Former finance minister Lim Guan Eng. Photo: Reuters/Lai Seng Sin

There’s a popular Latin phrase, Fiat justitia ruat cælum, which means, “Let justice be done though the heavens fall.” The maxim signifies the belief that justice must be done regardless of consequences. 

It comes to mind as former Malaysian finance minister Lim Guan Eng faces three charges next week of corruption and abuse of power over the Penang undersea tunnel project. He has already been charged in the Kuala Lumpur Special Corruption Court with one graft count.

Lim allegedly solicited a bribe worth 10% of the profits to help a company owned by Zarul Ahmad Bin Mohd Zulkifli to build main roads and tunnels in the Penang undersea tunnel project.

It will be interesting to see how the facts are revealed and what evidence is produced by the deputy public prosecutor. It was reported that there is no money sitting in any bank account, either in his or in a law firm’s trust account.

We do not know if any conversation was recorded or witnessed or if there is any corroboration of what was allegedly said. The defense will have pretrial discovery, which will throw some light on the prosecution’s case. 

What’s also interesting is that Lim allegedly solicited (which he has vehemently denied) 10% of the profits of the project. In other words, if the project suffered losses, there is nothing to be paid. I’m sure the prosecutors know the requirement of corroboration, failing any other direct evidence in a criminal trial. Otherwise it will be a “he said, I said” corruption trial. 

The central tenet of any prosecution system under the rule of law in a democratic society is the independence of the prosecutor. No outside or political interference must exist. Even a semblance of interference would make a mockery of the rule of law. 

All government agencies should ensure the necessary processes are in place to protect the independence of the prosecution decision. In Malaysia, the process should be the same. 

The decision to prosecute is never easy. Prosecutions drain the accused and his family. They damage reputations, more so if you are a public figure. They are also expensive and largely taxpayer-funded. Investigations are time-consuming, are costly and drain the resources of already stretched enforcement agencies that have other important work on their hands. 

Prosecutions ought to be initiated only when the public prosecutor, who in Malaysia is the attorney general, is satisfied that the evidence that can be presented in court is enough for a reasonable prospect of conviction.  

The prosecutor must analyze and evaluate all of the evidence and information in a thorough and critical manner. There must be credible evidence that the prosecution can bring before a court and upon which evidence the judge could reasonably be expected to be satisfied beyond reasonable doubt.

In Malaysia there is no jury trial. The judge alone decides on the facts and the law. 

Prosecutors must also think of possible defenses that the accused might raise in a trial. In a criminal trial, the standard of proof is high. A witness can turn hostile.

Prosecutors may be required to assess the quality of the evidence. Where there are substantial concerns as to the credibility of essential evidence, criminal proceedings may not be appropriate. Only evidence that is or reliably will be available, and legally admissible, can be considered in reaching a decision to prosecute.

Prosecutors should seek to anticipate even without pretrial matters being raised whether it is likely that evidence will be admitted or excluded by the court. For example, is it foreseeable that the evidence will be excluded because of the way it was obtained? Was it illegally acquired? If so, prosecutors must consider whether there is enough other evidence for a reasonable prospect of conviction. 

Lim Guan Eng’s case with which he is now been charged was closed by the Malaysian Anti-Corruption Commission (MACC) in November 2018 as there was insufficient evidence. At that time, the attorney general made the decision. We do not know if any fresh evidence has been found.

After Perikatan Nasional came to power, the case on the underground tunnel was reopened. Has money been found in overseas bank accounts belonging to Lim, or some lawyer’s trust account, or stupidly in his own bank account? Apparently not, as the charge does not state so. If the MACC has that evidence, among other evidence, it will have a reasonably strong case. 

Is there evidence of corrupt money flow? We don’t know. In corruption or money- laundering cases, any investigator worth his salt will tell you to follow the money. Sometimes an agent provocateur is used. 

In undercover investigations by enforcement authorities, usually, as in a drug bust, investigators will wait until the drugs are passed on, or the corruption case, money is passed on to the offender. They will wait for that in surveillance. They will not pre-empt the arrest by jumping the gun, screwing up essential evidence for the prosecution.  

The Penang tunnel project was awarded via an open tender. It was evaluated by a committee chaired by the state secretary, a civil servant, not Lim Guan Eng. No money has been paid. It was also only due to commence after the contractor Zenith Construction Sdn Bhd secured all necessary planning and environmental approvals, as well as the necessary funding to carry out the project.

Ivstitia praevalebit is Latin for “Justice will prevail.” It will, but a just process must be followed. 

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Dave Ananth

Dave Ananth is a former Malaysia magistrate who is now senior tax counsel at a New Zealand law firm.