KUALA LUMPUR: The prosecution has made a preliminary objection against an application by Toh Puan Na'imah Abdul Khalid who is challenging the validity of the charge against her under the Malaysian Anti-Corruption Commission (MACC) Act.
In an affidavit-in-reply affirmed by Deputy Public Prosecutor Maziah Mohaide, the prosecution said there was no necessity for the Sessions Court to refer the constitutionality of Na'imah charge to the High Court as the application had no merit.
"The issue brought by Na'imah is not a constitutional matter and it does not violate any Articles in the Federal Constitution.
"The right of an individual to a privilege against self-incrimination is not an absolute right under the law nor is it guaranteed under the Constitution," she stated.
According to Maziah, Section 36 of the MACC Act 2009 was a provision that gave power to the MACC officer to obtain information for the purpose of investigation.
"This provision does not violate Article 5 of the Federal Constitution because when the applicant was given a notice under Section 36, she was not arrested nor detained.
"Therefore, to say there is a violation of Article 5 before trial is premature.
"The provision also did not violate Article 8 of the Federal Constitution because Section 36 is not only applicable to the applicant, it is also applicable to everyone else who is served with the same notice under this provision, whereby they would be facing the same procedure without discrimination," she added.
Maziah said that Na'imah was treated equally before the law and there was no discrimination against her in the context of Article 8 when she was ordered to adhere to the notice under Section 36.
"MACC officers had acted the same if there were other people investigated under the MACC Act 2009," she said.
Article 5 of the Constitution was on personal liberty while Article 8 was on equality before the law.
During case mention on Friday (March 22), Sessions Court judge Azura Alwi fixed May 21 to hear an application filed by Na'imah.
The court also fixed May 9 for mention on a similar application filed by her husband, Tun Daim Zainuddin, on March 15.
Deputy Public Prosecutors Datuk Wan Shaharuddin Wan Ladin and Mohamad Fadhly Mohd Zamry appeared for the prosecution while Daim and Na'imah were represented by lawyer M. Puravalen.
On Jan 23, Na'imah was charged with intentionally giving a written statement under oath that did not comply with the terms of notice under Section 36(1) (b) of the MACC Act 2009, whereby Na'imah did not declare assets as stated in Appendix A.
The assets listed were two companies; Ilham Tower Sdn Bhd and Ilham Baru Sdn Bhd, two luxury cars; Mercedes Benz EQC400 and Mercedes Benz 500 SL Auto and eight properties; Menara Ilham in Jalan Binjai, a house in Persiaran Bukit Tunku, four land lots in Bukit Tunku, one lot in Penang and a house in Taman Tun Dr Ismail.
The 67-year-old was charged under Section 36(2) of the MACC Act 2009 and faces imprisonment of up to five years and a fine not exceeding RM100,000, if convicted.
A few days later on Jan 29, Daim claimed trial to a similar charge over his alleged failure to declare his assets.
His charge was similar to what was faced by his wife but the listed assets ran six times longer.
According to the charge sheet, Daim had intentionally given a written statement under oath that did not comply with the terms of notice under Section 36(1) (b) of the MACC Act 2009, whereby he did not declare assets as stated in Appendix A.
Daim's assets included a bank account, seven luxury cars, 38 companies and 25 plots of land and properties spread across Kuala Lumpur, Negeri Sembilan, Pahang and Perak.
