedly admitted receipt of RM1.1million, not RM2 million, and as such that was an admission of guilt.(Malaysiakini, 30/9/2021)
The compound offer and payment was RM1.1 million, as such is unjust. By paying compound, he avoided conviction – hence avoided being disqualified as a Member of Parliament (MP), and even barred for period whilst in prison plus several more years thereafter from being able to contest to become a MP.
Compound is offered to a ‘…person reasonably suspected of having committed the offence..’ (sec. 92 AMLA), and such acceptance and payment is akin to an admission of guilt.
Now the applicable law, in this case the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001(AMLA), states that ‘…compound sum must be such amount not exceeding fifty per centum of the amount of the maximum fine for that offence….’(s. 92 AMLA)
The said tainted, ‘dirty’ or illegally obtained, as admitted by him, being RM1.1 million ought to have been forfeited, and justly the compound offer, which is a ‘penalty’ should not include that ‘dirty monies’ and be at least half of the maximum fine, or roughly about RM4 million. The maximum fine for 1st offence is RM5 million, and the maximum fine for the second offence is RM3 million.
Now, it seems in Ahmad Maslan’s case, it looks like there was no penalty – simply a return of monies he admitted he received in connection for the 1st charge. Was there even no compound offer with regard the lying charge? The Public Prosecutor and/or government must provide clear explanation.
Is the administration of Criminal Justice Independent, free from political/economic interference?
The concern is about the independence and competence of law enforcers, prosecutors and judges in Malaysia. Can the government of the day influence or determine who gets investigated or not, who gets charged, who gets their cases discontinued, who gets acquitted or even pardoned?
If one is guilty and repents, one should plead guilty, and in sentencing, the court will takes into account mitigating factors like repentance, return of monies or fruits of the crimes and other matters.
Compounds, on the other hand, are decision of the administration, and it is best that when it comes to sentencing or even offers of compound, that decision is left to the independent judiciary. If it is the law enforcers like police and MACC, or even prosecutors, these compound offers may not take into consideration just factors like income and fact of return of benefits of crime. The may even take into account wrong issues, including whether one is a Minister or MP.
Discontinuance and Discharge, should never be acquittal
Prosecution charges a person based on a belief that there exist sufficient evidence to prove the crime beyond reasonable doubt. New evidence or disappearing evidence when witnesses change their testimony makes it just to discontinue proceedings, until maybe later stronger evidence is found enabling the charging again of persons accused.
As such, the law provides a discontinuance which results in an accused being discharged. The law clarifies that this discharge does not amount to an acquittal. However, current law retains the discretion for judges to order an acquittal, but really it ought to be used in most exceptional cases.
Acquital mid-trial, without a total evaluation of all relevant evidence, must end. Judges, being human and not infallible, can never ascertain innocence at that stage. It is unjust that even when strong proof of guilt later emerges, and that ‘mid-trial acquitted’ person cannot ever be charged again. As such a criminal goes scot free simply because he was acquitted.
Acquittal means that never again can Ahmad Maslan be charged ‘…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).
Guilt or innocence should only be determined after full fair trial, but now, with this discontinuance and acquittal, instead of just a discharge following the discontinuance, more so of a significant politician and MP from the same party as the current Prime Minister, doubts can arise whether the Malaysian judiciary is indeed Independent.
MADPET takes the position that when there is a mid-trial discontinuance, the accused must only be discharged, and not ACQUITTED. Acquittal should only be available at the end of trial, after the judge has evaluated all evidence and determined that a person is not guilty.
Whether a prosecutor that discontinued proceedings have plans to re-charge in future should not be considered reasonably.
In this case, media report that judge decided to acquit, amongst other reasons, because prosecution ‘…confirmed that Ahmad would not be made to face the same charges...’. The opinion/position of prosecution today and tomorrow may vary. One must also not dispel the possibility of emergence of compelling evidence at a later date. An acquittal gives total immunity to the accused, and no human person can be hundred percent sure whether a person is innocent or guilty after a full trial and a total evaluation of facts.
We recall the case of Najib Razak, where one Public Prosecutor elected not to charge him, but then a subsequent Public Prosecutor did charge him, and the High Court, after full trial, found him guilty.
Noting, the recent phenomena where we have seen Public Prosecutor changing when a new governments come to power, the judiciary ought to consider just a discharge, and never an acquittal in cases of mid-trial discontinuance of criminal cases. In most exceptional cases, where maybe like when another had admitted to murder or rape, then it may be reasonable the current accused charged for the same crime be acquitted.
