It is often claimed the quotation, "The law is an ass" came from the legal genius of British legal system, Lord Denning. Apparently, it is not.
The quotation, as Wikipedia puts it, means the law, as created by legislators or as administered by the justice system, cannot be relied upon to be sensible or fair".
In Malaysia, government MPs simply aye all laws proposed by government on the instruction of the Chief Whip, which under BN, was Tan Sri Muhyiddin Yassin and subsequently replaced by Dato Dr Ahmad Zahid Hamidi.
The law drafter may have given enforcement agencies too much power to the extent junior officers could abuse the law at will. However, the blame has to be the whip system, which insisted voting is done along party line and decided by party leaders.
This is all leading to concern and critique of AMLA or the civil forfeiture law.
It came about out the first impression of the first PC by new Chief Commissioner of MACC, Latheefa Koya to announce the civil forfeiture on 41 accounts alleged to have received illegally money from 1MDB.
The PC seemed to emulate the then US Attorney General, Loretta Lynch announcement on the civil forfeiture and investigation into 1MDB.
Latheefa's PC as groundbreaking. It was not. It was noticeable to see the handsome MACC Commisioner, Datuk Azam Baki momentarily aged.
In the meanwhile, Director in charge of AMLA, Muhammad Zamri bin Zainul Abidin was could not hold back his glee.
Zamri's wrong advise?
There have been gossips of Zamri, the former MACC Chief, Dato Shukti Abdul's trusted man.
He had allegedly applied AMLA to freeze accounts at will in the Sarawak's Operasi Gergaji, failed in his investigation resulting in MACC embarassing loss against Dato Mirza Taib repeatedly and Dato Latiff Bandi, pursuing Tan Sri Musa Aman on long debunked Michael Chia allegation, and in the lurch following Shukri's resignation.
This posting is not about Zamri repeating the same modus operandi to freeze accounts at will, but often ended up with nothing.
It is beyond Zamri, who seemed to have gained weight lately due to water retention, or life has been good. To gain attention of Latheefa, he was accused of illegally securing handphone evidence of a former Minister.
The latest civil forfeiture against 41 individuals, political parties, and NGOs attracted critics, negative comments, and even sniggers and laughters at Latheefa.
Zamri's mamak survival instinct, but yet incompetent, will have bearing on Latheefa. Off course, she is still learning the ropes and acceptable to make mistakes.
Her announcement on the civil forfeiture and warning the 41 not to talk to the press are odd. It is usually done by AG or DPP. The law have yet been amended to separate public prosecution role from AG and allow MACC to undertake prosecution. .
At one Hari Raya open house hosted by a senior member of the legal community last week, civil forfeiture became the subject of conversation.
An ear witness sat quietly as a mouse as prosecutors and judges ridiculed and passed disparaging remarks in the manner AMLA was seen as abused, misinterpreted and enforced.
It only look bad at Latheefa as all this is happening under her watch. Guess that could be the concerned look of "aged" Azam. In a face saving statement, Azam told media there are more names and more will be slapped with civil forfeiture.
Politics
The political arguments against the latest civil forfeitures ranged from the use of AMLA as political tool, bankrupting UMNO, freeze of business accounts of bona fide providers of products and services, the postphonement of 1MDB case by AG to October, mentioned in SRC case of Arab donation banked-in Dato Najib's accounts, and need to establish it was 1MDB money and not Arab donation.
Bung Mokhtar claimed the move is selective prosecution. The recipients list have been an open secret for many years thus why 41 only and not 408 as once mentioned by Shukri.
Absent are the names of Dato Mustapha Mohamed, Dato Mukhriz, Tan Sri Muhyiddin, Dato Shafie Apdal, Dato VK Liew and LDP, Dato Madius Tangau and UPKO, Tan Sri Joseph Kurup and PBRS, Dato Rosol Wahid, Mas Ermieyati, former UMNO Bagan Serai MP and all the recipients that left for PH.
If all UMNO division heads received money, Zamri should have frozen the accounts of almost all the PPBM MPs that used to be UMNO MPs and the UMNO MPs that crossed over to PPBM!
The civil forfeiture has politically backfired. Lim Guan Eng claimed that a media NGO receiveved money and that invited Gerakan to raise the name of Muhyiddin, Mukhriz and Shafie. What kind of leader is Mukhriz as then UMNO Kedah Liaison Chief to claim ignorance?
In Raja Petra latest posting, he wrote all politicians should not pretend not to know of the large amount of money used for general election. Everyone did it but only now UMNO kena because Mahathir dendam. He was no angel but a skillful operator.
It must have been unbearable for Latheefa that she had Azam Baki to reveal there is more and more will be charged under civil forfeiture.
That explained his discomfort during the Latheefa's PC, which is believed to receive Mahathir's blessing. Being 40 years in ACA and MACC, he could fathom the implication.
Civil forfeiture
It is timely to link back to a December 2017 posting HERE on a talk by an American attorney and former Harvard professor. Thomas C Goldstein on civil forfeiture at UiTM.
