THE PEOPLE VERSUS NAJIB: IF TOMMY TRIES TO SHOW MERCY, THE PEOPLE WILL SACK HIM & HARAPAN

THE stage has been set for the greatest criminal trial in the history of this country: Public Prosecutor versus Najib Razak.

A unique first – an outgoing prime minister, Datuk Seri Najib Abdul Razak, docked for a litany of alleged crimes. Ranging from stealing or corruptly taking EPF monies, and receiving the proceeds of illegal activities. Seven charges in all.

Supported by evidence of the receipt of monies in Najib’s personal Jalan Raja Chulan AmBank account. The sums add up to a huge RM126 million.

The charges are couched in rather technical legal jargon. Bewildering sometimes, even to lawyers, let alone ordinary folks.

So let me try to untangle the knots.

Penal Code charges

First, the charges under the Penal Code, the main law on crimes. There are three counts against Najib of committing criminal breach of trust. This is when property (including money) is entrusted to a person and he swipes all or even some part of it. Najib is said to have taken monies belonging to a company called SRC International (SRC). This was in December 2014 when he had power over these monies as prime minister, finance minister and adviser of SRC.

SRC, established by 1MDB in January 2011 ostensibly to supply the nation’s coal for its long-term needs, is funded by government grants. In August 2011, SRC received RM2 billion from EPF as a loan guaranteed by the government.

In February 2012, SRC’s shareholding by 1MDB was transferred to the Ministry of Finance Incorporation headed by Najib.

It was from this and other monies that Najib stands accused of misappropriating.

To make the charge stick, the prosecution will have to prove that:

> He was an agent.

> He was entrusted with the monies in this capacity, or had control over it.

> That he appropriated that money for himself.

The prosecution bears the burden of proving all these elements. To prove that he received the monies, which were entrusted to him, in the capacity of an agent with a duty to pay it over to the rightful body (here, SRC).

The gist of the offence is “dishonest intention” to retain the money or any part of it – even temporarily.

Failure to account for money in an accused’s personal account, or giving a false explanation of what he has done with the money, could well lead to a guilty verdict.

Dishonest misappropriation can be proved directly (example by showing that the money was paid into the account of the accused); or indirectly by circumstantial evidence – such as failure to show what happened to the money coupled with other circumstances.

It is then for Najib to prove his defence. And to show that the money was spent (or accounted) for a legitimate expenditure consonant with his duty. It will then be for the prosecution to prove that the evidence of that expenditure is false.

Corruption charge

The charge under the Malaysian Anti-Corruption law is that Najib, as prime minister and finance minister, agreed on behalf of the government, at the Putrajaya prime minister’s office, to give a government guarantee for loans of RM4 billion to SRC.

For that, he took for himself RM42 million.

This charge – under Section 23 of the MACC Act – makes it an offence for any officer of a public body who uses his office or position to secure gratification, whether for himself, his relative or associate.

The prosecution will have to prove that:

> He was a member of a public body.

> In that capacity, he solicited for the money (the gratification).

> He received the money.

So long as he makes any decision, or takes any action in relation to any matter in which he has an interest, the law presumes that he used his office or position for the gratification. It is then for the accused to disprove this presumption.

Anti-money laundering

This is an offence with regard to the proceeds of an unlawful activity. Every such activity is covered. So, for example, a person commits an offence if he “acquires, receives, possesses, disguises, transfers, converts, exchanges, carries, disposes of or uses proceeds of an unlawful activity or instrumentalities of an offence”.

It is this offence for which Najib is charged. He stands accused on three counts of receiving proceeds of illegal activities totalling RM42 million. These were transferred electronically into his personal AmBank account.

Punishment

Dramatic news coverage screamed that Najib could if found guilty, be jailed for 125 years. This is not quite the case. Usually, jail terms overlap. And the maximum imposed for any one of these offences will be the term that the accused will have to serve. In other words, the jail terms do not run consecutively but concurrently.

The punishment for these offences range from a maximum of 15 years’ jail for anti-money laundering to 20 years for criminal breach of trust as well as for the corruption offence. Fines can amount to a minimum of five times the sum or value of the gratification or the money laundered.

All players – the AG’s and defence lawyers – are poised for a battle royale. Expect a hard-fought trial with no quarter given and swords crossed at every possible turn under the watchful eye of judge Nazlan Ghazali.

For the watching public, long awaiting a closure to the 1MDB scandal, let the drama unfold.

– Sundaily

✍ Sumber Pautan : ☕ Malaysians Must Know the TRUTH

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