Charges Of Making False Statements And Money Laundering Are Serious
In the case Ahmad Maslan, the first charge was money laundering by not declaring the RM2mil he allegedly received from former Prime Minister Datuk Seri Najib Razak when filing taxes for year 2013. He was charged in January 2020 under Section 4(1)(a) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for the act which was allegedly committed on April 30,2014, at the Inland Revenue Board branch in Jalan Duta.
If that was offence committed after August 2014, on conviction he will be liable to a sentence of imprisonment for a term not exceeding fifteen years and shall also be liable to a fine of not less than five times the sum or value of the proceeds of an unlawful activity or instrumentalities of an offence at the time the offence was committed or five million ringgit, whichever is the higher.
However, since the alleged offence was committed in April 2014 before the amended law came into force in August 2014, one convicted is liable to a fine not exceeding five million ringgit or to imprisonment for a term not exceeding five years or to both. Note Parliament considers this crimes as very serious, noting massive jump in the sentences that the amendment brought about.
For the second charge, he was accused of making false statements to Malaysian Anti-Corruption Commission (MACC) officials. He was charged under Section 32(8)(c) under the same Act, for the act allegedly committed in the Media Room in Parliament on July 4,2019. shall on conviction be liable to a fine not exceeding three million ringgit or to imprisonment for a term not exceeding five years or to both.(Star)
The fact that Parliament amended and increased penalties is a clear indication how serious we consider such crimes. This raises the question of whether the power to offer compounds should be removed, and leave it to the court to ensure a just sentence.
It must be noted that for especially since a peoples’ representative, a Member of Parliament, the second offence is about LYING to the authorities, more so law enforcers, which is a very serious offence.
MADPET calls for the prosecution to apply to court to ensure that Ahmad Maslan not be acquitted, but only be discharged;
MADPET calls on the Public Prosecutor to explain by statement to the public what happened in the Ahmad Maslan’s case, and also do so in subsequent cases when prosecution decide on discontinuance especially involving political personalities and/or their family members;
MADPET calls for the abolition of acquittal generally, save for exceptional cases, when prosecution decides to discontinue criminal proceedings mid-trial. Acquittal should only be after Judge evaluates all relevant evidence at the end of trial;
MADPET calls for the removal of power to compound for serious crimes like corruption and money laundering, and all accused should be charged and tried, and judge has the power in ordering a just sentence, and
MADPET calls for enhancement of perception of independence of law enforcers including MACC, prosecutors and judges, so that they can all act independently and professional with political or other influence or interference.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
Ahmad Maslan freed after paying RM1.1m compound
Ahmad (centre) leaving the Kuala Lumpur Courts Complex on Wednesday (Sept 29). He was first charged on Jan 20 last year. (Photo by Zahid Izzani Mohd Said/The Edge)
KUALA LUMPUR (Sept 29): Former deputy finance minister and Pontian Member of Parliament (MP) Datuk Seri Ahmad Maslan was on Wednesday acquitted of charges of money laundering and giving a false statement against him after he agreed to pay a compound of RM1.1 million.
The acquittal was recorded by High Court Justice Datuk Ahmad Shahrir Mohd Salleh.
Justice Ahmad Shahrir in his decision to grant the acquittal said the learned deputy public prosecutor (DPP) applied not to continue prosecuting the accused, and he confirmed that Ahmad would not be made to face the same charges.
"This stems from the fact that the accused has accepted the offer of a compound and duly paid it. I hereby order the accused to be acquitted of the two charges and the hearing dates are vacated," the judge said.
Ahmad's lawyers from Messrs Shahrul Hamidi and Haziq said the acquittal is not an admission of guilt but a settlement through the payment of the compound in a bid to resolve the matter.
“The prosecution also informed the court that it would not proceed with the charges. For everyone's information, this settlement is not a new process as it took a year before this was accepted and recorded by the court on Wednesday.
“A series of representations were sent to the Attorney-General's Chambers (AGC) as widely reported. The process to settle is a result of a series of applications, discussions, mediation between the parties and this finally became a reality when it was recorded after agreed to by all parties,” the firm said in a statement.
Wednesday was initially fixed for case management of the matter as trial dates were fixed for June next year. However, DPP Mohd Mukhzany Fariz Mohd Mokhtar informed the court of the discharge of the two charges after the politician agreed to pay the compound on Tuesday.
Ahmad was first charged on Jan 20 last year in the Sessions Court under Section 4(1) and Section 32(8) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activity Act 2001, where he received a sum of RM2 million from former prime minister Datuk Seri Najib Razak, which was said to be from 1Malaysia Development Bhd (1MDB).
Ahmad, who was also charged with giving a false statement to the Malaysian Anti Corruption Commission (MACC), claimed trial to the charges.
Seeking clarification from EC
His case was then transferred to the High Court and the defence also wrote to the Election Commission (EC) to clarify his status as an MP and his qualification to contest as stipulated under Article 48A (1) (e) of the Federal Constitution over the issue should the compound be paid.
