OCTOBER 15 — The Malaysian Bar deplores the misuse of the Penal Code and the Security Offences (Special Measures) Act 2012 (“SOSMA”) by the authorities in the recent arrest, detention and prosecution of Dato’ Sri Khairuddin Abu Hassan (“Dato’ Sri Khairuddin”), and his lawyer, Matthias Chang, a Member of the Malaysian Bar.
Dato’ Sri Khairuddin and Matthias Chang were arrested and detained under SOSMA on 18 September 2015 and 8 October 2015, respectively. It is reported that they were being investigated under Section 124K (sabotage) and Section 124L (attempt to commit sabotage) of the Penal Code. Dato’ Sri Khairuddin filed a habeas corpus application, which was fixed for hearing on 13 October 2015. It was reported that Matthias Chang was about to file a habeas corpus application as well.
However, both men were charged on 12 October 2015 in the Magistrates’ Court, for the offence of attempting to commit sabotage under Section 124L of the Penal Code. It has been alleged that the act of sabotage is in relation to the lodging of reports about possible corrupt practices, with law enforcement agencies in five foreign countries — France, the United Kingdom, Switzerland, Hong Kong and Singapore — that was purportedly intended to be a conspiracy to cause harm to the banking and financial system of Malaysia. If convicted, they could be sentenced for up to 15 years in jail. Both men have applied to the High Court to challenge the prosecution against them.
Section 124L of the Penal Code is within Part VI of the Penal Code. Under SOSMA, all offences under Part VI and Part VIA of the Penal Code are considered security offences, triable in the High Court.
It is therefore inexplicable that both men were charged in the Magistrates’ Court. Further, it is disconcerting that the prosecution then sought a further period of detention of 30 days pending an application to transfer their cases to the High Court. The Magistrate allowed a detention of 14 days.
Detention of an accused person subsequent to charge pending the prosecution’s transfer application is unjust and unlawful. In this case, it appears to be an undisguised attempt to detain both men for an additional period not sanctioned by law.
In any event, it is perplexing that the prosecution would see this case as involving a security offence. Part VIA of the Penal Code was introduced to combat security offences arising out of acts of terrorism. An action to expose possible corruption within the corridors of government cannot, by any stretch of the imagination, fall under Part VIA of the Penal Code, and neither is it a security offence under international law.
The international law element cannot be ignored. Malaysia has signed the United Nations Convention against Corruption. It therefore recognises that international cooperation is necessary in combatting corruption, terrorism and other international crimes. It has also launched numerous national initiatives calling on individuals to partner in the effort to end corruption.
As such, it beggars belief that when a person exercises his own personal initiative to ask overseas law enforcement agencies to investigate possible corrupt practices at the highest levels of the Government, it is seen by the authorities as an attempt to sabotage the banking and financial system of Malaysia.
In this borderless world, transboundary corruption is a major scourge that requires global partnership and worldwide efforts. Malaysia regularly asks law enforcement agencies from foreign countries for assistance. Here is a case of a Malaysian citizen seeking help — from law enforcement agencies in foreign countries — to address alleged cross-border corruption. Some of the parties allegedly involved in this nefarious web of transactions operate in the jurisdictions in which reports were lodged.
We are already witnessing cross-currents between the Attorney General’s Chambers and Bank Negara Malaysia about whether or not 1Malaysia Development Berhad (“1MDB”) had violated Malaysian law in terms of exchange control permission for overseas investments. We saw similar attempts to interfere with the Malaysian Anti-Corruption Commission in its attempts to investigate the transfer of MYR2.6 billion and MYR42 million into the Prime Minister’s private bank accounts.
When credible concerns are raised about whether our own mechanisms to investigate corruption have been crippled or compromised, it is understandable that recourse is had to overseas law enforcement agencies. The Government’s response is therefore highly questionable.
The charge against Matthias Chang attracts additional opprobrium because he has consistently stated that his actions were in his capacity as an advocate and solicitor advising his client. His arrest, detention and prosecution are therefore in clear violation of the United Nations Basic Principles on the Role of Lawyers, which mandates that lawyers not be identified with their clients or their clients’ causes simply by the act of representing them. It would appear that the chilling effect sought to be achieved by the authorities is to discourage lawyers from acting for known critics of the Government.
Moreover, the decision to charge both men on the eve of Dato’ Sri Khairuddin’s habeas corpus application (and before Matthias Chang’s intended habeas corpus application) could easily be construed as an attempt to avoid judicial scrutiny into the merits of the cases against them. It would appear that the prosecution was sufficiently concerned that the habeas corpus applications would be allowed by the court, such that it took steps to pre-empt them. In this regard, it would be pertinent to know whether Bank Negara Malaysia filed any affidavit in Dato’ Sri Khairuddin’s habeas corpus application confirming that the purported conduct by him (and Matthias Chang) was indeed an attempt to sabotage the banking and financial system of Malaysia.
The conduct of the authorities in Dato’ Sri Khairuddin’s and Matthias Chang’s case leaves much to be desired. The misuse of SOSMA and criminal procedures for the purposes of alleged Penal Code offences is unacceptable. The Malaysian Bar demands that the rule of law be respected, and urges that the prosecution against both men be withdrawn and they be released forthwith.