Archive for the 'Judiciary' Category

07
Sep
19

ECRL and pipeline projects meant to bail out 1MDB, says Najib’s ex-aide

ECRL, two pipeline projects meant to bail out 1MDB, says Najib’s ex-aide

KUALA LUMPUR, Sept 4 — The East Coast Rail Link (ECRL), the Trans-Sabah Gas Pipeline and the Multi-Product Pipeline (MPP) that sought investments from China were proposed projects to bail out debt-riddled 1Malaysia Development Berhad (1MDB) and its former subsidiary SRC International Sdn Bhd, the High Court heard today.

Datuk Amhari Efendi Nazaruddin who formerly worked as special officer to Datuk Seri Najib Razak testified in the latter’s 1MDB trial that the ex-prime minister had made offers to the China-owned companies while clearly aware of the Malaysian sovereign investment firm’s financial woes.

“Datuk Seri Najib offered state enterprise companies to be involved in these infrastructure projects, while at the same time solving the issue of 1MDB and SRC International’s debts.

“The sentence ‘while simultaneously completely resolving 1MDB and SRC (International) debts’ clearly meant that Datuk Seri Najib intended to send the message that this cooperation would also aid 1MDB and SRC International through the bailouts of 1MDB’s debts,” Amhari said, referring to talking points of a meeting he attended in capacity as Najib’s special envoy with Chinese representatives in June 2016.

Ahmari went on a diplomatic visit to China that year together with Low Taek Jho, better known as Jho Low.

The former Najib aide said he and Low were the only representatives for Malaysia in those meetings with Chinese representatives, but added that Low did most of the talking as the conversations were in Mandarin.

Other documents presented in court today included one that Amhari said was a debt resolution plan for 1MDB and SRC International and prepared by Low titled “Action Point: China-Malaysia Economic Programme”.

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ECRL, two pipeline projects meant to bail out 1MDB, says Najib’s ex-aide
4 September 2019 – Malay Mail

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03
Sep
19

Only Najib and Jho Low knew ‘full picture’ of 1MDB plan

Only Najib and Jho Low knew ‘full picture’ of 1MDB plan – former aide

NAJIB TRIAL | Only then-prime minister Najib Abdul Razak and financier Jho Low had the “full picture” of manoeuvrings in relation to 1MDB dealings at the time, a former senior aide to Najib told the Kuala Lumpur High Court today.

Testifying on the third day of the 1MDB criminal trial of his former boss, Amhari Efendi Nazaruddin (above), also labelled Low a “master manipulator” when dealing with local and foreign parties, and that much of this was known to Najib.

Amhari, 43, was testifying in front of judge Collin Lawrence Sequerah on 1MDB’s joint ventures with PetroSaudi International (PSI) and Aabar Investments PJS BVI (Aabar BVI).

Reading from his witness statement, Amhari explained that he began serving as Najib’s special officer, on loan from Bank Negara Malaysia, from 2008 when the latter was still deputy prime minister.

The eight witness explained that, among others, part of his duties when Najib became premier in 2009 was to coordinate programmes related to 1MDB, under the supervision of the late Azlin Alias, then the economy division director under the Prime Minister’s Office (PMO).

Azlin was also Najib’s private secretary at the time.

“Throughout my experience dealing with Jho (Low), I found that he is smart and manipulating when dealing with officers of various levels and ranks, from Malaysia or overseas, most of which was known to Najib.

“Therefore, only Jho and Najib have the fullest picture on the manoeuvrings they were planning.

“Jho was a master manipulator and in this situation, I can now say that I was used for insincere purposes,” Amhari told the court.

It was reported that Aabar BVI was a company set up to appear as Aabar, a legitimate subsidiary of the International Petroleum Investment Company (IPIC).

Instead, Aabar BVI was controlled by rogue Aabar officials in coordination with Low (photo).

Amhari further testified that he and Azlin only knew of alleged misappropriation involving the sovereign wealth fund after media reports began surfacing from 2014, as the duo allegedly worked in “silos”.

