KUALA LUMPUR, Oct 31 — The High Court today directed the prosecution to make visible certain redacted parts of a defence witness' past statement to the Malaysian Anti-Corruption Commission (MACC) in the trial of Datuk Seri Ahmad Zahid Hamidi.
The declassification order was given to prevent potential breaches of the Official Secrets Act (OSA) in documents that the prosecution plans to use in its bid to challenge the credibility of that witness.
Last month, the High Court had allowed the prosecution to start impeachment proceedings against the defence's third witness Jefri Jamil, for inconsistencies in what he had told the MACC during investigation and what he had told the court during Zahid's trial.
Zahid is defending himself against 47 criminal charges, namely 12 counts of criminal breach of trust in relation to RM31 million of charitable foundation Yayasan Akalbudi’s funds, 27 counts of money-laundering, and eight counts of bribery charges over the receiving of RM21.25 million in alleged bribes.
Before today's impeachment proceedings against the witness, Zahid's lawyer Datuk Hisyam Teh Poh Teik told the court that the defence would have difficulties if Jefri's MACC statements remain classified as OSA.
Citing the Federal Court's decision in Lim Kit Siang v Public Prosecutor as reported in 1980, Hisyam said this meant that Zahid's legal team might be breaking the OSA if it were given those MACC documents unless it was declassified first.
He then read out excerpts from the Federal Court judgment in Lim Kit Siang's case, which included this line:
"The function of the court is judicial not legislative and the court ought not to legislate under the guise of exercising its judicial powers and functions. In particular, the court has no power to create a right for any person to ignore the provisions of the Official Secrets Ordinance or any other law of the land."
Hisyam argued that this meant that even if the High Court judge were to order for the classified MACC statements to be presented to Zahid's lawyers, such an order will not be valid as it could breach the OSA.
He alleged that because of this, the defence lawyers would essentially not be able to participate in the impeachment proceedings.
"We can't participate, we can't participate effectively. For effective participation, they need to declassify so that it will be fair and just, so My Lord can direct the prosecution to give us a copy. Without that, we cannot do anything," he said.
Lawyer Hisyam Teh Poh Teik is seen at the Palace of Justice in Putrajaya August 19, 2022. — Picture by Shafwan Zaidon
Lead prosecutor Datuk Raja Rozela Raja Toran argued that the impeachment proceedings does not require participation from the prosecution or the defence.
She said it only needed the judge to evaluate if Jefri's testimony is credible or not based on his explanation on the material discrepancies in his previous MACC statement and his court testimony.
"So participation by the defence is not required in the sense that the defence need not cross-examine or ask questions further.
"It is between Your Lordship and the witness, for Your Lordship to be satisfied with the explanation of the witness, and after that we proceed," she said.
Raja Rozela also said Zahid's lawyers would have the "right to look" at the relevant parts in the classified MACC statement as it would be marked as a court evidence for the impeachment proceedings.
She said it is a misconception to view a document classified as OSA as completely prohibited from being shown to the court.
She said the OSA was meant to prevent unauthorised disclosure or unauthorised use of documents classified as an official secret and that nothing in its provisions prevented it from being produced in court as part of the proceedings.
The High Court then asked if Zahid's lawyers will be committing any offence if they have a look or are given possession of the relevant parts of the MACC statements in the impeachment proceedings.
Raja Rozela acknowledged that possessing an official secret would be an offence under the OSA but noted that there would be a defence available under Section 17A of the Act if Jefri's MACC statement was used in the impeachment proceedings.
Section 17A states that any person charged with committing an OSA offence shall not be convicted if he proves that he did such thing to perform his official duties or with proper authority.
"I'm a public officer and so is this court and this is a judicial proceedings. By producing the OSA statement, that particular part of that statement will not make the defence liable if it is shown in court.
"Having possession or going against the OSA, no one will be charged for that, My Lord," she said.
While arguing that it is not necessary to declassify Jefri's classified statement, Raja Rozela also suggested an alternative.
She said the prosecution could waive the privilege of classifying or withholding the MACC statements from the defence, for the purpose of completing the impeachment process.
In response, Hisyam said the alternative solution boiled down to an issue of fairness.
"Whenever it suits the prosecution, it is lifted. Whenever it comes to the defence, we are handicapped. The privilege remains."
He pointed out that Jefri is witness for the defence and not for the prosecution.
He stressed that unless the document were declassified first, the defence would not be able to effectively participate in the impeachment process.
An aerial view of the Kuala Lumpur High Court April 23, 2020. — Picture by Hari Anggara
Judge Datuk Collin Lawrence Sequerah then asked the prosecution if they could declassify the MACC statement of Jefri for the impeachment proceedings, suggesting that this would then prevent any problems with the OSA.
"Are you not prepared to declassify the statement just for the purposes of impeachment?" he asked.
In reply, Raja Rozela said she is not the authorised person who would be able to declassify the document.
"But you can make a request, if you want to. You can request the necessary powers that be to declassify, then we won't run into any of these problems. So can I suggest that perhaps you make that application and we move on with other witnesses, so as not to hold up proceedings," the judge said.
Raja Rozela confirmed that requesting the declassification would be the best alternative, but said the declassification would be just on the three pages of Jefri's MACC statement that had already been shown to Sequerah previously.
The judge then agreed and noted that as long as it enables the defence to participate freely in the impeachment proceedings without any reservations or doubts about the court's rulings in the Lim Kit Siang case.
The judge then suspended the impeachment proceedings to challenge Jefri's credibility and ordered the trial to resume with other defence witnesses to be called.
But Zahid's other lawyer Hamidi Mohd Noh said none of the defence witnesses were able to testify in court today as they were all from Bagan Datuk in Perak.
He said two were due to arrive in Kuala Lumpur tomorrow and another six on Wednesday.
He added that they could not be secured earlier due to hotel arrangements.
As for another new defence witness who was said to be present in the court complex today, Hamidi explained that the witness could not be called yet, as the defence team had a sequence for when it will call its witnesses. Hamidi also provided the defence's printed list of defence witnesses to the judge and the prosecution.
The trial is scheduled to continue tomorrow until this Thursday (November 3), and is also scheduled to be heard on November 9 and 10.