Concerned Lawyers for Justice (CLJ)
27th July 2016
What transpired in the past week, especially with the
filing of the Verified Complaint by the US Department of Justice (DOJ)
on July 20th, against the “international conspiracy to launder money
misappropriated from 1Malaysia Development Berhad (“1MDB”), [1] triggers the
pressing need for the Conference of Rulers, in accordance with the respective
Royal Highnesses’ wisdom and discretion, to exercise the inherent and residual
powers to intervene over the matter with all due haste, especially since it
involves allegations of billions of dollars misappropriated from the Malaysian
public funds.
INTERFERENCE WITH LOCAL INVESTIGATIONS
Over the course of more than a year, Malaysians have
waited patiently for the investigations conducted locally to be concluded and
for the outcome and findings thereof, only to helplessly witness oppressive
measures obstructing due process of law taking place instead.
Officers tasked to look into the scandal, including
those from the Attorney General’s Chambers (AGC), the Malaysian Anti Corruption
Commission (MACC), and the Royal Malaysian Police Force (PDRM), were harassed,
raided, detained and subjected to arbitrary administrative actions by the
powers that be. The finding of the Public Accounts Committee (PAC) on the
scandal was doctored by the PAC Chairman without the consent and knowledge of
the other PAC members. The Auditor General Report on 1MDB is classified as official
secret under the Official Secret Act (OSA), precluding the same from being
publicly scrutinized, in direct contravention of Article 107 of the Federal
Constitution. And the new Attorney General, Apandi Ali, appears to act more
like a defense counsel for the Prime Minister, Najib Razak and 1MDB, than as a
trustworthy and responsible public prosecutor.
All the above leads to no surprise that the local
probe into the scandal fail to uncover what enforcement agencies from foreign
jurisdictions, particularly in the US, have now managed to come to clear
conclusion of trans-border money laundering involving funds misappropriated
from 1MDB.
QUASI CRIMINAL PROCEDURE FOR FORFEITURE OF ASSETS
The statements of facts laid bare at considerable
length in the DOJ’s cause-paper consists of serious and grave crimes,
notwithstanding the Verified Complaint involves a civil procedure. In fact, the
very procedure requires the establishment of criminal activity as ingredient to
be fulfilled for the action in rem to succeed, which is not too
dissimilar from our own local law, particularly under the Anti-Money
Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act
2001 (AMLA).
Paragraph 6 of the Complaint summarizes the nature of
the crimes alleged: that between 2009 and 2013, “multiple individuals,
including public officials and their associates, conspired to fraudulently
divert billions of dollars from 1MDB through various means, including by
defrauding foreign banks … to launder the proceeds of that criminal conduct,
including in and through U.S. financial institutions.” [2]
While locally there
seems to be attempts to downplay the severity of the allegations involved, especially
by those aligned to the Najib Razak’s administration, it is noteworthy that all the facts stipulated were verified by no less
than a special agent of the US Federal Bureau of Investigation (FBI), Robert B.
Heuchiling, based from “information supplied by … law enforcement officers,
experts, and other witnesses, as well as … investigation … of the [FBI].” [3]
Further, the FBI and our MACC had both confirmed that the MACC assisted the FBI
in the investigations, [4] thus putting the question whether the US was
meddling over our internal affairs as a non-issue, as it was our own agency
that provided the commitment for the cooperation into probing the cross-border
criminal activity, and more so since the action filed in the US is pursuant to
allegations of misappropriated funds laundered into the US’ jurisdiction.
ALLEGATIONS OF CORRUPT PRACTICES AT THE HIGHEST LEVEL
The allegations in the DOJ case on 1MDB illustrates
high level corruption involving high level officials that seem to be too
cunning and too powerful to be brought to justice here at home.
In fact, the much cited ‘Malaysian Official 1’ in the
DOJ Complaint, that is said to have received USD 20 million (approximately RM72
million) that was misappropriated from 1MDB through a bank account held in the
name of Good Star Limited in 2011 [5] and USD 681 million (approximately RM2.08
billion) through a bank account held in the name of Tanore Finance Corporation
in 2013 [6], fits squarely with Najib Razak’s profile.
This is so since ‘Malaysian Official 1’ is defined in
paragraph 28 of the DOJ Complaint as “a high-ranking official in the Malaysian
government who also held a position of authority with 1MDB” — corresponding
perfectly with Najib Razak’s position as the Prime Minister of Malaysia, and
Chairman of the Board of Advisors of 1MDB; while paragraph 29 states that ‘Malaysian
Official 1’ is a relative of the co-founder of Red Granite Pictures, Riza Aziz —
consistent with the fact within the public knowledge that Riza Aziz is the step
son of Najib Razak.
