Disclosure of audio clips by MACC: Legal or not? Statement Dated 11 Jan 2020

Statement published in Malaysiakini

HAKAM Statement on Release of Audio by MACC Dated 11 Jan 2020

The recent disclosure of a clutch of videos by the MACC chief Latheefa Koya has predictably attracted wide public comments. Concerns raised include such issues as the right to privacy, right of an accused to a fair trial. In short, issues that deal with human rights, which are within the remit of this society.

Two matters are of direct relevance. First, the legality of the disclosure. Secondly, the issue of transparency.

Legality

The MACC is invested with the power to receive complaints and pursue investigations. It then can forward the papers to the relevant authority for further action, which could be to further the investigations or to prosecute any alleged offender.

In this case, it is obvious that the MACC had embarked on investigations. For example, it confirmed the authenticity of the tapes as well as the actors.

It also made a preliminary assessment that the contents had potentially violated various laws: including the Official Secrets Act 1972, abuse of power, subverting the course of justice and corruption. Some involve its jurisdiction; others that of the police. Hence it passed the papers on to the police as well to continue with investigations for matters within their scope. So the MACC acted squarely within its statutory powers.

Public disclosure

Some say that there should not have been any public airing of the tapes. And that the MACC should abide by the outcome of the investigations and present this video evidence in court if anyone is charged.

The issue then is: whether this disclosure by the relevant authority wrong in law.

It is not unusual for the disclosure of evidence in relation to ongoing investigations by the relevant authorities – even before investigations are completed and any charges levied. For example, the US Department of Justice publicly outlined in great detail the facts and evidence in relation to the 1MDB money-laundering matter – before any action was instituted.

Granted that this is not normally done. But here we are dealing with matters of grave public concern – involving an erstwhile PM who holds the position of public trust. He is accountable to the country and its people. Any breach or compromise of that trust must necessarily be of immediate public concern and interest.

Such information ought not to be kept under wraps. Else it may suffer the fate of the earlier 1MDB scandal investigations. Which, as we now know, were scuttled by the investigating authorities at the behest of high authority. The then head of MACC was if these tapes are to be believed and proved, complicit. As were many others. Essentially to stultify action against wrongdoing. But for the change of government, all alleged high crimes would have been dead and buried.

Surely that is not what we should wish to revert to. Opaque transparency which leads to the subversion of the course of justice.

Not normal crimes

This case must necessarily be distinguished from normal crimes – even heinous ones committed by individuals. Crimes such as murder and the like. These are essentially between private persons.

But in cases involving the wider public interest – involving the head of government, different considerations apply. Examples abound throughout the world. In the US in three recent cases where the president was alleged to have been involved in illegal activity, the entire facts of the investigations as they proceeded, were laid bare to the public.

Recall the Watergate scandal involving illegal wiretapping at the behest of President Nixon – which led to his resignation. Also, the Monica Lewinsky sex scandal involving president Bill Clinton. Currently, there is the ongoing disclosure of allegations against President Donald Trump regarding his alleged conduct involving trading favours with the Ukraine president.

Nearer home, the public has routinely demanded answers from the investigating authorities on the disappearance of pastor Raymond Koh, Amri Che Mat, Ruth Stepu and Joshua Helmi.

Nature of the alleged wrongdoing

The alleged wrongdoings are huge. First, subverting the course of justice. Seeking to cover up a crime by manipulated contrivances – such as creating evidence to justify an alleged wrong is a grave crime. It is an offence separate and distinct from the ongoing 1MDB or SRC criminal prosecutions.

It works like this. An accused seeks to tamper or subvert witnesses or evidence in relation to a case by asking them to lie or create false documentation. This is after a prosecution has been commenced. Law reports are studded with a litany of successful prosecutions in such cases.

Then there is a case of seeking favours from the head of another country. Favours given must be returned. This could well impact the country’s sovereignty. It is in this context that the spectre of national security was raised by Latheefa. Note that Trump’s impeachment proceedings were commenced precisely on this national security concern.

The disclosure by the DPP seconded to MACC from the AG’s chambers (later made its chief) of ongoing investigations to the alleged wrongdoer compromises the integrity of the MACC and the government.

Latheefa’s public disclosure of these alleged offences now insulates them from any manipulation by anyone. In short, no one can now surreptitiously interfere. The public will be effective gatekeepers.

Is it sub judice?

As indicated, the facts disclose offences that are distinct from the ongoing prosecutions. Hence no question of sub judice arises. In any event, sub judice arises when disclosure will prejudice the mind of the judge.

Our judges are trained to decide cases on the facts as adduced in court. Any failure to evaluate the evidence and consider with cogent reasons the evidence presented by an accused is routinely corrected by our appellate courts.

Is it contempt?

