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Malaysian Bar criticises AGC and MACC amid Zahid Hamidi trial controversy

The Malaysian Bar says the Attorney General’s Chambers (AGC) has tarnished its own reputation and credibility as the prosecuting party, and that of the Malaysian Anti-Corruption Commission (MACC) as the investigating body, when it applied for a discharge not amounting to an acquittal (DNAA) “at such a late juncture” after a prima facie has already been established in the corruption trial of Malaysia’s Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi.

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MALAYSIA: The Malaysian Bar says the Attorney General’s Chambers (AGC) has tarnished its own reputation and credibility as the prosecuting party, and that of the Malaysian Anti-Corruption Commission (MACC) as the investigating body, when it applied for a discharge not amounting to an acquittal (DNAA) “at such a late juncture” after a prima facie has already been established in the corruption trial of Malaysia’s Deputy Prime Minister Datuk Seri Ahmad Zahid Hamidi.

In a statement on Thursday (7 Sept), the lawyers’ association said the media statement issued by the AGC on Tuesday was completely devoid of proper justifications as regards to why it had requested for a DNAA for the deputy prime minister.

“With the DNAA granted by the High Court, Zahid Hamidi’s counsel seized the opportunity to push for an outright acquittal instead of a DNAA. Let us be clear and make no mistake about it: the learned High Court judge had no alternative but to decide on either a DNAA or an acquittal.

“It therefore rings hollow for the AGC to wholly attribute the withdrawal of the case to the High Court and use that as a reason in the media statement, instead of providing a detailed explanation,” said Malaysian Bar president Karen Cheah Yee Lynn.

On Monday (4 Sept), Deputy Public Prosecutor (DPP) Datuk Mohd Dusuki Mokhtar had applied to the High Court for the withdrawal of all 47 charges faced by Zahid, upon receiving instructions from then-attorney general Tan Sri Idrus Harun.

The DPP referred to representations made by the defence in December 2022, saying there is a need for further investigation by the MACC.

Cheah noted that Justice Collin Lawrence Sequerah had lamented that should the prosecution decide in the near future to not proceed with any further charges, then much precious judicial time and a great amount of taxpayers’ money would have been wasted.

“On this note, the Malaysian Bar stresses that the attorney general must take responsibility and be accountable to the citizens of the country; and should the prosecution decide in the near future to proceed with any further charges, then it should avail itself of the process of ‘reinstatement of trial after discharge’ under section 254A of the Criminal Procedure Code, under which Zahid Hamidi’s trial shall be reinstated and continued as if no such DNAA order had been given,” she said.

Cheah noted that in the recent past, there have been cases where criminal charges against certain politicians were dropped by the AGC amidst trial, reportedly following “instructions”, or as a result of representations.

“These cases are classified as ‘high-profile cases’ as they hold national and public interests primarily due to the substantial sums of money allegedly misappropriated by those individuals in positions of power and authority.

“Just to add for good measure, the Malaysian Bar expects that good sense and justice will prevail, and that this unhealthy trend will not continue unabated — especially in the light of the ongoing 1MDB case, the ongoing trial which former Prime Minister Datuk Seri Najib Razak is facing, and his wife Datin Seri Rosmah Mansor’s second corruption case where she is facing 12 money laundering charges and five counts of failure to declare her income to the Inland Revenue Board,” the Bar president said.

Cheah said there must be real political will to carry out a complete revamp of the structure within the AGC where the roles of the attorney general and the public prosecutor must be separated to create true independence in the exercise of prosecutorial powers vested with the public prosecutor, free from any influence of the executive.

“The attorney general can take its advisory role to the government, but the public prosecutor acts as the guardian of public interest and must fulfil its functions and duties entrusted with utmost integrity, free from political influence and bias, to maintain public confidence in the Malaysian criminal justice system,” she said.

The Malaysian Bar noted that the current government had recently announced that it will undertake a comprehensive empirical study within a year before finalising the proposed separation of the AG’s Office from the Public Prosecutor’s Office.