This is fortified even further when paragraph 263 of
the Complaint states in the clearest term that ‘Malaysian Official 1’ is the
person referred in Apandi Ali’s press statement dated January 26, 2016, wherein
Apandi Ali confirmed that a sum of RM2.08 billion were transferred into Najib
Razak’s personal bank account (despite curiously finding him not guilty of any
offence), [7] literally leaving very little to no room for doubt that the grave
allegations made in the Complaint implicates Najib Razak directly, and, unless
immediate actions are taken to clear his name, tarnishes the good name of the
whole nation almost beyond repair, but for the Royal Highnesses in the Conference
of Rulers to recognize the need for immediate intervention.
SACROSANCT DUTY OF THE YDPA AND THE MALAY RULERS
It is said that desperate times call for desperate
measures. In which regard, and in all humility, the Concerned Lawyers for
Justice (CLJ) craves that the Yang di-Pertuan Agong (YDPA), along with the
Royal Highnesses of the members of the Conference of Rulers, would have the
wisdom to take the necessary steps to intervene in solving this whole scandal,
to summon those implicated in the Verified Complaint to appear before Your
Royal Highnesses to show cause and to answer to those serious allegations to
Your Royal Highnesses’ satisfactions.
This is especially pressing since the investigations
and enforcement against the suspected offenders of the scandal related to 1MDB
at the local level had been seriously undermined and compromised, and there is
a sense of ubiquitous helplessness among the people witnessing the system being
manipulated by those in power to the detriment of the rule of law.
It is our solemn believe that the Malay Rulers and
the YDPA are placed at the most sacred and appropriate position as the
constitutional guardian of the rule of law and order in the country, overseeing
all the three branches of the Government. The power and duty to administer the
country were delegated from the Malay Rulers to the respective elected and
appointed Prime Minister and his administration, and following which the Prime
Minister and every other Ministers holding office are required to take the “Oath
of Office and Allegiance” before the YDPA, to preserve, protect and defend the
Constitution as per Article 43(6) of the Federal Constitution.
Therefore, when there are fundamental breach of this
oath by those to whom such power to administer were delegated to, it is
submitted that the YDPA and the Malay Rulers, being the source of such
legitimacy to rule, would have the sacrosanct duty and inherent powers to
intervene.
The enlightened opinion expressed by Justice Hamid
Sultan in his dissenting judgment in Pathmanathan Krishnan v Indira Gandhi
Mutho and other appeals [2016] 1 CLJ 911, although remains non-binding upon
our Courts, may serve as useful guiding principle for our Rulers in exercising
such inherent and residual powers, when His Lordship said that the oath of
office of the YDPA under Article 37(1) of the Federal Constitution to uphold
the rules of law and order in the country, “gives constitutional, judicial
power to HRH to arrest any form of breach of rule of law as judicial power to
do so is entrenched in the oath of office of HRH.”
The time has come for the Their Highnesses to act.
And the Rakyats are looking up to their Rulers to put an end to this
unprecedentedly high-level, prolonged, embarrassing and treacherous scandal.
Mohd Hafizuddin Khan Norkhan
Executive Director, Concerned
Lawyers for Justice
Fatihah Jamhari
Secretary-General, Concerned Lawyers
for Justice
Aidil Khalid
Campaign Co-ordinator, Concerned
Lawyers for Justice
References:
[1]
Refer to the DOJ complete cause paper of the Verified Complaint for Forfeiture
in Rem dated 20th July 2016, over allegation of “an international conspircy to
launder money misappropriated from 1Malaysia Development Berhad (“1MDB”)” at
https://www.justice.gov/opa/file/877166/download
[2]
Ibid paragraph 6
[3]
Ibid page 136
[4]
http://www.thestar.com.my/news/nation/2016/07/24/macc-fbi-probe-un-convention/
[5]
Ibid No. 1, paragraphs 99 to 102
[6]
Ibid No. 1, paragraphs 259 to 264
[7]
http://www.agc.gov.my/agcportal/uploads/files/Publications/Press/KENYATAAN%20MEDIA%20BERHUBUNG%20KERTAS%20SIASATAN%20KES%20SRC%20INTERNATIONAL%20DAN%20RM2_6%20BILION%20YANG%20DIKEMUKAKAN%20KEMBALI%20OLEH%20SPRM.pdf
Note: This is a Press Statement released today.
#MalaysianOfficial1