As taken from Bigdog HERE, the last para in DOJ's June 15 2017 press conference that revealed on the 1MDB debacle briefly and accurately described civil forfeiture action:
"A civil forfeiture complaint is merely an allegation that money or property was involved in or represents the proceeds of a crime. These allegations are not proven until a court awards judgment in favor of the U.S."The AMLA criminal case against Najib is not proven but the legal treatment of the civil forfeiture case is different from the Najib cases.
Criminal cases require prove beyond reasonable doubt to be judge guilty. Civil cases is based on on balance probability. Both criminal and civil case require court judgement to prove guilt before any sentencing on the persons charged.
However, civil forfeiture is neither criminal nor civil in nature but quasi civil and criminal. It does not deal with the person but money and is meant to prevent illegally money suspected to have been obtained by criminal means to be forfeited to stop it from being taken out and evidence disappeared.
AMLA allows the investigating officer the power to freeze accounts of money from suspected criminal activities for few months.
Subsequently, the AG could freeze it up to a year, in which upon expiry, there must be a charge made against them. Failing which, it has to be releases as in the case of MBI International and Dato Hamzah Zainuddin should be answerable.
To extend the retention of the forfeiture, without the difficult task of getting the evidence ready for criminal prosecution is to do a civil forfeiture similar to the one done on the asset seized in Najib's home and Pavillion condominiums.
AMLA abused
That move on Najib is correctly done under AMLA law. So does on the 41 accounts, but it is unfair, insensible and politically motivated.
It denies Najib access and use of the money. Constitutionally, it is denying the rights to property and infringing human rights. Where are the human rights lawyers? Arwah already?
It is likely Latheefa has wrongly used AMLA for political purpose. Based on the suspicion it was to deny Najib the money for him to make any comeback or support UMNO's political operation, the civil forfeiture was abused for politics.
The reason is simply Dato Najib and Datin Seri Rosmah has explained and provided documents on each of the asset seized. Thus there is no reason to do so.
Same with the civil forfeiture on the 41. These accounts were frozen last year and it is due to be released. The civil forfeiture could have been used to deny money to the account holders. Again, the account holders have explained and provided evidence. Why the forfeiture if not for political expediency?
To camouflage the political intention, innocent businessmen selling products like Jakel had their bank accounts frozen. Those data analytics, public relation, media work etc. ended up getting their accounts frozen for bona fide services rendered.
Does that mean recipents like Kg Baru masjid, mini dams in the interiors of Sabah and Sarawak etc should be denied the facilities built?
Legally speaking, those Haj should also have their Haji title withdrawn. Closer to Mahathir's heart, the Langkawi fisherman should not go out to sea with 1MDB boats donated to them!
Such reckless and irresponsible application of AMLA by several agencies is believed to have frozen some RM10 billion money. That amount of money can be leveraged and lent out by Banks for at least 10 times for RM100 billion. If it is 20, that is RM200 billion.
Holding back the money will affect suppliers, salary and wages, company business operation, service providers, and all down the line.
Companies getting accounts frozen could defult on their loan repayments and Banks can start taking legal actions thus compounding the problem further.
Its impact affect on money supply could be more based on the economic multiplier.
Illegally applied
To the legal practitioners, civil forfeiture law is intended to stop money from criminal activities from dissipating away.
It is a useful too against corruption and illegal activities. Any CEO or Chairman could sellout from the mere threat of AMLA.
Genuine civil forfeiture can be justified. For the 41 cases, has Zamri and now Latheefa pondered whether the money meant for GE13 could possibly remain in those 41 accounts after GE14?
Frankly, it cannot be.
Any claims for electoral expenses are cleared and accounts closed within days after any elections - by-election or general election. No more money will be in the accounts after two general elections.
In the frozen accounts, the money are from new deposits and surely not from alleged 1MDB money.
This is common sense in which Zamri's usual legal reference, Tan Sri Gani Patail, would have advised. Perhaps the advise was on how to get around it.
The manner accounts were frozen is deemed illegal. MACC or likely Zamri is aware that the alleged 1MDB money have been spent and the frozen monies are not from questionable source.
If Najib is being charged for abuse of power and prosecution intend to send him behind bars for it, Latheefa and Zamri have commited the same.
Acting President, Tok Mat said UMNO will challenge the suit. They have legal grounds.
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Cambridge Dictionary explained the quotation "The law is an ass" also means "the legal system or a particular law is wrong or not good enough, and should be changed".
If one care to observe, lawyers dwell most of court time on the law. Judges interpreting the law or in Malaysia's cases, most judges tend to be lazy to interpret and rely solely on law precedents. The court hardly care whether the law is justified, fair or make sense.
If one hear any arguments to seek justice and fairness in court, it is only when their back is against the wall and the particular law does not make sense or impractical.
This time around it is not the rhetoric of justice but even the ass was broken. No offense Azmin.