Contempt happens when one interferes or jeopardises the administration of justice. For the reasons aforesaid, there is hardly any basis for contempt. Indeed the disclosures reveal an attempt to interfere with the due administration of justice.

Disclosing investigations to potential wrongdoers so that they can cover up their tracks; or to solicit documentation to justify money laundering is what strikes at the due administration of justice.

Is reliance on the tapes legal?

Quite obviously, the tapes have been provided by a whistleblower. Any person who discloses any alleged crime to the authorities such as the police or the MACC is protected by the Whistleblower Protection Act 2010. He or she is entitled to confidentiality and is also protected against any retaliatory action.

Latheefa is hence justified in not disclosing the source of the videos as yet. Interestingly, Trump’s efforts to get the name of the whistleblower who provided tapes of his conversations relating to the Ukranian president has been consistently refused by the House of Representatives.

Right to privacy

Indeed this is an invaluable right that ought to be protected – although it is noted that there is no such right in the law of tort recognised as yet in Malaysia. In any event, the right to privacy has to yield to the wider public interest in upholding the rule of law. The right to privacy cannot prevail to prevent the disclosure of a crime.

Bank Bumiputra Malaysia Berhad (BBMB) founder Lorraine Osman’s efforts to prevent the disclosure of evidence (including of monies held in lawyers’ accounts) was rejected by our courts as there is no protection or privilege from disclosure of any communication made in furtherance of any illegal purpose or of a fact showing that any crime or fraud has been committed. See AG Hong Kong v Lorraine Osman [1993].

Significantly, taped conversations of potential terrorist acts have been relied upon routinely in curbing such acts by almost all functioning democracies. Ultimately, in any prosecution, the accused can question the authenticity of the tapes and the purport of its contents.

Motive

Finally, aspersions have been cast on Latheefa’s motive for the disclosure. Including a tie-up with a pending by-election. This is a red herring. One should address the legal issues; which this statement seeks to do.

Conclusion

It is understandable that concerns have been raised for this rather unusual and dramatic disclosure of the tapes. But given its legality, as explained, should not we applaud the MACC for disclosing the acts that seem to compromise the trust and fiduciary duty placed in our leaders?

After all, transparency, which leads to accountability, is pivotal to the Rule of Law.

 


GURDIAL SINGH NIJAR is the president of the National Human Rights Society (Hakam) and former law lecturer at Universiti Malaya.

All within reach of the law – Law Speak

From the Sun Daily

PERHAPS it could be construed as a blight of our justice system when two Court of Appeal decisions struck out actions against Datuk Seri Najib Razak, the then prime minister for alleged wrongdoing in executing his public office. In particular, allegedly pocketing 1MDB funds. On the basis that such actions for misfeasance could only be brought against “public officers”. And, ruled these courts, the prime minister was not such a person.

The decisions raised considerable disquiet in the public mind.

Indeed, the High Court judge deciding the case said rather apologetically that many may find his ruling “most surprising and quite unpalatable to swallow”.

For it then immunises a prime minister from the reach of the law by saying he is not a “public officer” – what else could he be when he draws his salary from public funds; and is entrusted with the task of fulfilling public duties on behalf of the nation?

This renders illusory: “Be ye never so high, the law is above you” – Thomas Fuller’s wisdom cited by courts the world over. By Lord Denning in the 1977 Gouriet case; and our Federal Court in PP v Ottavio (2004).

And recently by a seven-member bench of the Federal Court led by Chief Justice Tan Sri Tengku Maimun in Tony Pua v Najib Abdul Razak. Which overruled the previous decisions.

The Federal Court held that it was wrong to say that the prime minister was not a public officer.

Said Justice Nallini in delivering the Federal Court’s grounds of judgment, it would be a violation of the rule of law to exonerate the prime minister for “outrageous” conduct where he was “alleged to have acted unlawfully, illegally, recklessly and/or knowingly in relation to substantive quantities of funds to the ultimate detriment of … the general public”.

This would be “anathema to the doctrine of the rule of law and the fundamental basis of the Federal Constitution”. Because then a prime minister “can act with impunity, so as to knowingly and/or recklessly dissipate public funds and remain immune to civil action in tort …”. Such a construction of the term “public officer”, which erodes the rule of law, is repugnant and cannot prevail.”

The comprehensive, lucid and admirably analytical judgment had no difficulty in debunking the two Court of Appeal decisions that had held that the prime minister did not come within the definition of a “public officer” under the Interpretation Acts and the Federal Constitution; and could not therefore be sued for the tort of wrongdoing in public office.

First, said the judgment, any “public officer” can be sued for wrongdoing for the tort of misfeasance under the common law – defined as a body of legal rules that have been made by judges in cases, as distinct from rules and laws made by Parliament or in official statutes.

The essence of this tort is that public power cannot be abused in bad faith.

