Malicious prosecution happens

Ganesan of GK TV gave 13 reasons of his own in his attempt to rebut the 11 Attorney General's explanation for deciding to not proceed with Zahid Hamidi's Yayasan Akal Budi case with the 47 charges. It is the fourth in his four part series of rebuttal.     

Though this blogger is no lawyer, one can't help but noticed weaknesses in his well-prosed in the most immaculate English arguments. 

Ganesan seemed to be either under hallucination or lost in a utopian dream that all is well and honourable with the professionals and institutions handling judiciary, prosecution, and investigation in Malaysia. 

Ganesan's utopia

Don't tell us he not know Anwar's first liwat case was an outright fix-up. Perhaps he could be excused. This blogger too made the same mistake and realised upon being reliably told 4 named persons involved.

Ganesan did justified his presumptions, but it crossed the helm of prejudice to brush off the RCI, which is an opportunity for Anwar's plan for judicial reform, as red herring.   

However, one should appreciate his effort to compile post GE-14 corruption cases involving politicians to support the need for high level of tranparency and accountability. 

He dare not mention 150 cases withdrawn during Mahathir's return under PH 1.0 government. 

Ganesan painstakingly explained the legal terms and implications of acquital, discharge, DNAA, and DAA, and share his observation DNAA decisions are hardly ever recharged. 

Social media commentator blamed the judiciary and judges in which he defended to the hilt. 

Too bad because MNCs are beginning to have reservation on the integrity of Malaysian judges. 

Untold fact of Zahid's DNAA

Leaked documents of DPP's conclusion on the Zahid's IP concluded the case i s without prima facie, but the puzzling part is the sitting judge decided it exist. 

So much for maximum evaluation test?

This blogger had knowledge that Zahid's case was a rush investigation and prosecution job by Latheefa Koya and Tommy Thomas.

MACC merely did an initial enquiry prior to GE14 but no investigation. A reliable source claimed Zahid explained all the enquiries. 

He revealed voluntarily and seek advise on a certain mistake. MACC advised him and he acted accordingly to rectify.

Actually, the mistake was not unlawful. Thats for this blogger to know, and inquisitive readers to find out. 

Lets just say generally lawyers' understanding and knowledge of corporate, finance and business are elementary. Too many bogus claiming to be corporate lawyers.

Judges' mathematical logic can equally pathetic. There is a more than 2 decade market manipulation case in court for transactions which were only buying and paid for. It takes buying and selling to rig share prices and manipulate market.

Back to Zahid, Mahathir to dissolve UMNO and PPBM to takeover the role. He needed something to threaten Zahid.

Most likely through his agent, Latheefa and Tommy was  directed to dig and if necessary fabricate charges against Zahid. The names of the MACC officers forced to do so are known.

Proving malicious prosecution

Eff what proof Ganesan need to convince him. Observation and experiance is sufficient to conclude there were malafide intention by Mahathir, Tommy and Latheefa to do malicious prosecution. 

To support the notion, Najib and other UMNO leaders have been acquited for several cases. The same for the IPIC case in which a decision is due today and by right, it should be withdrawn. 

Any person of sound mind knows all charges against Najib including the civil lawsuits by 1MDB are politically motivated.

Thanks to Tommy's memoir he revealed on Mahathir. Proving it will be a challenge. This leads to a Sunday column by Jaharbedeen M Yunos:

Selective prosecution vs malicious prosecution

By JAHABERDEEN M. YUNOOS

THROUGH MANY WINDOWS 

The Star Sunday, 10 Sep 2023

Deciphering legal distinctions in Malaysia.

WITHIN the last five years especially, allegations against the Attorney General’s Chambers (AGC) of “selective prosecution” has been hurled by political leaders and a section of society. This allegation suggests that the AGC has been abusing its powers and has been prosecuting selected persons unlawfully. Such allegations have serious consequences, such as undermining faith in the AGC.

At the outset, it is essential to understand the existing confusion in the use of the term “selective prosecution” by both ordinary citizens and, regretfully, by our political leaders too.

Within the Malaysian legal context, two terms often emerge in legal discussions: selective prosecution and malicious prosecution. These terms possess distinct characteristics, intentions, and implications under Malaysian law.

