©The Malaysian Insider (Used by permission)
BY JENNIFER GOMEZ
It will not be easy for the prosecution to prove that lodging police reports over alleged wrongdoing in 1Malaysia Development Bhd (1MDB) is an attempt to sabotage the economy, criminal and constitutional lawyers said.
In response to charges brought against former Umno branch leader Datuk Seri Khairuddin Abu Hassan and his counsel Matthias Chang yesterday, criminal lawyer New Sin Yew said sabotage would mean that both men intended to cause harm for the benefit of of foreign powers or organisations.
The public prosecutor would also have to prove the identity of the alleged foreign powers, the exact actions that were deemed harmful, and how such actions amounted to sabotage of the economy and the financial and banking systems.
"Lodging reports on wrongdoings is in itself lawful and in the public's interest. Doing what is lawful cannot be reasonably construed as attempting to commit sabotage," New (pic, right) told The Malaysian Insider.
Khairuddin and Chang were charged under Section 124L of the Penal Code for attempted sabotage of the economy and the financial and banking sectors, which carries a jail term of up to 15 years upon conviction.
The charge for attempting economic sabotage also relates to troubled 1MDB, as Khairuddin had lodged reports in several countries against the state–owned firm.
Their detention, however, is under the Security Offences (Special Measures) Act 2012 (Sosma), meant to address acts of terrorism and which allows for detention up to 28 days without the need for a court order.
Constitutional law expert Syahredzan Johan said Section 125L of the Penal Code is classified under Sosma as a "security offence", thus allowing the preventive detention law to be invoked.
He added that the authorities and the prosecution need not prove or establish in court the elements of the offence to use Sosma.
"To arrest under Sosma, they can just say that they are investigating under a 124L Penal Code.
"To invoke Sosma when a person is charged, they just need to charge the person under 124L, for example, they do not need to satisfy the court at that stage of the elements of the offence," he added.
However, Syahredzan (pic, right) said that at the trial itself, the prosecution would still need to prove its case in order to secure a conviction.
The prosecution must establish that Khairuddin and Chang had either committed an act or omission intending to cause harm for the interests of foreign powers or foreign organisations, or an act of harm to premises or utilities used for national defence, or to the maintenance of essential services, he said.
Going by the charge, the prosecution would likely aim to establish that both men had intended to cause harm to essential services, says Syahredzan.
"I think it will be difficult for them to establish the links between the reports lodged by the two and harm to banking and financial services.
"I personally do not see how lodging reports against 1MDB can amount to intending to cause harm to banking and financial services," he added.
Criminal law expert Amer Hamzah Arshad (pic, left) said the charge sheet appeared to show that the prosecution was relying on the Penal Code section that defined "essential services" to include among others, the banking and finance sector.
"Having said that, one may argue that the charge against the two of them is defective for want of cogent and material particulars, for instance, for failing to show the nexus between the acts of lodging reports to international enforcement agencies and the alleged harm to the local banking and financial services.
"On the face of it, such particulars must be clearly spelt out," Amer told The Malaysian Insider.
He said that another pertinent issue was whether Sosma should be used as part of the procedural and evidentiary laws in order to try Khairuddin and Chang.
While Section 2 of Sosma suggests that the charge against both men was a "security offence", Amer said there were concerns as to whether the allegation fell within the parameters of Article 149 of the Federal Constitution.
Article 149 allows Parliament to legislate laws against subversion and actions prejudicial to public order, notwithstanding that some provisions in the laws may be inconsistent with fundamental rights.
"One must always remember that Sosma is a creation of Parliament, and the Federal Constitution is the supreme law of the land.
"Sosma was legislated within the confines of Article 149 of the Federal Constitution, and therefore Sosma's interpretation and application cannot exceed the scope and parameters of Article 149 of the Federal Constitution.
"In short, there are numerous issues which could be raised against the charge and there are various avenues as to how one could mount challenges against it," he added. – October 13, 2015.