Friday 29 Mar 2024
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This article first appeared in The Edge Malaysia Weekly on September 5, 2022 - September 11, 2022

IT is an outcome that she could never have imagined when her husband Datuk Seri Najib Razak held the highest office in the country, but Datin Seri Rosmah Mansor woke up on Friday a convict. This comes after the High Court found her guilty of all three counts of graft in relation to the solar hybrid project involving 369 rural schools in Sarawak.

While she was sentenced last Thursday to 10 years’ jail and fined a whopping RM970 million — the largest for a graft case and possibly the biggest so far in Malaysian history — what are her options?

Rosmah, who will turn 71 in December, has been convicted of soliciting RM187.5 million from Jepak Holdings Sdn Bhd between April and August 2016. She was also found guilty of receiving RM5 million and RM1.5 million on two separate occasions — at the then prime minister’s official residence, Seri Perdana in Putrajaya, and at her private residence in Jalan Langgak Duta in Kuala Lumpur, between Dec 20, 2016, and Sept 7, 2017.

Her lawyers, Datuk Jagjit Singh and Datuk Akberdin Abdul Kader along with Azrul Zulkifli Stork, have by now filed a notice of motion to appeal the conviction and sentence. In criminal cases, unlike in civil cases, the notice has to be filed within 14 days.

The prosecution, led by senior deputy public prosecutor Datuk Seri Gopal Sri Ram, at a press conference after the case indicated that they would not appeal the sentence, unless directed by the Attorney-General, Tan Sri Idrus Harun.

As the 116-page verdict by judge Mohamed Zaini Mazlan is ready, the defence team would be required to gather the notes of proceedings and, with the judgment, file the petition of appeal.

Normally, the petition would contain the grounds of appeal, basically, the reasons why her conviction and sentence should be set aside or considered unsafe.

After several case managements before the Court of Appeal, a hearing date for the appeal will be fixed and the matter will be heard before a three-member Court of Appeal bench.

Likewise, should her conviction and sentence be upheld or should Rosmah be acquitted by the appellate court, the prosecution or defence may file the final appeal to the Federal Court, which is the apex court.

In Malaysia, in any civil or criminal cases, a two-tiered appeal is allowed where, if the trial originates from the Magistrates or Sessions Court, the final appeal will be at the Court of Appeal.

Because this case was heard in the High Court, the final appeal process would be in the Federal Court.

On the question of how long the appeal process will take, it would depend on the cases. As one can see with Najib’s case, after his conviction in the High Court on July 28, 2020, for abuse of power, criminal breach of trust and money laundering, his guilty verdict was finally affirmed by the apex court on Aug 23.

 

Why political donation argument was untenable for Rosmah

As Datin Seri Rosmah Mansor was found guilty on all three counts of graft by the High Court last week, trial judge Mohamed Zaini Mazlan explained in his 116-page written judgment why the court did not buy the argument of a political donation in arriving at her conviction.

This follows arguments that the money purportedly sought was for a political donation to support her husband, Datuk Seri Najib Razak, the then Umno president and Barisan Nasional chairman in the 14th General Election, and in particular Pekan Umno.

The judgment highlighted an interesting point, namely how government procedures were not adhered to in awarding a massive and expensive project, such as the solar hybrid project for 369 rural schools in Sarawak costing RM1.25 billion, via direct negotiations and not through an open tender.

Despite being a housewife and a self-styled First Lady of Malaysia, Rosmah wielded her influence in playing her role to convince her husband to award the project to Jepak Holdings Sdn Bhd and benefited monetarily from it.

In her own testimony, she said that Najib had forbidden her to interfere in government affairs. However, the prosecution showed or proved her “overbearing nature” through covert audio recordings that were tendered as evidence, and the court was satisfied that Rosmah was no ordinary homemaker.

“I say this with the greatest of respect, but it is apparent that the accused (Rosmah) dominates Najib. She has a steely character and would not hesitate to admonish anyone,” said the judge in his finding as he observed her behaviour on the witness stand while being cross-examined.

Soon after, the long arm of the law caught up with her and after 44 days of court proceedings, Mohamed Zaini found her guilty and sentenced her to 10 years’ jail and imposed a fine of RM970 million, or in default, another 30 years’ jail.

While Rosmah is expected to go through the whole appeal process like her husband, she remains free for now and is out on RM2 million bail. Several portions of the judge’s written judgment were telling. One was on corruption, the scourge of every nation’s civil society, which Mohamed Zaini gave a timely reminder of and warned against.

“Corruption has reached almost every level of society. It must be curtailed before it becomes a pandemic. If corruption is left unbridled, our society will come to accept it as a way of life or business.”

