Prosecution: Zahid can’t claim immunity from 46 charges, ‘odd’ for him to raise ‘last minute’ defence of being ‘untouchable’

KUALA LUMPUR : Datuk Seri Ahmad Zahid Hamidi does not have the right to claim that he has legal “immunity” from being prosecuted for 46 of the 47 charges he is facing, as it would be illogical to interpret the law to give such immunity to an accused person merely for having disclosed information to the Malaysian Anti-Corruption Commission (MACC) during investigations, the prosecution told the court today (Sept 22).

In this trial, Ahmad Zahid’s lawyers claimed the former deputy prime minister has immunity from being charged in court over 46 criminal charges, due to the now-repealed law of Section 30(7) in the Malaysian Anti-Corruption Commission Act.

Section 30(7) essentially provides that those who disclose any information during MACC investigations shall not “be liable to any prosecution” due to the disclosure of such information, except for the offence under the MACC Act’s Section 27 of making a false or misleading statement.

Earlier this month, Ahmad Zahid’s lead defence lawyer Hisyam Teh Poh Teik argued in court that his client should have immunity as he had been truthful when providing information to the MACC when his statement was recorded twice in July 2018 and as Section 30(7) was only repealed on October 1, 2018.

Last minute immunity claim

Lead prosecutor Datuk Raja Rozela Raja Toran today however said that Ahmad Zahid cannot bring up this immunity claim at the “last minute” when the trial has already reached the end of the prosecution’s case, and argued that he is not even entitled to use this as a defence in the first place.

“For the immunity issue, the public prosecutor has taken the position that the accused is not entitled for immunity. In fact, we go one step further, he is not even entitled, he does not even have the right to claim for immunity under Section 30(7) of the MACC Act,” she said on the first day of the prosecution’s oral submissions.

Raja Rozela said the prosecution “finds it odd that the accused insists he is immune from prosecution yet wait until the end of the prosecution’s case for him to make his claim to immunity”.

Raja Rozela said Ahmad Zahid’s lawyers should have raised the claim to immunity at an earlier stage, but went on to say that the correct approach would be for Ahmad Zahid to file a judicial review lawsuit in the civil courts instead of bring this immunity issue up in the trial at the criminal courts.  

“But they did not do that, My Lord, instead they waited until the end of the case to do so. And this is why we say it is odd for them to wait until the last minute to raise the immunity,” she said.

“What we are saying, it should be raised at the beginning, at the earliest possible stage, and the best opportunity to do so was when the charges were first read out at the Sessions Court,” she said, adding that Ahmad Zahid’s lawyers had never said anything about immunity when he was charged in October 2018 in the Sessions Court and when the case was transferred to the High Court in March 2019.

“Instead he sat quietly throughout the rough and tough of the trial of 53 days, 99 witnesses, 745 exhibits, and while our trial is going on, the country saw two prime ministers come and go, we underwent Emergency proclamation, MCO and Covid-19 and nothing from them about immunity.

“And here we are, only now, arguing about whether there is immunity or not. Therefore by his long silence, the accused has virtually waived the right to claim immunity, assuming of course he has the right to do so,” she said, later going on to say that Ahmad Zahid has no such right as an accused to immunity from prosecution over information that he was legally-bound to give to the MACC.

Raja Rozela noted that Ahmad Zahid’s lawyers were essentially using the immunity claim to challenge the attorney general’s discretionary powers under the Federal Constitution’s Article 145(3) to prosecute, but said that it should be the civil court that decides on such an immunity claim and the related challenge of the AG’s discretionary prosecutorial powers. 

Datuk Seri Ahmad Zahid Hamidi is pictured at the Kuala Lumpur High Court September 22, 2021. — Picture by Miera Zulyana
Datuk Seri Ahmad Zahid Hamidi is pictured at the Kuala Lumpur High Court September 22, 2021. — Picture by Miera Zulyana

She cited the Federal Court decision in Datuk N. Sundra Rajoo’s judicial review case, where the court had decided that immunity from prosecution cannot be raised as a defence in a trial as it would defeat the purpose of the immunity, and that it cannot be raised at the end of the trial and that the proper place to challenge the AG’s discretionary powers would be at the civil courts through a judicial review lawsuit. 

Absurd to make accused ‘untouchable’

Raja Rozela also said that Ahmad Zahid’s lawyer’s literal interpretation of Section 30(7) as giving immunity for their client is unacceptable and would lead to an “absurdity in law”, as this law should instead be interpreted purposively to give effect to Parliament’s intention of fighting corruption.