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Only Najib and Jho Low knew ‘full picture’ of 1MDB plan – former aide
3 Sept 2019 – malaysiakini

02
Sep
19

1MDB had PM’s written approval clause (Article 117) inserted before name change from TIA

Najib’s trial: 1MDB had PM’s written approval clause inserted before name change from TIA

KUALA LUMPUR, Aug 29 — The Terengganu Investment Authority (TIA) Berhad had a new clause inserted — known to effectively give the prime minister the power to have the final say — into the company’s constitution, even before it was renamed as 1Malaysia Development Berhad (1MDB), documents produced today in court confirmed.

Rafidah Yahaya, assistant company registrar of the Companies Commission of Malaysia (CCM), today confirmed more than 150 documents lodged with CCM by several companies related to Datuk Seri Najib Razak’s corruption trial over illegal funds allegedly originating from 1MDB.

Among other things, Rafidah verified TIA’s Memorandum and Articles of Association (M&A) dated February 27, 2009 — the company constitution which established the company.

Apart from the February 27, 2009 document which formed TIA and which had 116 Articles then, Rafidah went on to confirm a separate document dated September 2, 2009 which related to the insertion of clause Article 117.

Deputy public prosecutor Mohamad Mustafa P. Kunyalam had asked Rafidah to confirm the September 2, 2009 document, which he noted was an amendment to TIA’s Memorandum and Articles of Association and that “in this amendment Article 117 was inserted into 1MDB or TIA’s M&A”.

“True,” Rafidah had replied when testifying during the trial.

The witness was not asked to elaborate on Article 117, but reports have previously shown that it requires a written approval from the prime minister before 1MDB can decide on a wide range of issues.

Rafidah also confirmed a separate document dated September 4, 2009, which contained information on TIA’s change of name to become 1MDB.

The notification for TIA’s name change to be 1MDB was just days after Article 117 was inserted.

Rafidah is the seventh prosecution witness in this trial, and will resume her testimony before High Court judge Collin Lawrence Sequerah next Tuesday.

Yesterday, which was also the first day of trial, the first prosecution witness Datuk Farizah Ahmad had verified a long list of administrative positions held by Najib during his political career, including his role as deputy prime minister from 2004 until 2009.

Najib became prime minister and finance minister from April 2009 until May 2018.

In this trial, Najib is facing four counts of abusing his position for his own financial benefit totalling almost RM2.3 billion from the sovereign investment fund and the resulting 21 counts of money-laundering.

Hearing dates have already been fixed for this trial stretching from September until November 14.

About Article 117

At the start of Najib’s trial, lead prosecutor Datuk Seri Gopal Sri Ram had in reading the prosecution’s opening statement said the case involves the funds of 1MDB which was originally TIA, adding that Najib was allegedly “instrumental in changing” the name to 1MDB.

Sri Ram had also said then that Najib had allegedly caused amendments to the company’s articles “to place himself in sole control of important matters” of the company, and that he was also 1MDB board of advisers’ chairman.

“He used that position and that of prime minister and minister of finance to do certain acts and to exert influence over the board of 1MDB to carry out certain abnormal transactions with undue haste,” Sri Ram had said when outlining what the prosecution would seek to prove, adding that Najib’s ultimate aim was allegedly to obtain self-gratification.

In the Public Accounts Committee’s (PAC) report on 1MDB that was released in April 2016, the bipartisan parliamentary committee stated that Article 117 of 1MDB’s M&A outlined three categories of decisions that require the prime minister’s written permission.

The decisions includes any changes to 1MDB’s M&A, and any appointment and removal of 1MDB directors and top management, the report said.

According to the PAC report, the third category of decisions needing the PM’s written nod under Article 117 also cover any financial commitment, investments and restructuring by 1MDB.

The third category is also stated as covering “matters relating to guarantees issued by the Federal Government of Malaysia for the company’s interests, national interests, national security” or any federal government policy.

