Of DNAAs and excessive punishments Zaid Ibrahim in Malaysiakini - Nov 9, 2023 https://www.malaysiakini.com/columns/686056
COMMENT | The court has sentenced Syed Saddiq Syed Abdul Rahman to seven years in jail, two strokes of the rotan and slapped him with a RM10 million fine.
What was he guilty of? Criminal breach of trust (CBT) and misappropriation of funds to the tune of RM1 million.
Why was the sentence so severe? Because the MACC Act contains such provisions.
The intent of the act was essentially to apprehend money launderers. Money laundering provisions came to be applied in our country and many other countries after the Sept 11 attack in the US.
America wanted terrorists, Islamic groups like Al-Qaeda, Taliban and freedom fighters like Hamas, etc to be choked financially from receiving donations from the Muslim world. Hence, the provisions of the law were made so punitive.
Malaysia is one of those countries whose enthusiasm for money laundering laws is hard to understand. Not only are the jail sentences and fines more severe than those in other countries but even the provisions regarding the burden of proof and the safeguards in the Criminal Procedure Code are dispensed with.
What happened after 2009 was this. There are provisions for CBT and misappropriation of funds in the Penal Code, and there also is the MACC Act, which deals with corruption, misappropriation of funds and CBT - and to top it all - money laundering.
The punishments are poles apart between the Penal Code and the MACC Act. But since MACC handles all cases for corruption, abuse of power, criminal breach of trust and money laundering, you will not get the police involved and by default, MACC holds the reins.
If Haron Idris, the former Selangor menteri besar, is charged today for taking RM250,000 from HSBC belonging to Selangor Umno, he will not get six months in jail but probably be charged with money laundering with a fine of RM2.5 million and five years in jail.
That leaves the decision to charge a person under which law is in the hands of the public prosecutor. We can’t question his decision. He has prerogatives. He is also the attorney-general who reports to the prime minister.
However, that still leaves the question: was Syed Saddiq a money launderer? Is it relevant to enquire if he is involved with the underworld and engaged in human trafficking? Was he a member of a syndicate of drug traffickers?
Grossly excessive
The prosecution will argue that it is not relevant as the act of laundering money is defined in a narrow sense.
But if enquiries are made as to his background (which I maintain was the intent of Amla - The Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001), I doubt the decision to charge him for money laundering is appropriate and fair.
He is perhaps like you and me, who can succumb to temptations, but he is not a money launderer. Syed Saddiq should have been charged under the Penal Code
Why is the need for such a long jail sentence when the act already provides for the forfeiture of the monies laundered?
Why was Amla used, with so many charges against the accused when a CBT charge would suffice? Why do we need to charge someone for grievous bodily harm when we are already charging him with murder?
Protection against double jeopardy is an important element of criminal law, but are we somehow willing to gloss over it in our war against corruption?
I call on the lawyers and the members of the Bar to take a serious look at the issue. I have raised them many times before when I was in government. I cautioned about pleasing the Americans at the expense of our needs, but who would listen to me?
MPs and political operatives in political organisations must be concerned about the matter because they, too, are handling cash on a daily basis, which is not always properly recorded.
A meeting with the current attorney-general is critical. The discretion of the public prosecutor must be grounded on reason and facts. It must make sense to members of the society at large.
I know using Amla makes your work easier, but we should not opt for the route least problematic in discharging our duties as law officers.
There are many instances when a person succumbs to misappropriating funds belonging to others. Every day thousands of Malaysians are managing funds in cooperatives, political societies and normal business operations.
Be fair to the accused
The punishment meted out for such lapses cannot be equated to the misconduct of hardcore criminals and traffickers. Amla is not meant for people like you and me.
Today you are in the good books, but you never know when they will come after you. Your best bet is to repeal some of the overtly harsh provisions of the MACC Act.
Justice is not just meting out harsh punishments. Punishments must be proportionate and fair to the accused.
Not everyone can get a DNAA (discharge not amounting to an acquittal) when the defence is called and Syed Sadiq is one of them. But surely the punishment to him is grossly excessive.
ZAID IBRAHIM is a former law minister.
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