“Because it calls into question the logic of exempting someone from prosecution when investigations reveal that that person has committed an offence under the law,” she said, arguing that Ahmad Zahid’s lawyers’ way of looking at Section 30(7) would mean that a person who has accepted bribes could become “untouchable” after telling the MACC officers that he had committed bribery.

“Where does that leave us? What should the MACC officer do? Record statement, put it into a file, tie it with a nice little bow, say ‘thank you very much for disclosing information, you may go now and have a nice day?’ What is MACC supposed to do about that?” she asked.

“Similarly, the defence said the accused has given information about this case, and he is now therefore untouchable. That is what we disagree — It is illogical for an anti-corruption Act to allow such plain nonsense,” she said, referring to Ahmad Zahid as the accused.

She highlighted that the purposive interpretation method was the preferred approach by the Federal Court and also the Interpretation Act when it comes to giving effect to Parliament’s intention for laws.

Citing the April 4, 2018 Hansard of the Dewan Rakyat debates regarding the proposed repeal of the Section 30(7) provision then, Raja Rozela argued that Parliament’s intention for Section 30(7) showed that it is an incentive to encourage witnesses to come forward to the MACC to provide information truthfully.

She argued however that Parliament could not have intended for such a privilege — to not be liable to prosecution — to also be given to an accused person who is found through investigations to have committed wrongdoings.

“So if exemption from prosecution is extended to an accused person, it cannot be, surely the MACC Act itself would fail in meeting its objective to fight corruption in Malaysia,” she said when criticising the literal method used by Ahmad Zahid’s lawyers.

“A literal reading does not do justice to Parliament’s intention in enacting the Act, it gives rise to absurdity. Surely that would be an incorrect and improper approach in construing Section 30(7). This approach if accepted would do violence to the language of the law, but not only that, it would also contravene the spirit of the MACC Act,” she said.

“By applying a purposive rule, it has been made clear that Section 30(7) was never intended to be granted to the accused or any such offenders immunity from prosecution,” she later said, adding that it would otherwise lead to an abuse of the law as seen in Ahmad Zahid’s case.

“Enacting a law to fight corruption yet using the same law to shield the corrupted will send a wrong message to the Malaysian public. It will send a wrong message to the Malaysian public that a leading anti-corruption agency — MACC — is rather useless and impotent to act on wrongdoers. It gives an idea to the public that the MACC is only good at collecting information and not doing anything about it,” she said when cautioning against interpreting Section 30(7) to give prosecutorial immunity to an accused person.

Does Section 30(7) give immunity in the first place?

Raja Rozela said Section 30(7) does not contain the word “immunity” at all, but only provides “an exemption from being prosecuted at the discretion of the public prosecutor” to certain persons who assisted in the investigation.

She pointed out that Parliament would have explicitly mentioned the word “immunity” in Section 30(7) if this provision was intended to provide for immunity, as it had actually used the word “immunity” in Section 72 of the same MACC Act.

Raja Rozela said that Section 30(7) was not enacted to provide a person — who is revealed through investigations to have committed an offence under the MACC Act — “immunity” or “exemption” from being prosecuted.

She pointed out that the MACC has powers under Section 30(7) to call anyone — including those who had yet to be accused in court — who can assist in investigations to provide information, and that this is part of the investigation process.

She explained that the investigating officer would — after completing the investigations and taking into account information from other witnesses —- then be able to submit an investigation report to the public prosecutor along with recommendations on whether to press charges. 

“If MACC records statements from witnesses, everyone is protected, everyone is untouchable, what is the purpose of investigation then, where does it leave MACC?” she said, adding that it would be absurd to say that Ahmad Zahid should not be prosecuted simply because he had provided information to the MACC.

She noted that the Court of Appeal had this year ruled in the case of Teo Chee Kong v Public Prosecutor that Section 30(7) does not give immunity to a person disclosing information from being prosecuted for any offences he may have committed. 

In this trial, Zahid ― who is a former home minister and currently the Umno president ― is facing 47 charges, namely 12 counts of criminal breach of trust in relation to charitable foundation Yayasan Akalbudi’s funds, 27 counts of money laundering, and eight counts of bribery charges.

The trial before High Court judge Datuk Collin Lawrence Sequerah resumes on October 4.

The trial has reached the end of prosecution’s case with 99 prosecution witnesses having already testified.

The judge is now hearing oral submissions or the final verbal arguments from both the prosecution and Ahmad Zahid’s lawyers, before deciding on whether the prosecution has proved a prima facie case that would require Ahmad Zahid to enter a defence or if he would be freed from the charges.


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