KUALA LUMPUR, Nov 18 — Arul Kanda Kandasamy should naturally and automatically be released from his criminal case if he testifies as a prosecution witness against Datuk Seri Najib Razak in their joint trial, Arul Kanda’s lawyer argued today.
Arul Kanda’s lawyer Datuk N. Sivananthan was speaking to reporters about the prosecution’s plans to call the former 1Malaysia Development Berhad (1MDB) CEO to become a witness.
The prosecution today said it will in the course of the trial use Section 63 of the Malaysian Anti-Corruption Commission Act (MACC) to apply to the courts for Arul Kanda to testify as a prosecution witness.
Sivananthan said there are no past cases that had used this legal provision.
“Section 63, as far as I can recall, has never been used in Malaysia, although the provision has been in the Act,” Sivananthan told reporters when asked for his understanding of the law.
Sivananthan said Section 63 gives the judge the discretion whether to allow the prosecution’s application to call on an accused person to be a prosecution witness in a corruption trial, adding that he believes that this would then result in his client Arul Kanda being released from the charge.
“So my position is this, that if in the event the court were to allow it, then our position would be at the conclusion of his evidence, the charge must be withdrawn against him.
“Because obviously you can’t be asked to enter defence on your evidence against yourself,” Sivananthan said when explaining what he believed this to be a logical conclusion.
“You cannot be calling for defence of an accused who gives evidence against himself obviously,” he added.
“So to me, the natural progression of Section 63 once invoked must be that upon conclusion of the testimony, the charge must be withdrawn against the accused concerned,” he said.
Under Section 63 of the Malaysian Anti-Corruption Commission (MACC) Act 2009, in a situation where two or more people are charged with an offence under this same law, the court may require one or more of them to give evidence as witnesses for the prosecution if a written application is made by the public prosecutor.
Also under Section 63, every person required to give evidence as prosecution witness “shall be entitled to receive a certificate of indemnity” if the court finds that he has made a “true and full discovery” of all things to which he was examined on, with this certificate to be a bar to all legal proceedings against him over such matters.
Sivananthan argued that Section 63 would mean a “full indemnity from any action” against Arul in not just this trial with Najib, but also in any other matter that he has given evidence on.
The prosecution has yet to formally apply for Arul Kanda to be its witness, while Sivananthan had earlier today taken note of the prosecution’s intentions to do so and had said he would address the application when it is made.
Both Najib and Arul Kanda were charged under the MACC Act over the alleged tampering of the auditor-general’s final report on 1MDB in 2016.
In this trial, Najib was charged with abusing his position as prime minister to order amendments in February 2016 to the auditor-general’s final audit report on 1MDB before its presentation to Parliament’s Public Accounts Committee to avoid any action against him, while Arul Kanda was charged with abetting Najib in the report’s tampering.
Both their offences are punishable under the Malaysian Anti-Corruption Commission (MACC) Act 2009 with a maximum 20-year jail term, and a fine of at least five times the amount of gratification or RM10,000 or whichever is higher.
The trial before High Court judge Mohamed Zaini Mazlan resumes tomorrow morning.