Ex-Malaysia Leader’s Intent Can be Hard to Prove

Malaysia’s former Prime Minister, Najib Razak, was scheduled to begin his trial this week. He is still expected to face court in Kuala Lumpur on dozens of criminal charges, including money laundering and abuse of power, related to the scandal-plagued 1Malaysia Development Berhad (1MDB).

Everyone, including Najib Razak, deserves swift, fair and transparent judicial processes. Ironically, he is indeed expected to benefit from a strengthened, more independent judicial branch in the country after the change of the government last year.

The Pakatan Harapan (PH) coalition decimated the illusion that any position of power in Malaysia will last forever, not only for politicians, but also for government servants. By the same token, the judges have no incentive to bow to any pressure, whether real or perceived, from the government of the day as the latter can change in the next election cycle.

While the media and Internet users mostly have long applied the “preponderance of evidence” standard to presume Najib to be guilty of all charges, especially with new information disclosed by the PH government, the courts of law need to adhere to the “reasonable doubt” standard for all criminal cases, regardless of who the accused is.

The “reasonable doubt” standard in itself is hard to define. The U.S. Court of Appeals for the First Circuit in 2011 stated “proof beyond a reasonable doubt is proof so convincing that you would be willing to rely and act on it without hesitation in the most important of your own affairs”. That is probably as clear as mud for a lay person.

Regardless how “clear and convincing” the evidence in Najib Razak’s case, the court may struggle to identify his malicious intent. World-renowned dictators have concocted less complex methods than the 1MDB business models to siphon money for personal benefits. The lack of transparent processes and regulations for political financing in Malaysia will further convoluted the trial.

A recent court decision in the U.S. illustrate the difficulties to prove the specific intent in money laundering, fraud or corruption cases. While the U.S. legal system, laws and jurisdictions are different than those in Malaysia, the same judicial principles for fairness should apply.

In United States v. Millender, Brenda Millender was acquitted from charges of conspiracy to commit wire fraud, conspiracy to commit money laundering, and substantive money laundering in an investment fraud case. The court stated “the evidence was insufficient as a matter of law to establish that she knew that funds were fraudulently obtained… and therefore insufficient to sustain any of her convictions”. The court added “there was no evidence that she played any role in conceiving or understanding the scheme or ‘business model’… ”.

In Najib’s case, he may have committed a lapse in judgement in his strategy and management of his party’s financial machinery. Understanding his intent, and connecting the dots to all the charges vis-à-vis his role as the Prime Minister can be difficult. In the end, the prosecution and defense team’s portrayal of Najib Razak as the mastermind or the beguiled leader of 1MDB will determine the outcome of his trial.