‘Dua darjat’ exposed? Projek SAMA report lets Malaysians decide if there’s ‘ikan yu’, ‘ikan bilis’ disparity in post-2018 corruption cases

PETALING JAYA, Dec 9 — Is Malaysia a dua darjat two-tiered society, and do ikan yu (sharks) and ikan bilis (anchovies) in corruption cases get different treatment from the Attorney General? 

This question was what prompted non-governmental organisation Project Stability and Accountability for Malaysia (Projek SAMA) to carry out its research, with the findings launched today in a report titled “Do politicians still get away with corruption after 2018?”

In the report, Projek SAMA said Malaysians had long had the perception that those who are well-connected politically frequently escape conviction or serious because of their power, wealth or political alignment with those in power.

Noting that the 2018 change in government gave many Malaysians hope that selective impunity for politicians would end, Projek SAMA said however that the prosecution’s decisions — including to ask for discharge not amounting to acquittal (DNAA) for several senior politicians aligned to the ruling government — had eroded public confidence in the rule of law.

Projek SAMA looked at 21 current or former lawmakers’ 28 cases covering corruption, criminal breach of trust and money laundering charges (C-C-M) that were started or continued on after the May 2018 elections.

When asked if Projek SAMA’s research answered the question of whether Malaysia is a dua darjat (two-tiered) society where ikan yu and ikan bilis would get different treatment, the group’s convenor Ngeow Chow Ying said this will be up to Malaysians to conclude based on the data in the report.

“No, not specifically. I think it is up to the readers to draw conclusions themselves. We are just laying down the facts,” she told the media at the report’s launch which was held at electoral reform group BERSIH’s office here.

Asked if Projek SAMA is drawing any conclusions on how the Attorney General has exercised his prosecutorial discretion to stop prosecuting such high-profile corruption cases, Ngeow said: “We are not making any conclusion specifically, because it’s just 28 cases, we can’t make conclusive conclusions. 

“And out of 28 cases, it is only 10 cases that are dropped halfway, and three of the cases dropped halfway are with legitimate reasons, but we just want to put out facts in relation to all these cases,” she said.

The 10 cases involve politicians from different political parties, namely Lim Guan Eng, Tun Musa Aman, Datuk Nasharudin Mat Isa, Datuk Seri Tengku Adnan Tengku Mansor, Datuk Noor Ehsanuddin Mohd Harun Narrashid, Datuk Seri Ahmad Maslan, Datuk Seri Abdul Azeez Abdul Rahim, Tan Sri Shahrir Abdul Samad, Datuk Seri Ahmad Zahid Hamidi and Tun Daim Zainuddin.

Projek SAMA’s legal researcher Farah Izzah Haron today said three cases where the AG had legitimate reasons to discontinue the cases were:

Daim’s acquittal upon his death as charges cannot be heard against an accused who has died, 

Ahmad Maslan’s acquittal as he had paid a compound which is a method to settle cases, 

and DNAA on two of Datuk Mohammad Lan Allani’s charges to enable their withdrawal for him to be charged with the same charges in the correct court.

Under the Criminal Procedure Code’s Section 254, the AG as the public prosecutor can choose to not continue prosecuting an accused person, which would result in the court only being able to choose between granting either an acquittal or an DNAA. 

If the AG wants to discontinue a criminal case using its Section 254 powers, Projek SAMA notes that the court has no powers to order the prosecution to continue with the case and also cannot question the AG’s decision to withdraw the case. 

Projek SAMA’s research specifically focuses on the AG’s exercise of its powers to stop prosecuting high-profile corruption cases.

For now, Projek SAMA will continue to monitor the ongoing and upcoming corruption cases involving politicians to “see if it’s sufficient to conclusively conclude that there’s a trend”, Ngeow said.

“But at the moment, our concern is the prosecutorial conduct on all these high-profile cases. When you are not transparent, when you are not consistent, two years ago you file appeal, two years later when there’s a change of government, you withdraw the appeal,” Ngeow said when alluding to the example where a corruption case against Zahid was discontinued after the AG dropped its appeal against his acquittal.

“If you have inconsistency without giving justification, without giving accountability to the public, I think the message we want to drive is this would definitely erode public trust. And administration of justice is something that is so important, public confidence in our administration of justice is so important for the legitimacy of a government, so that is the reason why we have this report,” she added.

The 36-page report, which will be made available on Projek SAMA’s website, was written by legal researcher Farah Izzah Haron and edited by Ngeow, and Projek SAMA members Wo Chang Xi and Prof Wong Chin Huat.

The report carries two main recommendations, namely to reform the prosecutorial structure and oversight in Malaysia, and to enhance transparency through political financing reform.