 

Donation argument not feasible

The court did not buy the claim that the monies that Rosmah received were for a political donation, as the judge wrote the real purpose was to ensure Jepak got the solar project.

“The circumstances the monies were offered, given and received defies it being in a nature of political donation. Firstly, the fact the amount promised is a percentage of the project’s value meant that the payment was for the accused (Rosmah’s) benefit. A bona fide donation is usually a fixed sum.

“Secondly, the surreptitious manner that the payments were made. The two payments were made in cash in large sums and delivered to the accused alone at her residence,” said the judge.

Mohamed Zaini observed that the presentation of a donation is normally made via a cheque and done at a proper place and in the presence of witnesses where the donation would be properly presented and acknowledged.

“Najib, being Umno president, was never present when the cash was delivered on both occasions, which is highly odd considering that the so-called political donation was meant for the party,” the judge wrote.

The cash was delivered in two tranches — RM5 million and RM1.5 million — at the then prime minister’s official residence, Seri Perdana, Putrajaya, and then at Rosmah’s private residence in Jalan Langgak Duta between Dec 20, 2016, and Sept 7, 2017.

 

‘I have told my husband’

While the government has espoused calls for open tenders to be done for massive projects, the award of the solar hybrid project to Jepak Holdings was done via direct tender.

This is despite then education minister and presently Rural Development Minister Datuk Mahdzir Khalid suggesting that Jepak Holdings’ managing director Saidi Abang Samsudin go through the proper procedure for the ministry to evaluate the company’s capability of handling the project.

Justice Mohamed Zaini noted that the Ministry of Finance (MoF) secretary-general of the procurement department, Datuk Othman Semail, was hesitant to award the solar hybrid project to Jepak without conducting an open tender to invite other bidders.

Semail’s hesitation caused the delay in awarding the RM1.25 billion contract.

Saidi, however, complained about the slow progress to Datuk Rizal Mansor, who was Rosmah’s aide. Rizal brought the matter to her. Several days later, when Rizal followed up with Rosmah, she replied, “I have already told my husband.”

Soon after, MoF agreed to directly award the project to Jepak.

There were several critical witnesses in the trial — namely Saidi, his former business partner Rayyan Radzwill Abdullah, Mahdzir, former Ministry of Education secretaries-general Tan Sri Dr Madinah Mohamad and Datuk Seri Alias Ahmad, and finally Rizal, the crown witness, who was initially charged with her.

Saidi, Rayyan, Rizal and a few other witnesses did testify about the solicitation made and the money delivered to the two venues. Rosmah, however, denied all accusations, including the delivery of money.

The court found Saidi, Rayyan, Rizal and Mahdzir to be credible witnesses despite their role in the graft and the judge also commented that Mahdzir did the right thing by wanting Jepak to go through the proper channels to secure the contract.

 

Letters by Jepak minuted by Najib

Between Nov 23, 2015, and April 21, 2017, more than 10 letters were produced by Jepak Holdings and most of them were minuted by Najib as the prime minister and finance minister.

It started with a letter dated Nov 23, 2015, with the company’s proposal for the solar hybrid project to replace the diesel generators that were provided to the rural schools in Sarawak.

Najib wrote in the minute that he agreed to execute the new system and terminate the previous system, although there were ongoing agreements for contractors to operate the diesel generators. This could cause detriment to the government for having to pay the penalty of early termination.

Mahdzir and his ministry were concerned about Jepak’s capability to undertake the project and that delayed the issue of the letter of award (LoA) to Jepak.

In view of that, Najib wrote to Mahdzir and the Ministry of Education twice to urge the latter to issue the LoA, including one cover letter by Najib dated Nov 6, 2016, telling Mahdzir to do it based on Jepak’s letter immediately.

Roughly a year later, Jepak fell into financial problems and it needed an advance of RM130 million. The company sought help from Najib through the Pekan Umno division secretary Datuk Ahmad Aazmey Abu Talib. Soon after, Najib, who was the finance minister, wrote to the Ministry of Finance informing that the application by Jepak for an advance was approved and released the sum of money immediately.

Subsequently, the LoA was issued and Rosmah is said to have received the payment of RM5 million at Seri Perdana.

“The accused (Rosmah’s) defence was a bare denial devoid of credible evidence and unsubstantiated in order to create a reasonable doubt. In the upshot, the prosecution has succeeded in proving its case beyond reasonable doubt in respect of all three charges.

“The accused (Rosmah) is therefore guilty of all three charges under Section 16 of the Malaysian Anti-Corruption Commission Act 2009,” the judge ruled.

Now, we await her appeal process, as Rosmah is also slated to go on trial on 17 counts of tax evasion and money laundering of RM7.1 million, possibly at the end of the year.

 

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