“It was clear that our client was prepared to face a trial to prove his innocence but at the same time he wanted to find a way to resolve the matter to create a win-win situation.
“The EC responded positively on May 5, 2021 after this was referred to the AGC that payment of the compound would not result in his disqualification as an MP. This led to his evaluation to pay it as a good settlement,” the firm added.
The defence, the firm said, applied to transfer the case to the High Court and this was allowed by Justice Datuk Collin Lawrence Sequerah after noting that there were similar cases.
It added that Ahmad had given his full commitment to the case and the investigation process.
“Let us reiterate that this settlement is not an admission of guilt by Ahmad over the charges and secondly, this settlement is according to the law and has gone through a proper process and is transparent,” the firm said.
“This has nothing to do with any political or external factors, and does not involve any people or the investigative or the prosecuting agency. The settlement is a win-win situation for all,” it said, adding that Ahmad had fulfilled his commitment to resolving the matter by paying the compound as agreed with the loan given by his friends who supported him.
The firm hopes the enactment or guidelines on political financing would help resolve the situation.
Ahmad is the second individual who has paid a compound to be acquitted of money laundering charges in relation to funds allegedly from 1MDB.
In July, Umno-linked lawyer Datuk Wira Mohd Hafarizam Harun was also acquitted of money laundering by paying a compound of RM590,587.26 after his firm was said to have received RM15 million from Najib, which was to be transferred to the former premier's media adviser Paul Stadlen.
The charges against Stadlen were also dropped after he agreed to return RM7.192 million to the MACC. - Edge Markets, 29/9/2021
PARLIAMENT | Umno secretary-general Ahmad Maslan said he paid a RM1.1 million compound to the MACC because that was the amount he received from former prime minister Najib Abdul Razak.
He denied the amount was RM2 million as his previous money laundering charge alleged.
"I admitted to the MACC that I received RM1.1 million, I deny that I received RM2 million.
"I told them to ask the one who gave it to me, that is Pekan (Najib), and Pekan confirmed it was RM1.1 million," he told the Dewan Rakyat today.
Paying the compound had resulted in the money laundering charge against the Pontian MP being dropped yesterday.
The MACC had said that a settlement had previously been offered to Ahmad (above) in 2019, but the latter rejected it.
Explaining this, Ahmad said at the time the MACC compounds was multiple times the amount received.
He said a person who received RM50,000 from Najib was issued a compound 50 times that amount.
"So I fought at that time. But I saw the (court) process was taking too long," he added.
Ahmad reiterated earlier that he was a victim of unregulated political funding.
The funds he received from Najib is believed to be linked to the 1MDB scandal.
There is speculation that Ahmad resorted to a settlement to open the path for him to become a Dewan Rakyat deputy speaker.
Bersatu had rejected Ahmad's nomination on account of the money laundering charge.
It remains to be seen whether they will be swayed by yesterday's outcome. - Malaysiakini, 30/9/2021
Ahmad Maslan pleads not guilty to money laundering charges
For the first charge, he was accused of money laundering by not declaring the RM2mil he allegedly received from former prime minister Datuk Seri Najib Razak when filing taxes for year 2013.
He was charged under Section 4(1)(a) of Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for the act which was allegedly committed on April 30,2014, at the Inland Revenue Board branch in Jalan Duta.
For the second charge, he was accused of making false statements to Malaysian Anti-Corruption Commission (MACC) officials.
He was charged under Section 32(8)(c) under the same Act, for the act allegedly committed in the Media Room in Parliament on July 4,2019.
Judge Azman Ahmad set bail at RM500,000 with one guarantor, and ruled that Ahmad’s passport be surrendered.
The deputy public prosecutor is Norzilati Izahani Zainal, while Ahmad was represented by Hamidi Mohd Noh.
The next mention for the case is on Feb 21.
Prior to this on Monday (Jan 20), Ahmad had been taken in for questioning by the Malaysian Anti-Corruption Commission (MACC).
Johor Baru Umno division chief Tan Sri Shahrir Abd Samad is also in court today (Jan 21), facing a charge under the same Act.
MACC revealed in October last year that 80 entities, including individuals, were given two weeks to pay a total of RM420mil, an amount which was classified as fines for receiving monies from 1Malaysia Development Bhd (1MDB).
The commission named Ahmad and Shahrir as among nine individuals who were slapped with the compounds.
On Jan 6, the MACC said it would challenge a move that was filed against it on the right to issue compounds to recover funds which allegedly originated from 1MDB.
It had been reported that Ahmad and Shahrir were among those challenging the notices issued by MACC.
The Star, 21/1/2020
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