Prosecution against Daim: Legal challenges in prosecuting and securing conviction for old cases

Former finance minister Tun Daim Zainuddin is expected to be charged in court next week.

The Madani government should be commended for going all out to declare a war against corruption. Nonetheless, it must be able to convince intelligent voters that it is in the national interest that it badly needs to charge Daim, but to keep Deputy Prime Minister Datuk Seri Dr Ahmad Zahid Hamidi, despite Zahid being called to enter defence for 47 criminal charges.

When the present Madani government has declared its commitment to waging a war against corruption, such a declaration may garner a slew of support from citizens and netizens. Hence, the government’s action against a few old politicians like Daim may be seen as part of such a war.

Nevertheless, I need to gently remind the government that the risk of bringing old criminal cases to court is real.

The government may be oblivious to this ironclad perception. In politics, perception matters.

Hopefully, the government is ready to counter such a perception that the latest move has nothing to do with any political vendetta. Hence, the Madani government must be ready to come up with a good narrative in order to convince intelligent voters.

Legally speaking, prosecuting old cases in court is relatively an uphill task, as the prosecution may face a herculean task in securing conviction. It is no point to drag any alleged criminal to court if securing conviction would be minimal. After all, the ultimate goal of prosecution would be a successful conviction.

In addition to that, criminal prosecution may entail public funds as well. Hence, you don’t prosecute unless the likelihood of securing conviction would be high and almost guaranteed.

Outside the court — especially in the political gallery — it would be easy to loudly proclaim that a particular person or politician is corrupt. In my view, Najib’s case and Daim’s case are poles apart. That is why not even a single judge harboured any doubt that Najib was guilty as charged.

Anyway, it is a totally different ball game inside any court of law. In court, every single accusation needs to be satisfactorily and carefully established beyond reasonable doubt via cogent and admissible evidence. Suspicion, however strong, cannot replace evidence.

Based on my considerable experience, the quality of evidence to be presented in court may be severely damaged and highly compromised when an old case is prosecuted in court. Generally, prosecuting agencies are a bit reluctant to prosecute old cases.

One thing for sure, the prosecution may have difficulty to trace some relevant and important evidence, and some prosecution witnesses may have difficulty to recollect their old memories, hence compromising the efficacy and quality of their viva voce (oral) testimonies in court.

Worse, the prosecution witnesses may be subject to brutal cross-examination from experienced and able criminal advocates.

Prosecuting any alleged culprit is doubtless part of public undertakings. Hence, such a task should only be carried out for the sake of public interest and nothing else. Period. If it is found out that such an undertaking is unnecessarily motivated by other elements, the integrity of such a prosecuting agency may be subject to public opprobrium. And that would not be a good omen to the government.

Mohamed Hanipa Maidin is a former deputy minister of law.