Hence it applies, said the judgment, to holders of the highest offices in administration who are entrusted with the greatest public power and corresponding duty to exercise it for the public good.

To immunise the prime minister and ministers would be repugnant to common sense and the rule of law.

Secondly, neither the Federal Constitution nor any act specifically modified or abrogated the common law as regards the liability of “public officers” as widely defined to include persons in the position of the prime minister.

The earlier decisions of the Court of Appeal and the High Court had ruled that the prime minister and members of the Cabinet are members of administration and not public officers because they were not included in the list of “public services” in Article 132 of the Federal Constitution.

This reasoning was flawed, ruled the Federal Court. Because Article 132 merely identified the bodies and persons involved in the governance structure of the country. It was not meant to do away with the common law definition of the term “public officer”.

The judgment is remarkable in many respects. It locates the tort of misfeasance in public office as grounded in the rule of law. Thus placing all within the reach of the law.

It reinforces executive accountability to legal authority. It upholds the public interest in bringing public servants guilty of outrageous conduct to book.

It dispels the notion that anyone – no matter how high – who abuses his public office is free to act with impunity. And it accords any citizen the standing to make a claim for the loss suffered when a prime minister entrusted with public funds uses them for his personal benefit – if indeed he or she can prove such damage.

The case will now proceed to trial for the litigant to prove the misappropriation of public funds and the loss suffered.

This is a landmark judgment that resoundingly places the role of the judiciary in preserving the “internal architecture” of our constitution – which comprises the rule of law and the separation of powers.

It will long stand out as a judgment which resonates with the words of Montesquieu – a French judge and philosopher, famous for his articulation of the theory of separation of powers: “There is no greater tyranny than that which is perpetrated under the shield of the law and in the name of justice.”

Gurdial is a former law professor and President of HAKAM. 

Abu Talib: Probe on 1MDB almost complete

Source: Malay Mail

Former attorney general Tan Sri Abu Talib Othman arrives at Ilham Tower, Kuala Lumpur June 7, 2018. — Picture by Shafwan Zaidon

Former attorney general Tan Sri Abu Talib Othman arrives at Ilham Tower, Kuala Lumpur June 7, 2018. — Picture by Shafwan Zaidon

KUALA LUMPUR, June 22 — 1Malaysia Development Berhad (1MDB) special committee chairman Tan Sri Abu Talib Othman said the multiple investigations into the troubled state-owned investment fund are almost complete.

He told reporters, after meeting Malaysian Anti-Corruption Commission (MACC) chief Datuk Mohd Shukri Abdull and his predecessor Tan Sri Abu Kassim Mohamed, that the 1MDB taskforce had briefed him on the latest developments.

“Investigations are progressing well and almost ready to be submitted to the Attorney General Chambers for its attention,” he said as he was leaving Ilham Tower here, where the meeting took place. Read more

Report: Putrajaya widening 1MDB dragnet to BN politicians, law firms

Source: Malay Mail

File photo shows a man walking past a 1MDB billboard in Kuala Lumpur  — Picture by Yusof Mat Isa

KUALA LUMPUR, June 21 — The multi-agency probe on the 1Malaysia Development Berhad (1MDB) scandal could entangle Barisan Nasional (BN) politicians or political parties that received the state investment company’s funds.

According to Singapore daily The Straits Times (ST), the investigation would also be expanded to include law firms that handled transactions for such personalities and entities.

Citing senior government officers and financial executives, the ST said 1MDB case investigators are scrutinising the flow of funds from 1MDB-linked firms and former prime minister Datuk Seri Najib Razak’s bank accounts to BN politicians.

The officials would not identify the politicians or law firms as the ongoing investigations were now at a “sensitive” point, the paper reported.

The ST noted allegations that 1MDB changed from its initial nature as an investment fund into a “private political slush fund” for BN, adding that there were claims of BN politicians being funded by 1MDB money. Read more

Swiss parliament rejects call to return 1MDB-linked funds to Malaysia

Source: The Star Online

ZURICH: Switzerland’s parliament rejected on Thursday a bid to amend the law handling ill-gotten bank profits seized by authorities that had aimed to return more than US$100mil (RM390mil) linked to scandal-hit sovereign fund 1Malaysia Development Berhad (1MDB) to the Malaysian people.

Champions of the campaign had acknowledged they faced an uphill struggle to get the idea through parliament, whose lower house shot the plan down at the request of the government.

Foreign Minister Ignazio Cassis told lawmakers the measure was too broad and violated the separation of powers between the government and the courts. He said current law allowed repatriation of assets seized from toppled regimes.

He cited an accord signed with the World Bank in December under which Switzerland would return to Nigeria about US$321mil in assets seized from the family of former military ruler Sani Abacha.

