Malaysia... truly a ‘do’ nation!

Cheng Poh Heng | .

After the advent of Malaysia “Boleh (can)”, which earned our nation of the best and the brightest, the moniker “Bolehland”, the Prime Minister and his cabinet of ministerial minions have now outdone themselves with “donation”. Too much had been said, but sadly, nothing had been done, about this so-called “donation” of RM2.6 billion transferred into the Prime Minister’s personal account with AmBank, as confirmed by the Malaysian Anti-Corruption Commission. Hence, we have become “Malaysia…truly a ‘do’ nation!” 

Previously, back in November 2006, the present Minister of Tourism, then Minister in the Prime Minister’s Department, Datuk Seri Nazri Aziz, was lampooned, when he said that “ACA’s hands are tied” and “Money politics are not public transgressions”, although he qualified himself by saying that he “may be wrong”. If this was according to his “under-standing of it”, then he had also completely misunderstood and misconstrued the Anti-Corruption Act 1997. Although he had tabled the Act (or more accurately, the Bill), he had turned the tables on Act 575!

The Anti-Corruption Act 1997 had been repealed and replaced with the Malaysian Anti-Corruption Commission Act 2009, which came into operation on 1 January 2009.

Let us begin with the present Act 694, where in section 3, ‘gratification’ means – (a) money, donation, gift… Therefore, whichever way the spinners turn, they are hopelessly caught in s web of their own belief, which not many Malaysians believe. It is common know-ledge that when a Head of State accepts a gift from another Head of State, such gift is reported and accounted to the Treasury of the former State. Likewise, when a Head of State gives a gift to another Head of State, such gift is from taxpayers of the former State. Such gifts are therefore received or given on behalf of the State, not in the personal capacity of the respective Head of State. Now, the ubiquitous “donation” of RM2.6 billion transferred into the Prime Minister’s personal bank account.

Section 10 and sub-sections (a), (b), (aa) and (bb) of Act 575, which define the offence of accepting ‘gratification’, are replicated from section 3 and sub-sections (a), (b), (i) and (ii) of the repealed Prevention of Corruption Act 1961 (Act 57) (Revised 1971) (“1961 Act”), except for the penalty, which had been enhanced from a fine not exceeding ten thousand dollars or to a term of imprisonment for a term not exceeding five years or both, to a fine of not less than five times the sum of value of gratification or ten thousand ringgit, whichever is higher and imprisonment for a term of not less than fourteen days and not more than twenty years under section 16 of Act 575.

The Supreme Court, in Public Prosecutor v Chan Kit Tong Sally [1991] 1 MLJ 358, held that the definition of gratification in the 1961 Act is wide enough to include the under-counter payment of RM15,000 for the purchase of a low-cost house from a developer. Most importantly, it was also held that the person who corruptly receives such gratification need not be a public officer. The Supreme Court thus restored the conviction, sentence and penalty ordered by the learned Sessions Court judge, which had been set aside by a judge of the High Court. The Supreme Court referred to the case of Lim Kheng Kooi & Anor v R [1957] 199, where “the two accused persons who were charged with corruption and abetment of corruption respectively, were private individuals and they were found guilty under section 3(b) of the earlier Prevention of Corruption Ordinance 1950”. Undoubtedly, the 1961 Act therefore applies to public officers and private individuals alike. Section 10 of 1961 Act makes it very clear as it begins with “Any person who by himself, or by or in conjunction with any other person …” The term “any person” is used inclusively and not exclusively.

Interestingly, the Deputy Public Prosecutor, who appeared for the appellant was none other than the present Federal Court Judge, Honourable Suriyadi Bin Halim Omar, whilst the respondent was represented by the late Christopher Fernando. To his credit, the late Christop- -her agreed that the under-counter payment of RM15,000 was gratification under provisions of the 1961 Act. He however submitted that the under-counter payment was received by the accused for her company, and not for herself. This did not find favour with the Supreme Court judges, who referred to the case of Datuk Haji Harun Bin Haji Idris v Public Prosecutor [1977] 2 MLJ 155, where the accused was found guilty of corruption under the 1961 Act, although the sum of RM250,000 he had received from Hongkong & Shanghai Banking Corporation was not for his own personal benefit, but for UMNO.

