The Malaysian Insight

THE High Court could withdraw the abetment charge against former 1MDB CEO Arul Kanda Kandasamy should he be compelled to give evidence for the prosecution in the Najib Razak trial over audit tampering, his lawyer said.

N. Sivanathan said this was because Section 63 of the Malaysian Anti-Corruption Commission Act, which was cited in court today, contained an indemnity clause for the accused who turned prosecution witness.

“Essentially, it allows the prosecution to call an accused person to become a prosecution witness, and once he concludes his evidence, he’s given full indemnity from any action against him, not just here, but (also) any other matter with regard to what evidence he has given,” he told reporters after today’s proceedings.

The lawyer said that as a co-accused, his client cannot be compelled to give testimony that would incriminate himself.

“If in the event the court was to allow it, then our position would be that at the conclusion of submitting his evidence, the charge must be withdrawn against him.

“This is on the basis that you cannot be calling for defence of an accused who gives evidence against himself.

“If he does give evidence then it should follow that the charge be withdrawn.

“What about his right to silence which is a mandatory right in criminal law? How can he maintain silence if he has to give evidence?” the lawyer said.

Sivananthan added this was possibly the first time in living memory Section 63 was cited in court.

Section 63 states that the person required to give evidence shall be entitled to receive a certificate of indemnity under the seal of the court stating that he has made a true and full discovery of all things as to which he is examined, and that such certificate shall be a bar to all legal proceedings against him in respect of all such things.

Senior deputy public prosecutor Gopal Sri Ram told the Kuala Lumpur High Court this morning that Attorney-General Tommy Thomas will be writing under Section 63 of the Malaysian Anti-Corruption Commission Act to call Arul Kanda to give evidence on for the prosecution. 

“We will be addressing the court on this part of the case at the appropriate stage,” Sri Ram said.

Najib’s lead defence counsel Muhammad Shafee Abdullah then informed the court he would file a submission to challenge the constitutionality of the matter.

Najib is accused of abusing his position to expunge parts of the 1MDB audit report in 2016 before it was tabled to the Public Accounts Committee (PAC) to protect himself from criminal action.

Arul Kanda is charged with abetting Najib in tampering with the report to protect the latter.

Hearings commenced today until November 29 and on January 13 to 17. The prosecution is expected to call about two dozen witnesses.

Three witnesses were called to the stand today. They were Prime Minister’s Department (Parliamentary Affairs) secretary Daman Huri Nor; Prime Minister’s Department accountant Natasha Rahimah Haryati Mohamad; and deputy registrar at the Registrar of Companies Malaysia Muhamad Akmaludin Abdullah.

They testified on Najib’s scope of duty as prime minister and finance minister, that he was paid about RM50,000 monthly as the prime minister from 2009 to 2018, and that he received a special RM1 million payment when he stepped down as prime minister after the May 9 polls last year.

Akmaluddin testified that the Terengganu Investment Authority was incepted on February 26, 2009 and renamed 1Malaysia Development Bhd on September 25, 2009.

The witnesses have previously testified at one of Najib’s two ongoing trials over corruption at SRC International and at 1MDB.

Earlier today, Shafee requested for another adjournment to allow him to go over the amended charge with his client.

It took nearly 30 minutes in court this morning to read out the amended charge, which contained six additional pages of appendices.

Shafee said Najib could not have fully understood the amendments nor properly “appreciated” their import.

“We’ve got three fronts to take on instead of one. Our time is limited,” said Shafee of the work in store for the defence team, which is currently undertaking three of Najib’s ongoing criminal trials.

“I can understand the difficulties your team is facing,” said presiding judge Mohamed Zaini Mazlan. 

“But I have to balance it with the need to proceed the cases in my court as well,” he said before denying the adjournment request.

The judge, however, allowed for daily hearings to proceed past lunch to end at 2pm. He also left Fridays free for the defence to attend to other cases. – November 18, 2019.