The federal government is the one that will finalise what amounts to “national interest”, “national security” or policy of the federal government, according to the PAC report’s explanation of Article 117.

In May 2016, the Finance Ministry announced that the 1MDB’s sole shareholder Minister of Finance Incorporated had agreed to fully implement the PAC report’s recommendations, including to dissolve 1MDB’s board of advisers, to remove Article 117 and change all references of “prime minister” to “minister of finance” in 1MDB’s M&A.

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Najib’s trial: 1MDB had PM’s written approval clause inserted before name change from TIA
29 August 2019 – Malay Mail

29
Apr
19

Complex web of money transfers involving Najib’s personal accounts

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Najib’s RM42m trial: Spider web of money transfers involving his personal accounts
29 April 2019 – Malay Mail

SRC Money Web

17
Apr
19

Najib SRC Trial Continues

SRC Trial

(Source: Malaysiakini/Bernama Infographics)

08
Apr
19

Rome Statute: A rebuttal of the alleged academic presentation to rulers

A rebuttal of the alleged academic presentation to rulers

Lim Wei Jiet

COMMENT | I refer to the alleged presentation by several academicians to the Conference of Rulers dated April 2, which has been circulating in the media lately.

I recognise that the government has decided to withdraw from the Rome Statute of the International Criminal Court, and also acknowledge that the alleged presentation is a mere executive summary (my opinions below are therefore subject to the disclosure of the full report, if any).

But there are several points raised in the alleged presentation which are rather disconcerting and warrant an intellectual legal rebuttal – lest it would lead to mischaracterisation of the issues at hand among the public.

First, it was suggested that because the Yang di-Pertuan Agong was entitled to information from the cabinet (Art 40(1)) and to make his views known to the prime minister (Reid Commission Report), then he is not a constitutional monarch in the purest sense.

However, this only proves that the king plays an advisory role in governance. This does not in any way detract from the clear provision in Art 40(1A) that he must always act in accordance to the advice of the prime minister – and consequently, that the prime minister is entirely responsible for such decisions made.

Second, reference was made to a Court of Appeal decision in Armed Forces Council, Malaysia & Anor v Major Fadzil bin Arshad [2012] 1 MLJ 313, which purportedly held that “Surely His Majesty is expected to play an effective and meaningful role as the supreme commander”.

With respect, this was merely a dissenting opinion of the Court of Appeal, and it is perplexing that this was not pointed out in the alleged presentation. Any first year law student would tell you that this quote in no way is the authoritative principle enunciated by the Court of Appeal.

Third, it was alleged that Art 38(4) of our Federal Constitution states that laws passed which directly affects the privileges, position, honours or dignities of the rulers would require the consent of the Conference of Rulers.

With respect, this mischaracterises Art 38(4), which reads: “No law directly affecting the privileges, position, honours or dignities of the rulers shall be passed without the consent of the Conference of Rulers.” The phrase “shall be passed” clearly means only laws passed in Parliament – and cannot possibly be read to include ratification of international treaties.

The assertion that Art 159(5) has been violated is even more baseless. Art 159(5) provides that amendments to the constitution on several limited provisions cannot be done without the consent of the Conference of Rulers.

But it is clear as daylight that ratification of the Rome Statute does not involve an amendment to the Constitution at all. The limited provisions referred in Art 159(5) also do not include the immunities of the the rulers. It is therefore disturbing to suggest that Art 159(5) has in any way been breached.

These arguments also presuppose that the Yang di-Pertuan Agong and rulers have absolute immunity to begin with. Since 1993, amendments were made to the constitution to allow criminal proceedings to be instituted against the king and the rulers via special courts (see Articles 32, 181, 182 and 183 of our constitution).

Hence, even domestically, the Yang di-Pertuan Agong and rulers do not have absolute immunity to begin with (albeit governed by certain special procedures) and can be held accountable for crimes. This was a crucial point which was never highlighted in the alleged presentation.

