GEORGE TOWN: A senior lawyer has poured cold water on the suggestion that runaway businessman Low Taek Jho be tried in absentia, saying this is not an option for a person accused of a crime who has yet to be charged in court.
SN Nair said under present laws, an accused person can only be tried in absentia after he or she is charged.
Under the Criminal Procedure Code (CPC), he said, if a person is charged in court and absconds during trial, the court can decide to proceed in his or her absence.
Under Section 425A of the CPC, he added, the court can also decide to suspend the trial while waiting for the police to arrest the accused and bring him or her to court.
The same law also states that if the accused is absent, the court cannot pass sentences such as life imprisonment or death.
Low, better known as Jho Low, is wanted in Malaysia for alleged financial crimes related to state investment fund 1MDB.
However, he has refused to return despite a warrant of arrest issued against him, saying he will not get a fair trial in Malaysia.
A close friend of his parents suggested yesterday that he be tried in absentia, saying nobody would want to return to the country if they felt that they might not get a fair trial.
Yan Lee, who vouched for the Low family during the authorities’ recent efforts to seize their family home in Tanjung Bungah, also said everyone is innocent until proven guilty.
But Nair said Jho Low’s claim that he might not get a fair trial in Malaysia was a common grouse.
“It is natural for all accused persons to say they might not get a fair trial. But an accused not being present in court for his charge is unheard of.
“It is a cop-out argument, that’s why people don’t try people in absentia,” he said.
He also said being absent from court is itself unfair as it is in the interest of the accused to attend court to defend themselves.
“It is a case of natural justice that he (Jho Low) must be given a chance to defend himself.”
Lawyer Nizam Bashir agreed that it would not be possible to hold a trial in absentia, especially when the accused is not present for his or her first charge.
“While it is notable that Malaysia Baru is being heralded for its pro-rule of law branding, the problem is more fundamental,” he told FMT.
“Malaysia’s criminal justice system simply does not countenance a trial proceeding against an accused in absentia.”