COMMENT After the advent of Malaysia “Boleh” (can), which earned our nation the moniker “Bolehland”, the prime minister and his cabinet of ministerial minions have now outdone themselves with the "donation".

Too much had been said, but sadly, nothing had been done, about this so-called "donation" of RM2.6 billion transferred into the prime minister's personal account with AmBank, as confirmed by the Malaysian Anti-Corruption Commission (MACC). Hence, we have now become "Malaysia... truly a 'can do' nation!"

Previously, back in November 2006, the present tourism minister, then minister in the Prime Minister's Department, Nazri Abdul Aziz, was lampooned when he said that "ACA's hands are tied" and "Money politics are not public transgressions", although he qualified himself by saying that he "may be wrong".

If this was according to his "understanding of it", then he had also completely misunderstood and misconstrued the Anti-Corruption Act 1997.

Although he had tabled the Act (or more accurately, the Bill), he had turned the tables on Act 575.

The Anti-Corruption Act 1997 (Act 575) had since been repealed and replaced with the Malaysian Anti-Corruption Commission Act 2009 (Act 694), which came into operation on Jan 1, 2009.

Let us begin with the present Act 694, where in section 3, 'gratification' means “money, donation, gift...” Therefore, whichever way the spinners turn, they are hopelessly caught in a web of their own lies which not many Malaysians believe.

It is common knowledge that when a head of state accepts a gift from another head of state, such gift is reported and accounted to the Treasury of the former state. Likewise, when a head of state gives a gift to another head of state, such gift is from taxpayers' funds of the former state.

Such gifts are therefore received or given on behalf of the state, not in the personal capacity of the respective head of state. Now, the ubiquitous "donation" of RM2.6 billion transferred into the prime minister's personal bank account with AmBank is thus laid bare.

Section 10 and sub-sections (a), (b), (aa) and (bb) of Act 575, which define the offence of accepting 'gratification', are replicated from section 3 and sub-sections (a), (b), (i) and (ii) of the repealed Prevention of Corruption Act 1961 (Act 57) (Revised 1971) ("1961 Act"), except for the penalty, which had been enhanced from a fine not exceeding RM10,000 or to a term of imprisonment for a term not exceeding five years or both, to a fine of not less than five times the sum or value of gratification or RM10,000, whichever is higher and imprisonment for a term of not less than 14 days and not more than 20 years under section 16 of Act 575.

The Supreme Court, in Public Prosecutor v Chan Kit Tong Sally [1991] 1 MLJ 358, held that the definition of gratification in the 1961 Act is wide enough to include the under-counter payment of RM15,000 for the purchase of a low-cost house from a developer. Most importantly, it was also held that the person who corruptly receives such gratification need not be a public officer.

The Supreme Court thus restored the conviction, sentence and penalty ordered by the learned Sessions Court judge, which had been set aside by a judge of the High Court.

The Supreme Court referred to the case of Lim Kheng Kooi & Anor v R [1957] 199, where "the two accused persons who were charged with corruption and abetment of corruption respectively, were private individuals and they were found guilty under section 3(b) of the earlier Prevention of Corruption Ordinance 1950".

Undoubtedly, the 1961 Act therefore applies to public officers and private individuals alike. Section 10 of 1961 Act makes it very clear as it begins with "Any person who by himself, or by or in conjunction with any other person..." The term "any person" is used inclusively and not exclusively.

Interestingly, the deputy public prosecutor, who appeared for the appellant was none other than the present Federal Court judge, Suriyadi Bin Halim Omar, whilst the respondent was represented by the late Christopher Fernando. To his credit, the late Christopher agreed that the under-counter payment of RM15,000 was gratification under provisions of the 1961 Act.

He however submitted that the under-counter payment was received by the accused for her company, and not for herself.

This did not find favour with the Supreme Court judges, who referred to the case of Datuk Haji Harun Bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155, where the accused was found guilty of corruption under the 1961 Act, although the sum of RM250,000 he had received from Hongkong & Shanghai Banking Corporation was not for his own personal benefit, but for Umno.

If Act 575 applied only to public officers, then those in the private sector are immune from prosecution, which could not have been the intention of Parliament, when Act 575 was passed.

Therefore, the minister's opinion that "members are immune from action outside the party (for wrongdoings within the party)" is also completely wrong and clearly untenable, as adumbrated above.

If this is the case, then public officers being prosecuted under Act 575 could claim that it is unconstitutional, as it violates Article 8 of the Federal Constitution, which provides for equality before the law.

An act of corruption, whether committed by a public officer or private individual, is still corruption pure and simple, unless the Supreme Court was wrong.

