KUALA LUMPUR, March 5 — Toh Puan Na’imah Abdul Khalid, the wife of former finance minister Tun Daim Zainuddin, has filed an application to ultimately challenge the validity and constitutionality of a legal provision that was used to charge her for alleged failure to declare her assets to the Malaysian Anti-Corruption Commission.
News portal Malaysiakini reported Na’imah as having filed the application to refer this matter to the High Court to decide if Section 36(2) of the Malaysian Anti-Corruption Commission Act infringes her constitutional rights.
On January 23, Na’imah was charged under Section 36(2) and had pleaded not guilty.
Na’imah’s lawyer Rajesh Nagarajan confirmed to Malay Mail that the application was filed on March 1 (last Friday) as part of the criminal case at the Sessions Court in Kuala Lumpur, where his client is facing the Section 36(2) charge.
Section 36(2) covers the offence of wilfully neglecting or failing to comply with the terms of a notice issued by the MACC to give a written statement on oath or affirmation on their assets.
Section 30(5) states that a person who was given a written notice — by the MACC ordering them to give a written statement on oath or affirmation for MACC’s investigations — is required to truthfully disclose all information required under the notice within his knowledge or which is available to him, and that this person shall not refuse to furnish or disclose the information for the reason that “it tends to incriminate him or his spouse”.
In other words, Section 36(2) is on the failure to give a written declaration of assets to the MACC, while Section 30(5) states that a person required to declare information to the MACC cannot refuse to give the information to avoid incriminating themselves or their spouse.
Rajesh explained that if the High Court agrees with his client and rules that the MACC Act’s Section 36(2) and Section 30(5) go against the Federal Constitution, this would result in the charge against Na’imah failing.
“We want the Sessions Courts proceedings to be stayed pending determination of this issue, because if the court is in agreement in our averment that Section 36(2) and Section 30(5) is unconstitutional, that means the entire charge against my client will automatically fail,” he said to Malay Mail.
Rajesh confirmed this was the first time that these two provisions in the MACC Act were being challenged in court, as the provision that was challenged in Lim Guan Eng’s trial for example was Section 62 of the MACC Act.
Under Na’imah’s application filed last week, she is seeking for the Sessions Court to refer two constitutional questions to the High Court and for the Sessions Court to temporarily pause all proceedings in her criminal trial involving the charge of her alleged failure to disclose her assets to the MACC.
The two questions that she wants to refer to the High Court to be decided on are whether Section 30(5) and Section 36(2) violates a person’s right to a fair trial and right against self-incrimination or the right to not be compelled to produce incriminating evidence to be used in a proceeding against them, and whether these would mean these two MACC Act provisions go against the Federal Constitution’s Articles 5 and 8 and are unconstitutional and void.
Rajesh argued that these two MACC Act provisions infringes a person’s right to silence and said this goes against the Federal Constitution.
Na’imah’s trial at the Sessions Court before judge Azura Alwi has yet to start, and her criminal case is scheduled for mention on March 22.
Rajesh confirmed that there are no court dates scheduled yet for his client’s application to challenge the two MACC Act provisions.
On January 29, Daim himself was also charged in court with the same alleged offence under Section 36(2) and had also pleaded not guilty. His case is also before Sessions Court judge Azura Alwi and his case is also scheduled for mention on March 22.
