Media Statement – 7/9/2021
Apology and Compensation to Noor Ehsanuddin, after 29 Bribery Charges Withdrawn
- No Acquittal for Mid-trial discontinuance by Prosecution -
MADPET calls for the just compensation for victims of the failings or incompetence of the police, law enforcement and/or the prosecutors.
Noor Ehsanuddin Mohd Harun Narrashi, a then Director of FELDA, was on 1/9/2021 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, 1/9/2021)
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 Malaysian Anti- Corruption Commission 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 on 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 2 years ago since trial commenced is also odd. Such section 62 statements by the accused should have been considered, investigated and determined before even trial commences, not 2 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/MACC and the public prosecutor must have been convinced of guilt with sufficient evidence before they do 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.
Worse, is the fact, that this withdrawal of charges or discontinuance happens when a new UMNO Prime Minister takes office, which raises the possibility of political involvement in the administration of justice.
Thus many may still hold, rightly or wrongly, the belief that Noor Ehsanuddin is really guilty and he has been saved simply by the fact of a change in government.
The failings of the MACC, police and the public prosecutor that has caused Noor Ehsanuddin such anguish and suffering cannot be swept under the carpet. The persons responsible ought to be investigated, charged and tried; and/or taken action against. To date, neither the government, Public Prosecutor or MACC has yet to apologize 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, B.E. 2544 (2001), where this includes the accused who is entitled to compensation and expenses include cases where the charge is withdrawn during trial.
Section 20 of this Thai Act, which is in Thai, 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 it the police, MACC and the Public Prosecutor(or the Deputy Public Prosecutor) also may need to be penalized 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 do have the power pursuant to Section 254(1) of the Criminal Procedure Code which states, ‘(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 ‘(3) Such discharge shall not amount to an acquittal unless the Court so directs.’
If Acquitted – Never Again Can Be Charged for 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 ‘….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 mid-trial discontinuance or withdrawal of charges, the court should only grant a Discharge Not Amounting An Acquittal (DNAA), as there is always the possibility that new evidence may emerge later proving the guilt of the accused. A DNAA 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 where the Attorney General is part of.
The then Chief Justice Tun 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” (NST 22/8/2006),” CJ: Revamp needed for a fully independent judiciary” (Sun), “Independent judiciary proposed” (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 also called for the ‘…separating the Judicial Services and the Legal Services…’
Currently, the Attorney General, 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 the criminal justice and/or for the Independence of the Judiciary.
Will the prosecution appeal the acquittal of Noor Ehsanuddin for the purposes of getting the appeal court to change it into a Discharge Not Amounting To Acquittal?
MADPET thus calls on the Public Prosecutor to forthwith apologize to Noor Ehsanuddin Mohd Harun Narrashi, and also provide him damages and compensation for the sufferings caused;
MADPET also calls 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;
MADPET calls for independence of Magistrates and Session Court Judges by placing them directly under the Judiciary, with the necessary safeguards to ensure independence;
MADPET also calls for an Independent Public Prosecutor, different from the Attorney General;
MADPET also calls for the end of granting of Acquittals for cases that the prosecution discontinues or applies to withdraw the charges mid-trial. Acquittal should only be granted after the Judge has evaluated all evidence and made a decision be it after the close of prosecution case, or at the end of trial; and
MADPET calls for no political interference in the administration of justice.
Charles Hector
For and on behalf of MADPET(Malaysians Against Death Penalty and Torture)
see also:-
MALAYSIAN JUDICIARY WANTS COMPLETE INDEPENDENCE FROM THE EXECUTIVE
29 Bribery Charges - mid-trial discontinuance and acquittal - Time to Abolish ACQUITAL safe for after trial/close of prosecution case?
Cases withdrawn, former FELDA board member acquitted and discharged of 29 bribery charges
Cases withdrawn, former FELDA BOD member acquitted and discharged of 29 bribery charges
KUALA LUMPUR (Sept 1): Former Federal Land Development Authority (Felda) board of directors member, Datuk Noor Ehsanuddin Mohd Harun Narrashi was today acquitted and discharged of 29 bribery charges after the prosecution withdrew all the charges against him.
His counsel Datuk Hasnal Rezua Merican, when contacted, said the prosecution had informed the court on the withdrawal of the 29 charges during the case proceeding before Sessions Court judge Suzana Hussin last May 21.
"Actually, the date (May 21) was set for continuation of the case hearing but the prosecution informed the court on withdrawing all the charges against the accused.
“This came about after the Malaysian Anti-Corruption Commission (MACC) had 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.
"Therefore, the prosecution withdrew the charges against my client (Noor Ehsanuddin) and the court then acquitted and discharged him of all 29 charges,” said the lawyer.
The court hearing started in August 2019 and 24 prosecution witnesses including bank officers and Companies Commission of Malaysia officials gave evidence.
