KUALA LUMPUR: Legal experts believe that discharging and acquitting Tan Sri Muhyiddin Yassin of four charges of abuse of power linked to the Jana Wibawa programme does not mean he did not commit any offence.
This, they said, was because the acquittal was merely due to a defective charge.
However, a continuous defective charge up to the Federal Court could bar prosecutors from charging the former prime minister under the same offence again.
Lawyer Sivaraj Retinasekharan said the prosecution team has to win in the higher courts to see the Jana Wibawa case be brought to justice, as the court had ruled a discharge amounting to an acquittal (DAA) to Muhyiddin.
Sivaraj said a DAA meant that if the prosecution fail in their case to charge Muhyiddin with using his position as then prime minister and Bersatu president to ask for bribes under Section 23(1) of the Malaysian Anti-Corruption Commission (MACC) Act 2009, then he could not be charged under the same offence again.
"It means the person cannot be charged for the same offence again. So it will be prejudicial to the prosecution. It takes away the rights of the Attorney-General (AG) under the Federal Constitution.
"The prosecution would not have charged (Muhyiddin) without any evidence. Now that the judge has given a DAA, it shows 'mala fide' or bad faith on the prosecution. It goes to say that the prosecution only charged Muhyiddin to tarnish his reputation, and to malign and slander him ahead of the state elections."
Sivaraj questioned why the prosecution did not amend the charges when they knew the defence team wanted to put in a preliminary objection.
He also said the judge should have just given a discharge not amounting to an acquittal (DNAA), which is usually given in cases where witnesses have not been called.
Yesterday, Muhyiddin Yassin was discharged and acquitted on all four charges of abuse of power linked to the Jana Wibawa programme.
High Court judge Datuk Muhammad Jamil Hussin struck out the case, ruling that all four charges were defective and in bad faith. The judgement was made on two grounds; lack of details in the charges, and that the accused was charged on offenses unknown to the law.
On the grounds of insufficient details in the charges, he said all four charges did not contain details of how the offenses were committed, as stipulated under Section 154 of the Criminal Procedure Code.
These charges include that of Muhyiddin asking RM200 million as a bribe from Bukhary Equity Sdn Bhd at the Prime Minister's Department Complex in Federal Government Administrative Centre, Putrajaya between Feb 8 and Feb 25, 2021.
Muhyiddin was also accused of committing the same offence at the same location, by asking RM32.5 million from Nepturis Sdn Bhd, Mamfor Sdn Bhd and Azman Yusoff for a bribe for the party between March 1 to August, 2020.
Since a defective charge had led to the discharge and acquittal, Sivaraj said the prosecution should have brought in veterans currently in private sector such as Tan Sri Shafee Abdullah and Datuk Geethan Ram Vincent, who are experienced in dealing with such cases.
"Let the big boys get involved. We're not saying that the prosecutors are not good enough, but you need some of these fellows who are experienced. They won't even ask you for fees. They're going to do it as a service. At least the charge would have been framed very carefully."
On Tuesday, Umno Supreme Council member Isham Jalil called on the Attorney-General's Chambers to file an appeal against Muhyiddin's acquittal in the RM200 million corruption case involving the Jana Wibawa programme.
Isham said the High Court decision could set a precedent for ministers to seek bribes from contractors or companies for government projects, and that the reason for the acquittal given by the court is that it was supposedly not wrong according to the Malaysian Anti-Corruption Commission Act.
Lawyer Datuk Geethan Ram Vincent said
Muhyiddin's acquittal was only a technical issue relating to the charge and not in relation to the offence. He said one of the most important principles of criminal law and justice is that the offence imputed must be positively and precisely stated, so the accused may know with certainty what he is charged, and be prepared to answer the charge.
"In my opinion, the Court held that the charges were groundless. Not all charges, but only four. He is still facing three other charges.
"For the four charges, Justice Datuk Muhammad Jamil Hussin said the charges did not clearly disclose any offence known to law, and were not sufficiently clear to enable Muhyiddin to prepare his defence.
"Therefore, it was not that Muhiyiddin did not commit an offence or that what he did was right and allowed in law. The problem is the charges were defective."
He added that since the AG is appealing against the decision, the matter in relation to Jana Wibawa has not ended.