I hope to illuminate the distinctions between selective prosecution and malicious prosecution within the context of Malaysian law, clarifying their unique legal implications.

In a sense, all prosecutions in Malaysia are, and have to be, selective. Selective prosecution pertains to the discretionary decisions made by the AGC and law enforcement agencies to initiate legal proceedings against specific individuals or groups while refraining from prosecuting others facing similar circumstances.

This practice is intrinsic to the legal system, aiming to allocate resources judiciously and prioritise cases of greater severity, evidentiary strength, or public interest. Not every offender can or should be prosecuted. In fact, I would propose to the AGC to not prosecute certain petty crimes and offenders which clearly does not serve the national interest. We have to find a different way to punish such offenders, for example those who steal food due to hunger or poverty.

Hence, the AGC must exercise its prosecutorial discretion wisely and compassionately. It irks me immensely when there is prosecution without compassion, but that is a matter for another column.

A fundamental aspect of selective prosecution in Malaysia is the exercise of prosecutorial discretion. It empowers prosecutors to assess cases, weighing factors such as the sufficiency of evidence, the nature of the offense, and available resources before deciding whether to prosecute.

While selective prosecution is a necessary tool for efficiently managing case loads and focusing on cases of significant public interest, it must comply with legal safeguards.

Selective prosecution should not be grounded in improper factors like race, religion, or political affiliation, as such actions would constitute prosecutorial misconduct and a violation of the accused’s rights as provided for under the Federal Constitution.

However, selective prosecution is never a defence in a criminal trial. The legal fraternity is quietly laughing at the recent accusations by politicians of selective prosecution by the AGC.

 

On the other hand, malicious prosecution is where there is prosecution of someone with malicious intent, knowingly lacking probable cause, and resulting in harm or damage. In essence, malicious prosecution involves the abuse of the legal process to inflict harm, harassment, or injury upon an individual.

So when political leaders and others are alleging malicious prosecution, are they alleging that the AGC is abusing its legal powers? If this is so, then they are allowed to sue for malicious prosecution.

The Federal Court case of Rawther v. Abdul Kareem [1966] 1 LNS 154; [1966] 2 MLJ 201 lays down the elements for the successful prosecution of the tort of malicious prosecution. There are five such elements as summarised below:

> The defendant must set the criminal law in motion against the plaintiff.

> The criminal proceedings terminated in his favour.

> There was no reasonable and probable cause for preferring the charges against the plaintiff.

> The defendant was motivated by malice in doing so.

> The prosecution had caused damage to the plaintiff.

Vazeer Alam Mydin Meera J., in the High Court case of Mohamad Izaham Mohamed Yatim v Norina Zainol Abidin & Ors [2015] 7 CLJ 805 observed that “it is trite that if there is reasonable and probable cause disclosed, then the plaintiff’s claim for malicious prosecution cannot be sustained, even if improper motive is shown. For it is well settled that once there is reasonable and probable cause, the motive for the prosecution is immaterial, even if it is malicious. In such circumstance the lack of bona fides is not an issue,” as Tom Denning Lord Justice stated in Tempest v Snowden [1952] 1 KB 130 at 140: “Even though a prosecutor is actuated by the most express malice, nevertheless he is not liable so long as there was reasonable and probable cause for the prosecution.”

The judge further stated that to allow any and every acquitted person to institute civil proceedings against the prosecutor or the investigating authority, on grounds of the prosecution having failed to prove its case against the accused, would be contrary to public interest and policy.

I would add further that to allow baseless allegations of malicious prosecution to continue against the AGC or any government agencies without having taken out any suit against the AGC or such agencies is akin to criminally defaming the AGC or the agencies. This is something that the new AG may want to ponder.

I will now delve into some of the salient distinctions between these two legal concepts within the Malaysian context:

Firstly, selective prosecution predominantly applies to actions taken by law enforcement agencies and prosecuting authorities. It revolves around the discretionary decisions to pursue legal action against specific individuals or groups. Malicious prosecution involves legal actions initiated by those in authority against others by misusing the legal process with malicious intent.

