MACC goofs up in court

I am no lawyer. In fact that may be my only real regret in life. I applied to study law in Singapore and therefore did not apply to the University of Malaya (UM) because it did not offer law. My father would have none of that and instructed me to apply to UM with the Faculty of Economics and Administration.

I did both and was offered a place in UM but put on a reserve list for University of Singapore’s law faculty. There ended my childhood dream of becoming ‘Perry Mason’ in real life. My only legal training is limited to the three or four subject of laws at UM.  I enjoyed constitutional law and studied the British governance system in Form 6.

I have come to love the field of governance as my applied area of economic and administrative interest. Of course my major was public administration. My foundation field of economics has helped me develop the optimisation logic for all public policies of this nation.

That, coupled with my MBA course at University of Wisconsin, Madison, and my doctoral studies with GWU in Organisation and Management Theory, makes for my focused interest in good governance in all organisational systems these days.

For good governance to prevail anywhere in the world, we need an excellent modern legal system with a capable jurisprudence system and the necessary administrative capability for enforcing compliance.

Therefore, all enforcement agencies must understand and fully appreciate their legal responsibility for framing of the issue, making of the requisite charge, and then seeking real problem resolution with the punishment systems.  

However, when a public agency with responsibility for the greatest need of the hour (i.e. our fight against bribery and corruption) frames a charge and cannot make it stick so many times in a row, I lose confidence in our entire jurisprudence system.

The MACC prosecutors have failed, the judge has failed, and the attorney-general (AG) has failed; and the biggest losers are the simple people and their public interest. In the meantime, the biggest winners are the crooks and who have learned to rape, reap and enjoy.

In the corruption charge against the former Immigration director-general (DG), the judge found no prima facie basis for calling for his defence. But this is not the first time that the MACC has goofed.

It seems like, except for one or two older cases, the MACC has failed even to make the most preliminary requisite evidence for the charge. What is wrong with its lawyers? More importantly what is wrong with the AG’s Chambers which approves the making and framing of such charges?

One side or both sides, or all sides of these legal eagles appear absolutely incompetent. I would even suggest that they may be both uniformed and incompetent, which is my usual definition for an idiocrat. That is, those who do not know but do not know that they do not know. How tragic?

What went wrong?

What appears to be the flaws in this particular case and the system of prosecution and defence?  

After a first report is made by anyone, the police or the MACC conduct an investigation. Usually, an investigation officer (IO) trained in legal evidence gathering heads the search for evidence regarding the wrong-doing as per the complaint. When all parties undertaking the investigation are satisfied, a charge is made before the judicial system. A judge hears and oversees every step of the case story and process to ensure justice prevails for all parties.  

When all facts, figures, personalities and evidence to support the case are complete, the IO makes a charge based on the hypothesis of guilt and innocence, with full regard for the law and its enforcement. The AG’s Chambers must authorise the charge before the MACC legal department can execute it in a court of law as a deputy public prosecutor (DPP). By current interpretation and rendering of the law, only the AG is the Public Prosecutor.

The full case is heard before the court. The DPP makes his case and the public are informed vide media reporting. In this case 40 witnesses were called to make the case, at much cost to the public, as the funds for this process are paid by citizens.We therefore expect justice to be exacted.

In this specific case, the judge threw the case out because the charge did not stick. Was this a good decision? Was the case well presented? Was anything overlooked? Was an eye closed to some real truths? Was there implicit collusion in not wanting to make the case stick by both AG and MACC lawyers? Was there any political interference to protect the real crooks?

My scepticism and lack of faith in our jurisprudence system must be appreciated. Frankly, I am happy for the ex-DG of Immigration but why should it be that the MACC can bastardise an entire department’s officers with this one charge? Why should the person’s personal image and reputation be tarnished if there was in fact no real case?

Why were MACC lawyers so incompetent in prosecuting the DG without being able to make the charge stick? Are they maybe being instructed to become incompetent or to close one eye? While we say one swallow does not a summer make, the converse must be true – too many spoiled soups do make the thesis for a very bad cook. So, I conclude that the menu and recipe must have been bad too.

Missing link

From my reading of the case as reported in Star, the biggest missing link was the intermediary who handled and paid the RM60,000. We know the money was paid and received, but what we do not know is why the money was paid and who received it on behalf of who. Why was the ‘agent of corruption’, a Singaporean named Sim Guan Yu never called to the witness stand?

This was the defence lawyer’s strongest argument: the absence of the material witness. Was it so difficult to secure his attendance? Was there the political will to secure him? Or would he have revealed too much? Too many questions remain unanswered for me.

To me, even the judge appeared uninformed and not very competent, if she did not insist upon the material witness being called to testify. Public interest has therefore not been served. My reason is simple.

Section 50(1) of the MACC Act defines even the presumption of such an offence: ‘Where….. it is proved that any gratification has been received or agreed to be received, accepted or agreed to be accepted, obtained or attempted to be obtained,  solicited, given or agreed to be given, promised, or offered as an inducement or a reward, for or account of matter set out in the particulars of the offence, unless the contrary is proved’.

There is motive where there is no evidence to the contrary, says the law. Our judge appears to be blind because she has chosen to close both eyes to the due process and the laws of natural justice. How could she not have asked the defence to adduce evidence to prove the contrary? To me, this judgment reflects what the dean of the Harvard Law School described in the title of his book as ‘The Death of Common Sense’.

Did the MACC then make a false charge against the ex-head of a public service organisation? Why even make a charge when there is sufficient evidence and presumption of guilt, as the law says? I think the ex-DG should now make a counter-charge if he is innocent, and make a claim against the MACC for false accusation and destruction of his reputation under civil law.

I also think that the Public Services Department should feel insulted that its best candidate for the job of DG of Immigration was charged as a corrupt individual. It should not therefore close one eye to the internal promotion process wherein it presumes that the individual is innocent and has always had a clean record and ‘that is why he was promoted’.

In the absence of the above factors, injustice has prevailed in this case. Whither truth of any matter in this nation of ours? May God guide us all to the truth of all matters. And may God still bless Malaysia!