By Hafiz Yatim | The Edge Malaysia
The High Court will decide on April 28 whether to transfer Datuk Seri Shamsul Iskandar Mohd Akin’s graft case to the High Court.
Shamsul Iskandar is a former senior political secretary to Prime Minister Datuk Seri Anwar Ibrahim.
Judge Noor Ruwena Md Nurdin said she will need time to decide on the matter after hearing submissions from Shamsul Iskandar’s lead counsel Datuk Amer Hamzah Arshad, and responses from deputy public prosecutor (DPP) Farah Ezlin Yusop Khan regarding his request to move the case from the Sessions Court to the High Court.
‘Lower court can’t properly hear defence, risking an unfair trial’
Amer Hamzah of Messrs AmerBON, appearing with Joshua Tay and ex-senator Yusmadi Yusoff, said Shamsul Iskandar’s case raises important constitutional issues that the trial court would have to consider, specifically challenging the constitutionality of Section 19 of the Malaysian Anti-Corruption Commission (MACC) Act 2009.
Shamsul Iskandar is being charged under Section 17 of the MACC Act for receiving cash from businessman Albert Tei Jiann Chieng in connection with his principal’s affairs. The charge is read together with Sections 19(1) and 50(1) of the MACC Act.
Amer Hamzah argued that this setup could violate Shamsul Iskandar’s right to a fair trial under Articles 5(1) and 8(1) of the Federal Constitution.
Section 19(1) says an agent commits an offence if they corruptly solicit, accept, or attempt to obtain gratification in relation to their principal’s affairs. Section 50(1) presumes any received or agreed-to gratification is corrupt unless proven otherwise.
Under Section 17(1) charges, Shamsul Iskandar must both rebut the presumption under Section 50(1) and prove conditions under subclauses (a)-(d) of Section 19(1), which cover situations such as:
- He had no power or opportunity to act;
- He accepted gratification without intent;
- He did not act on it;
- The act was unrelated to his principal’s affairs.
Amer Hamzah said these subclauses limit the court’s ability to evaluate Shamsul Iskandar’s defence, effectively encroaching on judicial powers under Article 121(1). He added that the Sessions Court cannot rule a section unconstitutional, which is a power of the High Court.
He also argued that transferring the trial to the High Court would save time and allow the constitutional and legal issues to be properly addressed under Section 417 of the Criminal Procedure Code.
“When looking at the charges, we noticed that we cannot run away from the provisions of Section 19(1) and Section 50 (1) and hence we submitted the questions of law and legal or constitutional issues are intricate points of law of unusual difficulty which a subordinate court (Sessions Court) judge is ill-suited to deal with,” he said in arguing that the case should be transferred to the High Court.
Prosecution: Sessions Court competent
Farah Ezlin who appeared with DPP Nurul Qistini Qamarul Abrar informed the judge that the Sessions Court is competent to deal with the matter and the trial ought to remain there.
She added that Amer Hamzah’s contention that there is allegedly a constitutional issue which may have to be decided is flawed as it had not been crystallised nor arisen in any concrete form and remains contingent on the factual development of the case at trial.
“What is presently before the court is therefore not a real controversy requiring adjudication, but a speculative construct advanced to justify an extraordinary procedural intervention. It is well settled that the subordinate courts are vested with both the jurisdiction and the power to determine constitutional questions arising in the course of trial, and are not rendered incompetent,” she added.
Farah Ezlin said the specialised Sessions Court handling corruption cases is capable of managing them.
Noor Ruwena asked about the Tei case, and the DPP replied that Tei’s lawyers plan to move it to the High Court, though no formal application has been filed.
The prosecution also intends to have Shamsul Iskandar and Tei’s cases jointly tried.
Edited By Presenna Nambiar
