THE Federal Court ruling today requiring those charged with a crime to give their defence statements before trial, violates the right against self-incrimination and the presumption of innocence until proven guilty. 

A five-judge panel led by Chief Justice Raus Sharif today had ruled that a section of the Malaysian Anti-Corruption Act 2009, requiring a defence statement ahead of an accused’s trial, was valid.

But lawyers said the ruling violated fundamental principles that guaranteed fair trials.

“With respect, I disagree with the decision of the Federal Court today,” said Lim Wei Jiet, deputy co-chairperson of the Malaysian Bar’s constitutional law committee

“The right to life under Article 5 (of the Constitution) and the equality provision under Article 8, read widely in the context of criminal proceedings ­ include the right of an accused to ‘equality of arms’ (a fair trial) and the concept of innocence until proven guilty,” Wei Jiet said. 

Today’s ruling overturned a Court of Appeal ruling in August that Section 62 of the Malaysian Anti-Corruption Commission Act was unconstitutional, in a setback for Penang Chief Minister Lim Guan Eng’s legal battle against charges of corruption over a bungalow purchase in 2015.

Wei Jiet said the prosecution could adduce further evidence throughout the trial under Section 51A(3) of the Criminal Procedure Code.

“But under Section 62 of the MACC Act, it appears that the accused (Guan Eng) is precluded from doing so. 

“Hence, the fight between the prosecution and defence would be on an unequal playing field – violating the ‘equality of arms’ principle. 

“This is not only unconstitutional, but is against the hallmark of our criminal justice system and international conventions,” Wei Jiet said. 

The appellate court, in its August ruling, had found that requiring an accused to disclose his or her defence statement to the prosecution before trial violated a person’s right to a fair trial, which was a constitutional guarantee.

In his judgment today however, Raus said Section 62 was “constitutional” and not ultra vires Articles 5(1) and 8 of the federal constitution.

Raus said he agreed with the argument by the deputy public prosecutor that an accused could submit further documents after the trial began under the Evidence Act.

The DPP, Awang Armadajaya Awang Mahmud, had told the court today that Section 62 of the MACC Act did not prevent a defendant from tendering evidence during trial.

However, today’s ruling would mean those accused of a crime remain vulnerable to prosecution as they are legally compelled to give testimony that could incriminate them.

“I will need to await for the full reported judgment before proper comment,” Hanif Khatri Abdullah, lawyer for former prime minister Dr Mahathir Mohamad said when contacted today. 

“But at a first glance, this decision will run foul to the golden principle entrenched in our criminal jurisprudence: That every accused has the absolute right to remain silent throughout his prosecution, until at the end of the prosecution case, when the court makes a ruling if the prosecution has established a prima facie case for the accused to answer.”

“Only then the accused has to make a choice whether to still maintain the right to remain silent and take the risk of being convicted or to give his evidence in defence of his case,” he said. 

Today’s case stems from a charge last year against Guan Eng over the rezoning of agricultural land in Balik Pulau to be used for public housing, which was said to benefit the plot’s owner, Magnificent Emblem, a company linked to the Penang chief minister’s former landlady, Phang Li Koon.

The charge, under Section 23 of the MACC Act, provides for imprisonment of up to 20 years and a fine of up to five times the sum or value of the bribe, or RM10,000, whichever is higher, upon conviction.

Guan Eng, who is also DAP secretary-general, faces a second charge over his purchase of the Jalan Pinhorn bungalow for RM2.8 million, allegedly below the market price of RM4.27 million, from Phang on July 28, 2015.

The charge, under Section 165 of the Penal Code, provides for a jail term of up to two years or a fine, or both, upon conviction.

Phang, a businesswoman, is also facing charges over the bungalow sale. – December 14, 2017.