Fourth, it was alleged that Art 27 and 28(a) of the Rome Statute affects the position of the Yang di-Pertuan Agong. Again, if we look closer at Art 28(a) of the Rome Statute, the ICC only has jurisdiction to try a military commander who has “effective command and control” or “effective authority and control as the case may be”. A king who must act on the advice of the prime minister is very unlikely to be an “effective” commander of the armed forces – he is, at best, a symbolic figurehead.

Fifth, it was alleged that because the government ratified the Rome Statute without the consent of the Yang di-Pertuan Agong, this violates Art 46 of the Vienna Convention on the Law of Treaties (VCLT).

Art 46 of the VCLT says that, as a general rule, a state may not depart from treaty obligations on grounds that it is in violation of internal law regarding competence to conclude treaties. The only exception is if (a) such violation of internal law was manifest (it is considered manifest only if it would be objectively evident to any state), and (b) it concerned a rule of its internal law of fundamental importance.

Arguably, Malaysia cannot invoke the two exceptions to Art 46. Any violation cannot be considered “manifest”, nor can the internal law be of “fundamental importance” because it is clear that under the constitution no such consent by the Yang di-Pertuan Agong or Conference of Rulers – as with many other constitutional monarchies which have ratified the ICC – was required for ratification of foreign treaties.

Sixth, it was alleged that the interpretation of the “unable” or “unwilling” principle under Art 17 of the Rome Statute (which states that the ICC can only assume jurisdiction if states are “unable” or “unwilling” to act) “hanyalah berdasarkan keputusan pendakwa ICC semata-mata (based on the decision of ICC prosecutors alone).

This is untrue. Art 17 of the Rome Statute clearly provides that the ICC Court itself – and not the Prosecutor unilaterally – has the final say on whether the “unable” or “unwilling” principle is satisfied. Malaysia will have its day in court to argue the same if it does not agree with the prosecutor.

And the ICC Court will arrive at a decision, as it did in Prosecutor v Katanga (Judgment on the Appeal against the Oral Decision of Trial Chamber II of 12 June 2009 on the Admissibility of the Case) (ICC, Appeals Chamber, Case No ICC-01/04-01/07-1497, 25 September 2009).

Seventh, it was alleged that “Malaysia yang tidak terjejas apa-apa dengan jenayah ini dan tidak terkat dengan krisis Rohingya di Myanmar tidak boleh memaksa ICC untuk mengambil tindakan ke atas Myanmar walaupun selepas menjadi ahil statut Rom. (Malaysia, which loses nothing with the crime and is not involved with the Rohingya crisis in Myanmar cannot force the ICC to take action against Myanmar even after acceding to the statute).”

This is inaccurate. As long as an element of a crime has been committed in a state party, then any state party can refer the matter to the ICC (see Art 14 of the Rome Statute).

This was decided in the recent ICC decision i.e. “Prosecution’s Request for a Ruling on Jurisdiction under Article 19(3) of the Statute” (Case No ICC-RoC46(3)-01/18-37, 9 April 2018). For example, if the Myanmar military has committed genocide on Rohingyas in Bangladesh (a state party) territory, even Malaysia (a state party) can initiate a referral to the ICC independent of Bangladesh.

Eighth, it was impressed that there have been attempts to prosecute royalties in the past. The example given was King Wilhelm II of Germany who was named in the Leipzig War Crimes Trials but had fled to the Netherlands, as well as Emperor Hirohito of Japan who was allegedly under the jurisdiction of the International Military Tribunal for the Far East after World War 2, but was spared by the US.

With respect, these are false equivalences. The German kaiser was an absolute monarch. So was the emperor of Japan, who under the Japanese constitution then, had divine power over his country from the Shinto belief that the emperor was the offspring of the sun goddess Amaterasu (only in 1946 was the emperor’s title changed from “imperial sovereign” to “constitutional monarch”).