“The Zahid Hamidi’s case has shown all of us that it is increasingly urgent that pivotal changes must take place by 2024 so that our criminal justice system is strengthened to remove prospects and/or appearance of bias in the way politicians are being charged, and in the way charges against them are being withdrawn,” said Cheah.

The prosecution has withdrawn all 47 charges of criminal breach of trust, graft, and money laundering against Zahid. The High Court judge granted a DNAA rather than a full acquittal, meaning the charges could be reinstated in the future.

The decision ends a lengthy trial that lasted almost four years, involving 99 witnesses.

The prosecution cited ongoing investigations as the reason for the DNAA and mentioned a Royal Commission of Inquiry (RCI) related to a former Attorney General’s memoir.

Zahid had previously been acquitted of separate graft charges, and he sent letters of representation regarding those charges to the Attorney General’s Chambers.

On Thursday (7 Sept), the Coalition for Clean and Fair Election (Bersih) criticised Zahid for remarks during a Pulai by-election campaign.

Zahid seemed to link a housing project’s approval to the victory of a Pakatan Harapan (PH) candidate, prompting a police report and allegations of undue influence and bribery.

Bersih called for an investigation, citing violations of election laws and urged Prime Minister Anwar Ibrahim to oversee Cabinet members’ conduct.

They emphasised the need for clear guidelines to prevent the misuse of government resources for campaigning.

The Pulai by-election was triggered by the passing of former Minister Salahuddin Ayub and involves a three-cornered contest.

The campaign period for the by-election commenced on 26 August, setting the stage for a three-cornered contest featuring PH candidate Suhaizan Kaiat, Perikatan Nasional (PN) candidate Zulkifli Jaafar, and independent candidate Samsudin Mohamad Fauzi.

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Civil Society

APHR urges Myanmar’s SAC to halt imminent execution of five democracy activists

The ASEAN Parliamentarians for Human Rights (APHR) has called on Myanmar’s State Administration Council to halt the execution of five democracy activists scheduled for 24 September 2024. APHR cited grave concerns about the death sentences and called for the activists’ unconditional release.

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The ASEAN Parliamentarians for Human Rights (APHR) has called on Myanmar’s ruling State Administration Council (SAC) to immediately halt the scheduled execution of five democracy activists, set to take place on 24 September 2024.

The activists—Zaryaw Phyo (32), San Min Aung (24), Kyaw Win Soe (33), Kaung Pyae Sone Oo (27), and Myat Phyo Pwint—were sentenced to death in a closed-door hearing at Yangon’s Insein Prison on 18 May 2023.

They were convicted for their alleged involvement in a deadly shooting on a Yangon train in 2021, which resulted in the deaths of six police officers.

The attack occurred amid a national wave of armed resistance to the military coup that had taken place earlier in 2021.

The detainees were charged with murder and illegal weapons possession under several laws, including the 1949 Arms Act and the 2014 Counterterrorism Law.

According to Myanmar Now, the sentences were handed down by District Judge Khin Ni Ni Aye of Ahlone Township, where the attack took place nearly two years earlier.

The court sentenced Kaung Pyae Sone Oo to two death penalties under the Arms Act and terrorism charges, while the other defendants received one death sentence and one life sentence each.

APHR Chairperson Mercy Chriesty Barends, a member of Indonesia’s House of Representatives, condemned the verdicts, calling for the unconditional release of the detainees.

“We call upon the SAC to immediately release them and ensure that, pending their release, the detention conditions comply with international standards,” Barends said. She further stressed the importance of access to legal representation, medical care, and contact with family.

The activists’ death sentences were particularly concerning to APHR, as they were issued by the civilian judiciary, rather than a military court, marking the first such case since the military coup in 2021.