Secondly, the primary reason behind selective prosecution in Malaysia is administrative and practical. Authorities employ discretion to efficiently allocate resources and prioritise cases with heightened public interest or gravity. In malicious prosecution, the central element is malicious intent.

The individual instigating the malicious prosecution is driven by the desire to inflict harm, harassment, or injury upon the other party, typically for personal reasons and with no probable cause.

Thirdly, selective prosecution entails the lawful exercise of prosecutorial discretion within the confines of Malaysian law. It is an integral part of the standard operation of the legal system. In cases of malicious prosecution, the core issue revolves around the misuse and abuse of the legal process. Legal proceedings were initiated with malicious intent and without probable cause.

Fourthly, in selective prosecution cases, the burden of proof primarily rests on the prosecution or law enforcement to demonstrate that their discretionary choices were made in accordance with the law and without reliance on improper factors.

In cases of malicious prosecution in Malaysia, the burden of proof typically falls upon the plaintiff, who must substantiate all requisite elements, including the absence of probable cause and the presence of malicious intent.

Fifth, challenges to selective prosecution often aim to address concerns of discrimination or unequal treatment and may lead to adjustments in prosecutorial practices or the dismissal of specific cases.

Successful claims of malicious prosecution can result in legal remedies, including monetary damages, intended to compensate the victim for the harm and suffering endured due to unwarranted legal actions initiated with malicious intent.

I hope this clarifies that selective prosecution is a legitimate exercise of discretion by authorities to manage resources efficiently, while malicious prosecution pertains to the wrongful abuse of the legal process, rooted in malicious intent.

Senior lawyer Datuk Seri Dr Jahaberdeen Mohamed Yunoos is the founder of Rapera, a movement which encourages thinking and compassion among Malaysians. The views expressed here are entirely his own.

No political bulls please

Rafizi expressed resistance to Najib's pardon which Khairy sparked the discussion that Zahid's DNAA decision will lead to it.

All (including Rafizi) those involved in fabricating the malicious slander against UMNO leaders, which led to the unfair process in the imprisonment of Najib, are running for cover.

They fear the grave sins commited will be known to the public and get blamed for the peoples' hardship today.

PAS and PPBM Youth intend to make a big fuzz over the AG's withdrawal after the prima facie decision is made by the judge with a Sogo demonstration under the slogan Gerakan Selamatkan Malaysia this Saturday.

A Facebooker asked why there were no noises from activist friends of Marina Mahathir, Bar Council, Latheefa Koya, Tommy Thomas, Gani Patail, Proklamasi Orang Melayu and even certain members of the Madani government when Rafizi Ramli and Tamrin Ghaffar Baba were released after prima facie were established. 

Its hypocritical selective activism with malicious and prejudicial intention motivated by politics and guise under democratic freedom of speech and media. 

The AG had acted in accordance with his power as prescribed under the Federal Constitution. Its the decision of Idrus Haron thus the new AG should not be blamed. 

Why it took Idrus this late to withdraw and only after documents leaked? 

By the way Hadi Awang, there is DNAA under Islam. 

Go check the Tatacara Jenayah Syariah Terengganu enacted by himself as MB of Terengganu then. 

There is a viral Tic Toc of Khairuddin Takiri  explaining the syariah basis. Hadi penipu punya lebai politik!!!   

Why should judges be trusted fully?

To keen followers of the cases, the reluctance of Justice Collin Lawrence Sequerah and Justice Nazlan Ghazali to recuse themselves for their association in the case's matter and with witness are simply unfathomable. 

And, a 7-person bench Federal Court could come up with decisions on Nazlan on November 10, 2022 and February 23rd 2023 solely for their self preservation. 

Sometimes judges decision does not make logical sense. 

So can they be wholly entrusted to be fair and not self serving in the light of revelations by past judges in the poison pen lettter of Syed Idid, blog article of Tun Abdul Hamid, judgement of Abdul Rahman Sebli, and affidavit of Hamid Sultan Abu Backer? 

How are we to know from past actions of Mahathir to remove Salleh Abas and 5 other senior judges that judges and judiciary cannot be manipulated, reliably trustworthy, and consistent?

 

Do tell us.          

# Updated 15/9/23 10;00 AM