On NFC, lack of evidence or political will?

Mohamed Hanipa Maidin

Modified 9 Dec 2015, 4:08 am

MP SPEAKS It is frustrating to learn that the National Feedlot Corporation’s (NFC) executive chairperson was acquitted from all the charges related to the highly questionable purchase of a condominium allegedly using NFC’s funds. It is more frustrating to learn that the attorney-general (AG) decided to discontinue the trial due to lack of evidence .

Legally speaking, the verdict of the Sessions Court was not erroneous, though it was utterly weird in the full sense of the word. The judgment was made pursuant to Section 254 (3) of the Criminal Procedure Code ('CPC ). The section gives a full discretion to the judge either to grant a full acquittal or to merely award a discharge not amounting to acquittal (DNA).

For the benefit of laymen it is useful to know the difference between acquittal on one hand and the discharge not amounting to acquittal on the other. But first we need to understand the nature of Section 254 of the CPC and its links to the complete acquittal of NFC’s chairperson.

The NFC’s chairperson was charged with four offences, namely two under the Penal Code and the other two under the Companies Act. Prior to his acquittal, the prosecution had called one witness. So the trial indeed had kicked off.

Before the judge released the accused, the latter had also attempted to drop the charges against him by filing a motion to dismiss the charges. He did not succeed in all his attempts to annul the charges.

The Sessions Court dismissed his application and the decision was duly affirmed by the High Court and the Court of Appeal respectively. The Court of Appeal ordered the accused to be duly tried in the Sessions Court.

The accused did not give up. He instructed his lawyer, Muhammad Shafee Abdullah, to make a representation to the attorney-general presumably asking the AG to drop the charges against him.

When the trial resumed, to every Malaysian’s surprise, the deputy public prosecutor declared to the trial judge that the prosecutor did not want to proceed with the trial and in turn resorted to Section 254 of the CPC and prayed to the court for the accused to be given a discharge not amounting to an acquittal.

The defence counsel, on the other hand, urged the court to exercise his discretion under Section 254 (3) to pass a verdict of full acquittal to his client.

The media report highlighted the DPP, upon the request made by the defence counsel, asking the court to stand down the matter apparently in order to obtain further instructions from his superior. The DPP subsequently reversed his stand by not objecting to Shafee’s request and thus a complete acquittal, and not DNA, was duly awarded by the trial judge.

A myriad of questions

The conduct of the DPP, and by extension his ultimate boss , the present AG, has raised a myriad of questions and speculations.

The primary lingering question is how on earth the AG was bold enough to resort to Section 254 of the CPC in abruptly halting the prosecution against the NFC’s executive chairperson despite the seriousness of the crime and the great expectation of the people for the culprit to be duly penalised.

By agreeing with the demand by Shafee for the court to acquit the latter’s client, the DPP forfeited his right to appeal against such a verdict. In other words there is no more opportunity for the NFC’s boss to be retried for the same offences as the principle of double jeopardy has duly kicked in.

On the other hand, if the DPP had maintained his stand that the court should have only granted DNA, the door to reopen the case would be still there. Be that as it may, the decision of the AG condoning the request by Shafee for a full-blown acquittal has unnecessarily sparked off a fresh controversy on NFC’s scandals.

The NFC's fiasco, needless to say, had attracted a media frenzy here and abroad. It also reflected the utter dismay and disappointment of any ordinary Malaysian witnessing public money being unashamedly misused and yet no culprit faced the music.

Being the custodian of the people’s trust in bringing all the perpetrator of crimes to book, the AG should have not taken his constitutional and prosecutorial duty lightly.

To his discredit, the AG, without any sense of guilt, proudly told all Malaysians that he had to drop all the charges against the NFC’s boss due to lack of evidence. I must say that his reason is mind-boggling.

If at all there were indeed insufficient evidence to indict the NFC’s chairperson, why would the AG have preferred the charges against the accused in the first place? You simply don’t charge the accused when you are not armed with solid evidence.

You don’t tell the people that you had started the trial and called the witnesses, vehemently objected to the accused’s application for dismissal of charges and suddenly drop the charges due to insufficient evidence.

Insufficient evidence implies weak or lackadaisical investigation by the police. When it comes to public interest cases such as the NFC scandal, people would have expected thorough investigations from the investigating agency.

In Parliament, it was revealed that in 2015 the budget for police investigation was slated for almost RM500 million. With such a huge amount of money from the public coffers, we would have expected the police investigation on NFC’s scandal to be top-notch, leaving no stone unturned.

It is now puzzling that the whistleblower of ‘cowgate’, YB Rafizi Ramli, is still facing trial in court on charges related to NFC. On the other hand , the person who was responsible to safeguard the NFC’s money has been released by the court - not because he won the trial but due to the AG’s decision not to proceed with the trial!

MOHAMED HANIPA MAIDIN is a lawyer and the MP for Sepang, as well as chairperson of Parti Amanah Negara’s legal bureau (Kanun).