In the Sessions Court here, Noor Ehsanuddin, 58, was facing 14 charges of accepting a bribe of RM23,540.68 in instalment payments for a BMW 3 Series car, from a printing company, Karya Hidayah Sdn Bhd in 2014 and 2015.
In the Johor Bahru court, he faced 10 charges including receiving a bribe of RM50,000 and a piece of land from the same company in 2013 and 2014.
He was also charged in the Shah Alam Sessions Court with five counts of accepting the maintenance of two vehicles and the legal fee payment of RM12,707.60 for the purchase of a piece of land.
The cases in Johor Bahru and Shah Alam were heard together with the case in the Sessions Court here - Edge Markets, 1/9/2021
Former Felda BOD member acquitted, discharged of 29 bribery charges
Wednesday, 1 September 2021
KUALA LUMPUR (Bernama): Former Federal Land Development Authority
(Felda) board of directors member, Datuk Noor Ehsanuddin Mohd Harun
Narrashi, has been acquitted and discharged of 29 bribery charges after
the prosecution withdrew all the charges against him.
His counsel
Datuk Hasnal Rezua Merican, when contacted, said the prosecution had
informed the court on the withdrawal of the 29 charges during the case
proceeding before Sessions Court judge Suzana Hussin last May 21.
"This came about after the Malaysian Anti-Corruption Commission (MACC) had 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.
The court hearing started in August 2019 and 24 prosecution witnesses including bank officers and Companies Commission of Malaysia officials gave evidence.
In the Sessions Court here, Noor Ehsanuddin, 58, was facing 14 charges of accepting a bribe of RM23,540.68 in instalment payments for a BMW 3 Series car, from a printing company, Karya Hidayah Sdn Bhd in 2014 and 2015.
In the Johor Baru court, he faced 10 charges including receiving a bribe of RM50,000 and a piece of land from the same company in 2013 and 2014.
He was also charged in the Shah Alam Sessions Court with five counts of accepting the maintenance of two vehicles and the legal fee payment of RM12,707.60 for the purchase of a piece of land.
The cases in Johor Baru and Shah Alam were heard together with the case in the Sessions Court here. - Bernama- Star, 1/9/2021
Separation of Judicial & Legal Services Resolution (25/3/2000)
The 54th AGM of the Malaysian Bar held at the Renaissance Hotel, Kuala Lumpur - Saturday, 25 March 2000
Motion 4:
Whereas:-
1.
Today, for more than 90% of the criminal cases, the Magistrate’s Court
and the Sessions Court are the courts of first instance. With regard to
civil and commercial matters, the lower courts have the jurisdiction to
hear disputes where the sum disputed or the value of the subject matter
is not exceeding RM250,000.00.
2. The mechanisms provided in the
Federal Constitution to ensure the independence of the Judiciary (i.e.
judges of the High Court, Court of Appeal and Federal Court, the Chief
Justice, and President of the Court of Appeal and the Chief Judges of
the High Courts) does not extend to Magistrates and Sessions Court
Judges.
3. For example, Magistrates are being remunerated at the
scale similar to those of other civil servants with equal education
qualification and length of service.
4. All members of the
Judicial Services, which includes Magistrates and Sessions Court Judges,
and the Legal Services come under the jurisdiction of the Judicial and
Legal Service Commission (ref. Art. 138 Federal Constitution), whereby
the Attorney General is a member of the said Commission. Thus, the
“prosecutors” and “judges”, especially when it comes to criminal
matters, come under the jurisdiction of the same Commission and this
does not augur well, for “justice must not only be done but also be seen
to be done”.
5. Some Magistrates have been appointed as Deputy
Public Prosecutors (DPP), and some DPPs have also been appointed as
Sessions Court Judges.
6. Many Magistrates appointed are fresh
law graduates. The only pre-requisite for the appointment as a
Magistrate or a Sessions Court Judge is that he/she must be a member of
the Judicial and Legal Services (see sec. 60 & 78A of the
Subordinate Courts Act 1948). There is no other qualifications
requirements akin to those provided for in Article 123 of the Federal
Constitution when it comes to the appointment of the judiciary.
7.
As officers of the Court, lawyers have a duty to be proactive in making
constructive suggestions for the improvement of the administration of
justice in Malaysia.
It is hereby resolved:-
A. That the Malaysian Bar expresses concern about the lack of
mechanisms and safeguards to ensure the independence of Magistrates and
Sessions Court Judges in the lower courts.
B. That the Bar Council be proactive and work towards bringing about
reforms in the administration of justice in the lower courts in
Malaysia, having special regard to the :-
(a) qualification of Magistrates and Sessions Court Judges;
(b) introduction of Mechanisms or Safeguards to ensure greater
independence of Magistrates, Sessions Court Judges and other judicial
officers; and
(c) the necessity of separating the Judicial Services and the Legal Services.
Proposer: Mr Charles Hector
Seconders: En. Amin Hafiz
Ms Mary Manickam
Resolution:
The Motion was unanimously carried.
No comments:
Post a Comment