THERE is no reason why the ongoing case of the RM2.8 million bungalow purchase by Lim Guan Eng should be dropped when this is the best avenue for the finance minister to clear his name.
Observers and legal experts said failure to allow Lim to fight his case in an open court would not only leave his credibility open to question, it could also affect the newly-elected government’s stand in upholding transparency and the rule of law.
Lim, who is facing charges of allegedly using his position as former Penang chief minister to acquire a plot of land and a bungalow well under market value, has maintained his innocence.
Groups within the legal and enforcement fraternities are concerned over the possibility that Lim’s case could be dropped.
His counsel had, on May 21, said they would propose to the new attorney-general (A-G) for the case to be dismissed.
Last month, the Sessions Court here freed former Bank Rakyat managing director Datuk Mustafha Abd Razak and the bank’s former chairman, Tan Sri Abdul Aziz Zainal, of charges of committing criminal breach of trust and abetment, respectively, involving nearly RM15 million, after the A-G Chambers (A-GC) withdrew the case, which revolved around the biography of a prominent political figure.
It is understood that the Malaysian Anti-Corruption Commission (MACC), which had built the case and recommended that the two be charged, was not informed or briefed about the decision. It never had the chance to present the A-GC’s decision to the independent Operations Evaluation Panel (PPO) for scrutiny, as per procedure.
Universiti Kebangsaan Malaysia political science senior lecturer Mohamad Agus Yusoff said a high-profile case like Lim’s should proceed to enable him to clear his name and avoid negative implications on the government and the A-GC for “alleged interference” and accusations of double standards.
“The Pakatan Harapan (PH) government has touted itself as a government that observes the rule of law. This is a promise they made to the people. The trial should proceed, especially since it is already in motion, and seeing how this is a high-profile case,” he told the New Sunday Times.
Former MACC advisory board chairman Tunku Abdul Aziz Tunku Ibrahim shared Agus’ take on the issue, saying that withdrawing the case would lend credence to suggestions that A-G Tommy Thomas’ appointment was a political deal between DAP and Prime Minister Tun Dr Mahathir Mohamad.
“I hope the rumour is not true (withdrawal of the cases), as it would lend credence to the public’s perception that the A-G’s appointment was part of a political deal, where in return for DAP’s support of Dr Mahathir as prime minister, Thomas would use his power to have cases against Lim withdrawn.
“This, especially since the A-GC’s had made a determination (earlier) that there was sufficient evidence obtained by MACC to proceed. Unless new, irrefutable evidence has emerged, it is in the interest of justice and good governance to let the court decide.”
However, Agus said the A-G had the power and the discretion to proceed or withdraw ongoing cases without having to give a reason, or provide any basis for his decision, as stipulated under Article 145 (3) of the Federal Constitution.
Article 145 (3) states that “the A-G shall have power exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence, other than proceedings before a syariah court, a native court or a court-martial”.
Malaysian Bar council president George Varughese said the A-G had previously said he would not participate in the decision-making process in any matter where he was conflicted.
Varghese said he believed any decision on the case, coming from the A-GC’s, would come from the solicitor-general.
He said if there was sufficient evidence to prove the charges, the prosecution should proceed with the trial.
He added that the fact Lim, who is also DAP secretary-general, was in the cabinet, should never be given as a reason for the charges to be dropped.
“The fact that YB (Lim) is part of the cabinet can’t be a reason for the charges to be dropped.”
Varghese, however, said Lim was entitled to make representations to A-G at any stage before the conclusion of the trial for the withdrawal of a charge or reduction of a charge, if there were sufficient reasons to do so.
“In the event the charges are withdrawn, the solicitor-general should explain and give reasons as to why the charges are being withdrawn after having proceeded with the trial in the first place.”
Another legal expert said the accused could appeal to A-G for his case to be dropped if he could argue and prove in his representation, that among others, that it was a case of political persecution or malice or conspiracy, that the case was weak, or that the witnesses were not credible, for instance.
“If A-GC feels that there are loopholes in the MACC investigation, it can recommend to the court for a discharge not amounting to an acquittal and ask the commission to revisit the case; not withdraw it entirely, where Lim could not be charged again for the alleged offences.
“There must be political will, to allow such agencies (like MACC) to carry out their duty. Just let the case take its course. There should not be any suggestions of political manoeuvring.
“Under the previous Barisan Nasional government, MACC recommended for charges to be brought in the SRC International and RM2.6 billion case, but it was rejected by the previous A-GC. But under the new administration, the cases have been reopened,” the expert said, adding that like other accused, Lim should be given his day in court.
Another expert said before PH took over the government, it promised that there would be independence and transparency in its administration.
“It shouldn’t repeat the same mistakes made by the previous government. The former A-G withdrew the SRC International and RM2.6 billion case without giving so much as wiggle room for MACC to do further probing. If the current A-G thinks Lim’s case should be dropped, he should at least give some room for the MACC to manoeuvre,” he said.
Former A-G Tan Sri Mohamed Apandi Ali, who led the prosecution team when Lim, and his alleged accomplice, businesswoman Phang Li Koon, were charged, urged A-GC to continue with the case.
He said court proceedings were almost at the end, with more than 70 per cent of witnesses being called to testify.
He said based on MACC investigation papers, the commission had recommended that Lim be charged, right from the start.
Apandi said Lim’s case was similar to former Selangor menteri besar Dr Mohamad Khir Toyo’s, who was convicted for using his post as menteri besar to acquire properties — two plots of land and a house in Section 7, Shah Alam — worth RM6.5 million, for RM3.5 million from Ditamas Sdn Bhd through its director, Shamsuddin Hayroni.
Apandi said in Lim’s case, over 30 witnesses have been called. Previously, it was reported that 54 prosecution witnesses were expected to testify.
“This is at the tail end of the prosecution's case. It is better to let the court decide. The normal practice would be to let the court decide but the decision is with the public prosecutor, A-G.”
Lim is also charged with gaining gratification for himself and his wife, Betty Chew Gek Cheng, by approving an application by a company, for the conversion of an agricultural land to a public housing zone in Balik Pulau.
Lim had said the trial and the allegations made against him were politically motivated.
“All allegations (made against me) are political attacks by the previous government. Let the process run its course,” he was quoted as saying recently.
The Penang High Court had set 23 days of trial for the corruption and abetment case involving Lim and Phang.
On May 21, the court adjourned Lim’s hearing over the RM2.8 million bungalow deal, to tomorrow.
Justice Hadhariah Syed Ismail approved the application made by Lim’s counsel Ramkarpal Singh, who told the court that the defence was seeking an adjournment as Lim would be sworn in as finance minister at Istana Negara and hence could not be present in court then.