Archive for the 'Judiciary' Category

29
Apr
19

Complex web of money transfers involving Najib’s personal accounts

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

SRC Money Web

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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).

…more
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

06
Apr
19

Summary of Najib’s SRC charges

(Graphic source: Malaysiakini)

04
Apr
19

AG’s opening statement at Najib’s SRC trial

AG’s opening statement at Najib’s SRC trial

The following is Attorney General Tommy Thomas’ opening statement at Najib’s SRC trial, reproduced in full:

May it please Your Lordship,

1. It is my duty and privilege to open the first trial in our courts against a former Prime Minister, who for nearly a decade, occupied the most powerful office in the land and wielded near absolute power, which carries with it enormous responsibility, which my office intends to discharge in order to establish that the Accused is guilty of the seven (7) charges that he is facing before Your Lordship.

2. The Accused during his entire period in office as Prime Minister, at which time these offences were committed, simultaneously held the office of Minister of Finance, thereby combining maximum political power and control of the nation’s purse. In holding the office of the Prime Minister, and thus the nation’s highest elected public officer and Head of Government, the highest trust was reposed by our people in the Accused. In such circumstances, the law demands the highest standards of care in the discharge by the Accused of his duties and obligations as trustee of public offices.

3. Not being satisfied with the holding of the twin positions of Prime Minister and Minister of Finance, the Accused was also appointed the Chairman of the Board of Advisors of 1Malaysia Development Berhad (“1MDB”) and Advisor Emeritus in its fully owned subsidiary, SRC International Sdn. Bhd. (“SRC International”). A common feature of both companies was that the true power in directing and managing their affairs did not lie with the Board of Directors, as is required by law and is the universal practice wherever companies carry on business, but in the person of the Accused by virtue of his holding these two positions.

4. The operation of Article 8(1) of the Federal Constitution that “all persons are equal before the law” is amply demonstrated by this trial. A former Prime Minister is charged under due process in the ordinary court of the land, like any other Accused. The Accused is not above the law and his prosecution and this trial should serve as precedents for all future holders of this august office.

My Lord,

5. This trial is the first of many kleptocracy-1MDB-linked prosecutions. As required under Section 179 of the Criminal Procedure Code, I will state briefly the nature of the offences charged and the evidence by which the Prosecution proposes to prove the guilt of the Accused.

6. In the instant prosecution, the Accused is charged for the following offences —

a. One (1) charge under Section 23 of the MACC Act 2009 for abuse of position;
b. Three (3) charges under Section 409 of the Penal Code for criminal breach of trust;
c. Three (3) charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering; and

7. To prove the prosecution case beyond a reasonable doubt, the Prosecution will be relying on direct and circumstantial evidence, both oral and documentary, to prove that the Accused, on the dates, times and manner as contained in the charges, is guilty of each of the charges against him.

One (1) charge under Section 23 of the MACC Act 2009 for abuse of position

8. For the charge under Section 23 of the MACC Act 2009, evidence will establish that the Accused at all material times, as an officer of a public body, to wit, as Prime Minister and Minister of Finance, used his office and/or position to obtain for himself a gratification of RM42 million. Evidence will abundantly establish that the Accused was directly involved in the decision on behalf of the government of Malaysia to give government guarantees for the loans amounting to RM4 billion received by SRC International Sdn Bhd from Kumpulan Wang Persaraan (Diperbadankan) (“KWAP”).

9. In proving the ingredients of Section 23 of the MACC Act 2009, evidence — oral, documentary and/or circumstantial, will be led by the prosecution to establish the following —

a. Proposed establishment of SRC International Sdn Bhd;

b. Proposed setting-up grant of RM3 billion;

c. SRC International’s request for a government loan for RM3.95 billion;

d. The appointment of SRC International’s Board of Directors, and the appointment of one Nik Faisal Ariff Kamil as CEO of SRC International;

e. Matters that led to the approval of the Government of Malaysia through the Ministry of Finance for the issuance of a RM2 billion government guarantee in favour of SRC International;

f. Matters that led to the approval of the Government of Malaysia through the Ministry of Finance for the issuance of a further RM2 billion government guarantee in favour of SRC International;

g. Monies totalling RM42 million, sourced from SRC International, were channelled through the company accounts of Gandingan Mentari Sdn Bhd (a wholly-owned subsidiary of SRC International Sdn Bhd) and Ihsan Perdana Sdn Bhd (purportedly appointed as SRC International’s corporate social responsibility partner);

h. The Accused, between 17 August 2011 and 8 February 2012, as a result of the aforesaid, had received as gratification the said monies totalling RM42 million into his AmPrivate Banking-1MY no. 211-202-201188-0 and AmPrivate Banking-MY no. 211-202-201190-6 bank accounts.