APHR Board Member Wong Chen, a Malaysian MP, called the use of the death penalty a means of stifling dissent. “The use of capital punishment as a tool to suppress dissent is unacceptable and must be condemned in the strongest terms,” he stated.

The group also drew attention to the fact that this sentencing comes at a time when more than 100 post-coup prisoners are currently on death row in Myanmar.

The Assistance Association for Political Prisoners (AAPP) reported that 117 individuals arrested following the 2021 coup await execution, and a further 42 have been sentenced to death in absentia. While the regime has commuted some sentences and pardoned political prisoners, the continued use of capital punishment signals a deepening crackdown on political opposition.

Kasit Piromya, APHR Board Member and former Thai MP, noted the broader implications of these sentences. “This marks the first instance of the civilian judiciary, rather than a military tribunal, issuing death sentences since the coup, signalling a disturbing shift in the judicial proceedings in Myanmar,” he said.

The upcoming execution has raised fears reminiscent of the August 2022 execution of four prominent anti-coup activists, including former National League for Democracy (NLD) MP Phyo Zeya Thaw, whose executions marked the first use of capital punishment in Myanmar in decades and sparked global outrage.

APHR Board Member Arlene D. Brosas, a Philippine MP, said that the SAC’s ongoing use of executions represents a “significant setback” in peace efforts.

“These executions show the absence of political will from the SAC to implement the ASEAN Five-Point Consensus meaningfully,” she added.

APHR continues to advocate for the unconditional release of all political prisoners in Myanmar and urges the international community to increase pressure on the SAC to cease its human rights violations.

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Civil Society

RSF condemns Malaysian court ruling against British journalist Clare Rewcastle Brown

Malaysia’s Federal Court rejected Clare Rewcastle Brown’s appeal against a defamation ruling, leaving her liable for damages over RM 435,000. RSF condemned the decision as an effort to silence the journalist, who is known for reporting on corruption scandals.

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Malaysia’s Federal Court has dismissed British journalist Clare Rewcastle Brown’s appeal against a defamation ruling, leaving her liable to pay damages exceeding RM 435,000 (US$103,325).

The defamation suit, which RSF (Reporters Without Borders) describes as part of a broader effort to silence journalists reporting on corruption, relates to a statement in Rewcastle Brown’s 2018 book, The Sarawak Report – The Inside Story of the 1MDB Expose.

The journalist has faced legal challenges ever since, including both civil and criminal cases.

Rewcastle Brown, known for exposing Malaysia’s 1MDB financial scandal, was accused of defaming the Sultanah of Terengganu, the wife of a senior political figure.

The defamation suit stems from a misidentification error in the book, which wrongly stated that the Sultanah, rather than the Sultan’s sister, was connected to a businessman involved in the scandal.

Rewcastle Brown quickly corrected the mistake and issued an apology in 2018. Her legal team has argued that the error does not constitute defamation or criminal libel.

The Sultanah had initially sought RM 100 million in general damages, but the court ultimately awarded a much smaller sum of RM 300,000 (US$71,230) in damages, along with RM 135,000 (US$32,095) in legal costs. Additional fees are expected.

The Federal Court’s decision on 10 September 2024 closes Rewcastle Brown’s legal avenues for appeal in the civil case.

Reporters Without Borders has condemned Malaysia’s handling of the case, asserting that it is intended to intimidate other journalists from reporting on corruption.

Fiona O’Brien, UK Bureau Director of RSF, commented: “This case should never have made it to court. The accusations of defamation are nonsensical. The underlying agenda appears to be to silence Rewcastle Brown and warn other Malaysian journalists away from reporting on corruption.”

In a separate criminal case, Rewcastle Brown was sentenced in absentia to two years in prison in February 2024. She continues to appeal the criminal charges but has faced significant challenges in defending herself. The British government has not commented publicly on her case.

RSF also noted that Malaysia, once ranked 73rd in the World Press Freedom Index, has dropped to 107th in 2024, amid rising political instability and a pattern of defamation suits against journalists.

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