They were both absolutely in control of the military. There is a stark difference between such absolute monarchs and the modern Yang di-Pertuan Agong and rulers who are constitutional monarchs.

Further, the alleged presentation seem to have missed the fact that both Wilhelm and Hirohito were attempted to be tried even when the ICC had not existed. In today’s terms, the UN may create ad hoc tribunals as it did in Rwanda and the former Yugoslavia – regardless of whether they had ratified ICC.

This goes to highlight the fact that, as Shad Saleem Faruqi puts it, “ratification or no ratification, in the present state of international law, perpetrators may have no place to hide.”

Ninth, it was alleged that the Yang di-Pertuan Agong would be exposed to the ICC because of Malaysia’s participation in UN peacekeeping missions across the globe. This is baffling. UN peacekeeping missions are meant to prevent genocide or war crimes from happening. To suggest that the UN itself would remotely commit the same ill crimes it intended to pacify is bewildering. To my knowledge, there has never been any attempt to prosecute UN peacekeeping forces under the ICC.

Tenth, it was alleged that our laws criminalising homosexuality would expose us to a “war crime” under Art 7(2) of the Rome Statute which criminalises “persecution against any identifiable group or collectivity on… gender as defined in paragraph 3”. This is untrue.

We must look at what paragraph 7(3) of the Rome Statute say: “For the purpose of this statute, it is understood that the term “gender” refers to the two sexes, male and female, within the context of society. The term “gender” does not indicate any meaning different from the above.” Hence, “gender” under Art 7(2) clearly does not include sexual orientation – and therefore does not include persecution of homosexuals.

Eleventh, it was suggested that there are cases of selective prosecution towards Kenya and the Ivory Coast. There is a wealth of literature to counter such arguments, as well as credible international reports that war crimes have occurred there, and I do not wish to reproduce them here for brevity’s sake.

Finally, it was alleged that there is likelihood of veto by the P5 nations on the ICC investigations: Russia in the MH17 investigations, China in Rohingya genocide and US in the Israel-Palestine dispute.

It was also stated that many Asean countries are not part of the ICC. I am not going to be ignorant of the realities of international law. But Malaysia cannot stand idly by while such gross violations of humanity are occurring. If we are not part of the Rome Statute, where is our credibility and standing to shout about war crimes and genocide? We must adhere to a higher standard and not lower ourselves in imitating the worst traits of superpowers.

The public and the royalty deserve legal objectivity and accuracy on this controversial issue. If we allow crucial foreign policy decisions to be swayed by one side without considering countervailing arguments, it will not be good for the nation as a whole.

LIM WEI JIET is an advocate and solicitor of the High Court of Malaya. He is also the author of Halsbury’s Laws of Malaysia on the Federal Constitution (2019 reissue).

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A rebuttal of the alleged academic presentation to rulers
Lim Wei Jiet
8 April 2019 – Malaysiakini

07
Apr
19

The People v Najib Razak EP01: And so, it begins (Narrated by Patrick Teoh)


…source
[PODCAST] The People v Najib Razak EP 01: And so, it begins
The Malaysian Insight
Published on Apr 3, 2019




Merdeka! Merdeka! Merdeka!

The dawn of A Better Malaysia!
Rafidah Aziz, Hannah Yeoh, Ambiga at TTDI ceramah

 

Mahathir in Putrajaya ceramah

 

What happened to 1MDB’s money? – CNBC Video
Nuclear lessons for Malaysia (Part 1) (Part 2)
BN govt is directing attention to distant past and distant future, in order to distract people from present misdeeds and poor governance
Felda - A picture is worth a thousand words
How the 1MDB Scandal Spread Across the World (WSJ)
We cannot afford ridiculously expensive RM55 Billion ECRL!
All that is necessary
for the triumph of evil
is for good men
to do nothing.

- Edmund Burke
When the people
fears their government,
there is TYRANNY;
when the government
fears the people,
there is LIBERTY.

- Thomas Jefferson
Do you hear the people sing?

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