The second spin

Now, we move on to the second spin that RM2.6 billion deposited into the prime minister's personal bank account with AmBank was a "donation" to Umno by a Middle Eastern donor, as had been continually spun by those are under the spell and dominion of the prime minister.

Unable to deny that the RM2.6 billion had been transferred into his personal bank account with AmBank, the prime minister proclaimed it was not for his personal gain but was holding the RM2.6 million in trust for Umno.

He also claimed that MACC had cleared him, when MACC confirmed that it was a donation! The prime minister will now have to contend with section 50 of Act 694, where the gratification shall be presumed to be corruptly received, unless the contrary is proved.

Sub-section 25(1) of the Societies Act 1966 provides that every registered society shall have one or more trustees. Sub-section (2) provides that no person shall be appointed a trustee of a registered society if he holds the office of the secretary or the treasurer of that registered society, to avoid a situation of conflict of interests.

Under sub-section (3), a trustee shall be appointed at a meeting of the registered society and by a resolution of a majority of the members present and entitled to vote. And finally, sub-section (4) provides that a registered society shall send to the registrar a copy of every resolution appointing a trustee and such copy shall be signed by the trustee so appointed and by the secretary of the registered society.

The fundamental question is did Umno send to the registrar a resolution appointing its president as its trustee? It would be interesting how the brigand of charlatans and sorcerers are going to spin this one. Now the RM2.6 billion is said to be given by Saudi Arabia personally to the prime minister for fighting IS (Islamic State). If only elephants could fly! 

Umno, as a registered society (political party), is subjected to sub-section 7(3)(e) of and Schedule I of Constitution and Rules of Societies, which provide that:

(3) The registrar shall refuse to register a local society where -

(e) the constitution or rules of the society do not contain provisions for all matters set out in Schedule I to this Act or if the society is a mutual benefit society, matters set out in Schedule  II or any other matters which the registrar may reasonably require.

Umno in conformity with items 1(h), (i), (j) and (k) of Schedule I shall have the following provisions in its constitution, that is:

1. (h) the sources from which the society shall derive its income, including the rates and method of payment of such entrance fees and periodical subscriptions as may be decided upon;

(i) the authority or authorities for expenditure from the funds of the society;

(j) the keeping of accounts of the income and expenditure of the society and the publication of such accounts to its members annually;

(k) the appointment of one or more auditors.

Now, many of those minions are clamouring over one another to say that they knew about the donation of RM2.6 billion to Umno. If this was so, was this humongous sum of RM2.6 billion reflected in Umno's audited accounts and annual return for the year 2013 according to sub-sections 26(1) and (2)?

The Umno president may have also breached section 53 for misuse of money and property of Umno. Upon a complaint by an Umno member, the Umno president shall also be subject to prosecution of, or civil proceedings, against him.     

It is imperative that the prime minister cum Umno president comes clean on this preposterous "donation" of RM2.6 billion, otherwise, apart from being a 'can do' nation, it would also be "Malaysia... truly a 'dodo' nation!" Whether it is a gift or a donation, it is irrelevant.

This ‘donation’ scandal is a reprisal of the North-South Expressway scandal in 1987. When goaded by the late DAP leader Karpal Singh, then premier Dr Mahathir Mohamad blurted out "Who is going to pay for the PWTC complex", or words to that effect.

That gave the game away as to the purpose of North-South Expressway contract. The then Umno treasurer, Daim Zainuddin, had placed Umno's assets in Hatibudi Sdn Bhd, which was Umno's trustee.

The aftermath was Operation Lalang on Oct 27, 1987 and opposition leader Lim Kit Siang lost his cases against the Government of Malaysia and United Engineers (M) Bhd ("UEM") in 1988, on his lack of locus standi to question the award of the North-South Expressway contract of RM3.2 billion to UEM, an Umno-linked company.

The North-South Expressway finally cost more than RM6 billion, as taxpayers and road-users are toiling to pay tolls until 2030 and maybe, beyond. This is history repeating itself, but on a more grandiose and blatant scale, as RM2.6 billion was transferred into the prime minister's personal account with AmBank.

CHENG POH HENG  is the contributing editor of Anti-Corruption Act 1997 (Act 575), The Annotated Statutes of Malaysia - Issue 2003 and Malaysian Anti-Corruption Commission Act 2009 (Act 694) - Issue 2010, published by LexisNexis Sdn Bhd. This article deals with these two Acts and the Societies Act 1966. The Exchange Control Act 1953, Central Bank of Malaysia Act 2009 and Financial Services Act 2013 are not therefore not covered.