1MDB – rogues skip free, heroes pilloried – Tommy Thomas

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Source: Malaysiakini

BY TOMMY THOMAS

Khairuddin Abu Hassan and Matthias Chang were charged yesterday for committing offences under Section 124 L of the Penal Code which reads:

‘Whoever attempts to commit sabotage or does any act preparatory thereto shall be punished with imprisonment for a term which may extend to fifteen years.’

The word ‘sabotage’, which is fundamental to any charge under this provision, is defined in Section 130A of the Penal Code as follows:-

(h) ‘sabotage” means

a) an act or omission intending to cause harm –

(i) for the interests of foreign powers or foreign organisations;

(ii) to premises or utilities used for national defence or for war;

or

(iii) to the maintenance of essential services; or

(b) knowingly producing defective materials, premises or utilities used for national defence or for war…; ‘

The particulars of the charge are that Khairuddin lodged reports with the police and other authorities in France, England, Switzerland, Hong Kong and Singapore between June 28 and Aug 26, 2015.

How the lodging of a police report in a foreign country can constitute a criminal offence in Malaysia is totally baffling.

Whether the police or other authorities in any of these five countries take any action on the report is a matter entirely within their power and discretion.

A relevant factor may probably be whether any laws of the country in question have been violated, although some of these countries have since Sept 11 assumed extra-territorial jurisdiction for offences committed outside their boundaries.

Lodging a police report is an everyday occurrence in every society, and indeed, is encouraged as a civic duty.

Presumably Chang was charged for advising his client, Khairuddin on how to draft and present the police reports.

Hence, the arrest, detention and prosecution of Chang directly threatens the independence of the legal profession and impinges on the ability of lawyers to advise their clients without fear or favour.

The conduct criticised of Khairuddin in the charge does not come anywhere near ‘intending’ to cause harm to premises ‘used for defence or for war’ which appear in sub-sections (a)(ii) and (b) of the definition of ‘sabotage’.

Neither can his action be intended to cause harm ‘for the interests of foreign powers or foreign organisations’. That is intended for spies, traitors and terrorist organisations.

One would be hard pressed to find nationalists like Khairuddin and Chang. They are true and loyal Malaysians genuinely and sincerely acting in the interests of the people and nation.

Blatantly unjustified prosecution

That leaves an act ‘intending to cause harm….to the maintenance of essential services’, which is defined to indicate ‘banking and financial services’.

Hence, this prosecution presupposes that what Khairuddin did when he lodged police reports abroad presumably relating to 1MDB and the loss of funds is inimical to the maintenance of Malaysia’s banking and financial services is equally baffling.

Rather than treating them as heroes for endeavouring to ascertain the truth about such losses (which is a necessary first step to enhance the confidence in Malaysia’s financial and banking systems, and in consequence, strengthening them by transparency and accountability), Khairuddin and Chang are subjected to a criminal prosecution of the worst kind.

Hence, not only are they charged under the ordinary criminal laws of the land, but their charges come within the purview of the dreaded Sosma which has meant that they cannot be released pending the trial but remain in detention.

The Bar had condemned Sosma as a terrible substitute for the draconian ISA and this prosecution demonstrates the extraordinary reach of Sosma and its potential for abuse.

A constant feature of the Najib administration is that real culprits are never charged; instead, innocent persons and other victims are targeted.

So it is the ultimate irony that the real wrongdoers and culprits are not charged for flouting the law resulting in the loss of billions and the fall of confidence, both international and local, in our financial market, but courageous souls like Khairuddin and Chang are persecuted for daring to expose the truth.

This is yet again a blatantly unjustified prosecution of wholly innocent persons pursuing the truth. Accordingly, the charges against them should be dropped and both released immediately.

 

TOMMY THOMAS is a prominent lawyer specialising in corporate litigation and insolvency, and commercial and public law. He has appeared in litigation involving bonds and other sophisticated financial instruments and has dealt with administrative, labour and constitutional cases.