Rosmah’s tax-related charges violate right to fair trial, argues lawyer

KUALA LUMPUR: The tax-related charges against Datin Seri Rosmah Mansor are flawed and violate her right to a fair trial under Article 5 of the Federal Constitution, the High Court heard.

Rosmah’s lawyer, Datuk Firoz Hussein Ahmad Jamaluddin, argued that no proceeds of unlawful activity were generated by the alleged failure to declare income tax. He stated that the non-declaration of income tax cannot, in itself, be considered a predicate offence.

Firoz also contended that Section 85 of the Anti-Money Laundering, Anti-Terrorism Financing, and Proceeds of Unlawful Activities Act (AMLATFPUAA), which empowers the Finance Minister to add predicate offences to the Act’s second schedule, is ultra vires (beyond legal authority).

In 2018, Rosmah, 72, was charged with five counts of money laundering for allegedly failing to declare RM7,097,750 in income deposited into her bank account, as required under the Income Tax Act 1967. The charges were brought under Section 4(1)(a) of the AMLATFPUAA.

Firoz argued that simply failing to declare income tax could not result in proceeds of unlawful activity. “Was the Anti-Money Laundering Act established to catch those who fail to file their tax returns?” he questioned.

He emphasised that not filing a tax return or notifying chargeability should not be viewed as generating proceeds from unlawful activities.

Firoz made these submissions in Rosmah’s application to quash the 12 charges of money laundering, amounting to over RM7mil, and five charges of failing to declare personal income to the Inland Revenue Board. The case is being heard by Justice K. Muniandy.

Firoz further argued that the charges amounted to an abuse of the court process and had negatively impacted Rosmah’s quality of life, a right protected under Article 5(1) of the Constitution. He pointed out that Rosmah has been burdened with legal fees, RM1mil bail, and court proceedings, which have caused her ongoing stress and affected her mental health due to the risk of imprisonment.

In response, Deputy Public Prosecutor Ahmad Akram Gharib defended the charges, stating that Section 112 of the Income Tax Act is constitutional. He explained that the law was designed to prevent individuals from enjoying the proceeds of unlawful activities.

“It effectively means that those who do not declare their tax returns can benefit from the proceeds of unlawful activity, and that enjoyment becomes unlawful,” he said.

Ahmad Akram also asserted that Section 85 of the AMLATFPUAA is constitutional, arguing that the Finance Minister must have the authority to add other identified offences as serious crimes under the Act.

Aside from the five tax-related charges, Rosmah also faces 12 counts of engaging in transactions involving the proceeds of unlawful activity by causing RM7,097,750 to be deposited into her bank account. The alleged offences occurred at Affin Bank Berhad, Bangunan Getah Asli branch, Jalan Ampang, between Dec 4, 2013, and June 8, 2017, and at the Inland Revenue Board Complex, Jalan Tuanku Abdul Halim, between May 1, 2014, and May 1, 2018.

The hearing will continue on Nov 12.