If Act 575 applied only to public officers, then those in the private sector are immune from prosecution, which could not have been the intention of Parliament, when Act 575 was passed. Therefore, the Minister’s opinion that “members are immune from action outside the party (for wrongdoings within the party)” is also completely wrong and clearly untenable, as adumbrated above. If this is the case, then public officers being prosecuted under Act 575 could claim that it is unconstitutional, as it violates Article 8 of the Federal Constitution, which provides for equality before the law. An act of corruption, whether committed by a public officer or private individual, is still corruption...pure and simple, unless the Supreme Court was wrong!

Now, wemove on the 2nd spin that RM2.6 billion deposited into the Prime Minister’s personal bank account with AmBank was a “donation” to UMNO by a Middle East donor, as had been continually spun by those are under the spell and dominion of the Prime Minister. Unable to deny that the RM2.6 billion had been transferred into his personal bank account with AmBank, the Prime Minister proclaimed it was not for his personal gain but he was holding the RM2.6 million in trust for UMNO. He also claimed that MACC had cleared him!

Sub-section 25(1) of the Societies Act 1966 provides that every registered society shall have one or more trustees. Whilst sub-section (2) provides that no person shall be appointed a trustee of a registered society if he holds the office of the secretary or the treasurer of that registered society, to avoid a situation of conflict of interests. Under sub-section (3), a trustee shall be appointed at a meeting of the registered society and by a resolution of a majority of the members present and entitled to vote thereat. And finally, sub-section (4) provides that a registered society shall send to the Registrar a copy of every resolution appointing a trustee and such copy shall be signed by the trustee so appointed and by the secretary of the registered society. The fundamental question is did UMNO send to the Registrar a resolution appointing its President as its trustee? It would be interesting how the brigand of charlatans and sorcerers are going to spin this one!

UMNO, as a registered society (political party), is subjected to sub-section 7(3)(e) of and Schedule I of Constitution and Rules of Societies, which provide that:

(3) The Registrar shall refuse to register a local society where—

 (e) the constitution or rules of the society do not contain provisions for all matters set out in Schedule I to this Act or if the society is a mutual benefit society, matters set out in Schedule  II or any other matters which the Registrar may reasonably require.

 UMNO in conformity with items 1(h), (i), (j) and (k) of Schedule I shall have such the following provisions in its constitution, that is:

1. (h) the sources from which the society shall derive its income, including the rates and method of payment of such entrance fees and periodical subscriptions as may be decided upon;

    (i) the authority or authorities for expenditure from the funds of the society;

    (j) the keeping of accounts of the income and expenditure of the society and the publication of such accounts to its members annually;

   (k) the appointment of one or more auditors.

Now, many of those minions are clamouring over each other to say that they knew about the donation of RM2.6 billion to UMNO. If this was so, was this humongous sum of RM2.6 billion reflected in UMNO’s audited accounts and annual return for the year 2013 according to sub-sections 26(1) and (2)?  The UMNO President may have also breached section 53 for misuse of money and property of UMNO. Upon a complaint by an UMNO member, the UMNO President shall also be subject to prosecution of, or civil proceedings, against him.       

It is imperative that the Prime Minister cum UMNO President comes clean on this pre -posterous “donation” of RM2.6 billion, otherwise, apart from being a ‘do’ nation, it would also be “Malaysia...truly a ‘dodo’ nation!”

The writer is the contributing editor of Anti-Corruption Act 1997 (Act 575), The Annotated Statutes of Malaysia – Issue 2003” and Malaysian Anti-Corruption Commission Act 2009 (Act 694) – Issue 2010, published by LexisNexis Sdn Bhd. This article deals with these two Acts and the Societies Act 1966. The Exchange Control Act 1953, Central Bank of Malaysia Act 2009 and Financial Services Act 2013 are not therefore not covered. 

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