Confiscated bank profits from dubious deals are a different story. Normally they flow into the general Swiss budget. Read more

Australian PM’s son says he was sidelined for blowing whistle on 1MDB scandal

Source: The Edge Markets

Alex Turnbull, son of the Australian Prime Minister, has claimed he was sidelined at Goldman Sachs after he had blown the whistle on billions of dollars of questionable deals involving 1MDB.

The Australian reported that while Alex was working with Goldman Sachs in Singapore in 2012-13, the bank had raised US$6 billion in bonds for 1MDB. Read more

Top GOP donor sought $75M fee if DOJ ended probe into Malaysian scandal: report

Source: The Hill

Top GOP donor sought $75M fee if DOJ ended probe into Malaysian scandal: report

© Getty Images

A longtime Republican donor allegedly sought to make tens of millions of dollars if the Department of Justice (DOJ) dropped its investigation into an investment deal connected to the Malaysian prime minster.

Elliott Broidy and his wife, attorney Robin Rosenzweig, reportedly discussed in emails over the past year arranging a consulting contract with Jho Low, the businessman at the center of an investment scandal that ensnared Malaysian leader Najib Razak.

One email includes a proposal for a $75 million fee for the couple if the Justice Department dropped its investigation into the scandal, The Wall Street Journal reported Thursday.

Trump ally offered to help Jho Low in DoJ’s 1MDB probe, says report

Source: Free Malaysia Today

jho-low-afp-1

Citing emails, The Wall Street Journal (WSJ) says a top Republican donor close to President Donald Trump discussed setting up a consulting contract with businessman Low Taek Jho, better known as Jho Low. (AFP pic)

PETALING JAYA: In the latest turn of events surrounding 1MDB, a US paper claims a top Republican donor close to President Donald Trump was in negotiations for a US$75 million (RM295 million) fee if the Department of Justice (DoJ) dropped its investigation into the state fund.Citing emails from Elliott Broidy and his wife, Robin Rosenzweig, The Wall Street Journal (WSJ) said they had discussed setting up a consulting contract with businessman Low Taek Jho, better known as Jho Low. Read more

1MDB will shut down after debts paid, says Irwan Serigar

Source: The Malaysian Insight

Pro-democracy group Bersih had staged an 1MDB protest in Kuala Lumpur, Malaysia back in November 19, 2016. REUTERS/Edgar Su

TROUBLED sovereign wealth fund 1Malaysia Development Bhd (1MDB) will be shut down once it settles all its debts, company chairman Dr Mohd Irwan Serigar Abdullah was quoted as saying by media reports.

This comes a day after Swiss authorities say they will absorb RM400 million in 1MDB-linked funds languishing in Swiss bank accounts.

At a press conference in Universiti Malaysia Kelantan last night, Treasury secretary-general Irwan Serigar said the debts would be paid from revenue obtained from the government’s mega projects such as the development of the Tun Razak Exchange (TRX) building, the East Coast Rail Link (ECRL) and the second Mass Rapid Transit (MRT) project.

“Soon, residents who own a place in the TRX city will pay rent, and we will also sell land plots of Bandar Malaysia which will be developed with public transport such as high-speed train, ECRL and MRT,” Irwan was quoted as saying by the New Straits Times daily.

“Through this, we will pay the debts… Rome wasn’t built in a day, we will not get the revenue immediately, instead it will take more than 10 years to generate income from the long-term development.

“Once the debts are paid, there will be no need for 1MDB.” Read more

Malaysia drops seven spots in anti-graft ladder

Source: The Malaysian Insight

Transparency International-Malaysia chairman Akhbar Satar says Malaysia’s ranking is likely to fall in the next few years until major corruption scandals are resolved. – The Malaysian Insight pic by Kamal Ariffin, February 22, 2018.

FAILURE to resolve major corruption scandals, like 1Malaysia Development Bhd (1MDB), Tabung Haji and Felda, is one of the main reasons Malaysia’s ranking fell in a global corruption index, an international anti-graft group said today.

“These scandals affected our score,” said Transparency International-Malaysia (TI-M) chairman Akhbar Satar at the launch of the Corruption Perceptions Index in Kuala Lumpur this morning.

Until these scandals are resolved satisfactorily, Akhbar said, Malaysia’s ranking is likely to further fall in the next few years.

Malaysia fell to No. 62 in the index last year, down seven spots from 2016, marking its lowest position since the index began in 1995.

The CPI ranks 180 countries by perceived levels of public sector corruption, according experts and business people. It uses a scale of 0 to 100, where 0 is highly corrupt and 100 is very clean.

Malaysia, since its 2014 score of 52, has been dropping every year, passing the halfway point in 2016 (49) and reaching 47 in 2017.

“We are at the same spot as Cuba. We should be better than them,” said Akhbar. Read more