Najib vs Datuk Harun Idris: Affection of a Saudi donor does not make Najib less culpable;innocence must be proven in court

by Ganesh Sahathevan 

" Section 50 of the MACC Act deems a corrupt intent of the giving or receiving of gratification unless the contrary is proven"

Bernama has reported that  Prime Minister Najib Razak has again justified some USD 681 million  discovered in his personal account  as being a donation from an unnamed Arab, which he used to further the interests of  UMNO,the party which he heads:

Prime Minister Najib Abdul Razak has stressed that the donation of RM2.6 billion deposited into his account is neither from a public fund nor the government's strategic investment company, 1MDB.

He said the matter had already been verified by the MACC which had also found the donors.

"I have not committed any offence or malpractice, this has been explained at the Parliament by the deputy prime minister (Ahmad Zahid Hamidi).

"The donors have been verified and found by the MACC and the commission has also obtained their statements," he said in an interview with TV3 tonight in conjunction with the Umno AGM.

Asked why the funds were deposited into his account, the prime minister explained that it was the donor's wish and the donation was made in a personal capacity.

He said that the Bank Negara was notified when the account was created.

"So, there is no intention at all to cheat or to commit an offence because Bank Negara had been notified about the existence of this account.

"But do not be confused. The account is in my name, but it is not like a personal account. And I am sure that once the investigation is completed, the truth will prevail," he said.

The MACC today confirmed sending its officials to the Middle-East to meet with the RM2.6 billion donor.

Unfortunately for Najib the Malaysian Anti-Corruption Commission Act 2009 (“MACC Act”) defines gratification very broadly and includes donations.An explanatory note published by  the prominent Malaysian law from Skrine & Co ( whose founding partners  included his uncle, former Prime Minister Tun Hussein Onn, and of which his cousin and current Minister for Defence Hishamuddin Hussein Onn  was also a partner) puts the matter of donations as gratification quite clearly:

Donations to political parties

In recent times, there has been increasing practice of companies providing donations to political parties in Malaysia. Although political donations are not specifically covered by any law in Malaysia, particular care must be taken in ensuring that such donations are not construed as an inducement or a reward for doing or forbearing to do any act as this would fall within the general prohibitions of the MACC Act. Further, Section 50 of the MACC Act deems a corrupt intent of the giving or receiving of gratification unless the contrary is proven.

That deeming provision and the matter of Datuk Harun Idris which was decided almost 40 years ago ,taken together, means the "donation" explanation can provide little if any defence. Even if it is a defence, the MACC Act provided that it is a mater that must be proven in ocurt. Explanations in private, via the media, or in any other forum, including the UMNO General Assembly, do not matter. The MACC has no choice but to lay charges.After all , Najib and the MACC agree that the facts of the matter are not in dispute.

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Saturday, August 8, 2015

Najib vs Datuk Harun Idris-40 years on which way will it swing.

by Ganesh Sahathevan

The prime minister and Umno president was reported as saying that he had taken the money on behalf of the party, and that it was not used for personal gain
http://www.themalaysianinsider.com/…/najib-says-macc-cleare…
But then see:
Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 High Court, Kuala Lumpur (Raja Azlan Shah J).
Summary :

The accused was charged with three charges of corruption. It was alleged that the accused as Mentri Besar, Selangor: (a) solicited the sum of RM250,000 for UMNO as an inducement to obtain the approval of the Executive Council in respect of an application for a piece of state land; (b) being a member of a public body accepted for UMNO the sum of RM25,000 as an inducement to obtain such approval; (c) accepted for UMNO the sum of RM225,000 as an inducement to obtain such approval. It was also alleged that the accused was a member of a public body, namely, the government of Selangor, or alternatively, that he was an agent of the Ruler of the State of Selangor.
Holding :
Held: (1) the accused as Menteri Besar was a member of a public body, that is, the government of Selangor; (2) on the facts of this case, the accused did solicit for UMNO a gratification of RM250,000; (3) the circumstances in which the gratification was solicited gave rise to the inference that it was solicited corruptly; (4) the accused solicited the gratification as an inducement to obtain the approval of the Executive Council in respect of the application for the land; (5) the facts showed that the accused accepted a gratification from the Hongkong and Shanghai Bank of RM25,000 through Haji Ahmad Razali at the airport on or about 16 August 1972 and that he on or about 27 March 1973 accepted from the Hongkong and Shanghai Corp a gratification of RM225,000 in his office in Kuala Lumpur; (6) the accused accepted the gratification of RM25,000 and RM225,000 as an inducement to do an official act in connection with the bank's application for alienation of the land; (7) on the evidence, the prosecution had proved its case in relation to all three principal charges, which if unrebutted, would warrant the conviction of the accused; (8) the accused did not rebut the evidence for the prosecution and on all the evidence considered as a whole, the charges against the accused have been proved beyond reasonable doubt.
Digest :
Public Prosecutor v Datuk Haji Harun bin Haji Idris (No 2) [1977] 1 MLJ 15 High Court, Kuala Lumpur (Raja Azlan Shah J).