Three (3) charges under Section 409 of the Penal Code for criminal breach of trust

10. For the charges under Section 409 of the Penal Code, evidence will establish that the Accused at all material times, as agent, to wit, as Prime Minister and Minister of Finance, and Advisor Emeritus of SRC International, whilst entrusted with monies belonging to SRC International, committed criminal breach of trust in respect of the RM27 million, RM5 million and RM10 million belonging to SRC International.

11. In proving the ingredients of Section 409 of the Penal Code for criminal breach of trust, evidence — oral, documentary and/or circumstantial, will be led by the prosecution to establish the following —

a. A Special Resolution was passed to amend SRC International’s Articles of Association to appoint the Accused as Advisor Emeritus. As Advisor Emeritus the Accused shall advise the Company’s Board on material matters and matters of strategic interest to Malaysia, and that the Board shall give due consideration to and implement any advice of the Advisor Emeritus in the best interest of the Company;

b. That the Accused had dishonestly caused himself to wrongfully gain RM42 million and/or caused SRC International to wrongfully lose RM42 million;

c. That between 24 and 29 December 2014, a sum of RM27 million belonging to SRC International was remitted to the Accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account through the company accounts of Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd;

d. That between 24 and 29 December 2014, a sum of RM5 million belonging to SRC International was remitted to the Accused’s AmPrivate Banking-MY no. 211-202-201190-6 account through the company accounts of Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd; and

e. That between 10 February and 2 March 2015, a sum of RM10 million belonging to SRC International was remitted to the Accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account through the company accounts of Gandingan Mentari Sdn Bhd and Ihsan Perdana Sdn Bhd.

Three (3) charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering

12. For the charges under Section 4(1)(b) of the Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 for money laundering, evidence — oral, documentary and/or circumstantial, will be led by the prosecution to establish the following —

a. That the Accused on or about 26 December 2014 engaged in money laundering to wit by receiving RM27 million, being the proceeds of an unlawful activity, in the Accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account;

b. That the Accused on or about 29 December 2014 via a Real Time Electronic Transfer of Funds and Securities (“RENTAS”) instruction, remitted RM27 million, being the proceeds of an unlawful activity, from the Accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account to the company account of Permai Binraya Sdn Bhd;

c. That the Accused on or about 26 December 2014 engaged in money laundering to wit by receiving RM5 million, being the proceeds of an unlawful activity, in the Accused’s AmPrivate Banking-MY no. 211-202-201190-6 account;

d. That the Accused on or about 29 December 2014 via a Real Time Electronic Transfer of Funds and Securities (“RENTAS”) instruction, remitted RM5 million, being the proceeds of an unlawful activity, from the Accused’s AmPrivate Banking-MY no. 211-202-201190-6 account to the company account of Putra Perdana Construction Sdn Bhd;

e. That the Accused on or about 10 February 2015 engaged in money laundering to wit by receiving RM10 million, being the proceeds of an unlawful activity, in the Accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account;

f. That the Accused on or about 10 February 2015 remitted RM10 million, being the proceeds of an unlawful activity, from the Accused’s AmPrivate Banking-1MY no. 211-202-201188-0 account to the Accused’s AmPrivate Banking-MY no. 211-202-201190-6 account;

g. That the Accused had issued a total of 15 personal cheques from his AmPrivate Banking-MY no. 211-202-201190-6 account totalling an approximate sum of RM10,776,514.00;

h. Evidence will also establish that in December 2014, the Accused’s credit card was charged US$130,625 for expenses made at Chanel, an exclusive fashion store in Honolulu; and

i. Evidence will establish that the personal cheques were issued for, among others, payment for renovation works carried out at the Accused’s residence at No.11 Jalan Langgak Duta, Kuala Lumpur, the Accused’s residence in Pekan, Pahang and cheques issued to various Barisan Nasional component political parties.

My Lord,

13. The burden is now on the Prosecution to prove, beyond a reasonable doubt, that the Accused, Mohd. Najib bin Hj Abd Razak is guilty of the criminal charges preferred against him at this trial.

…source
AG’s opening statement at Najib’s SRC trial
April 03, 2019 – theedgemarkets.com

04
Apr
19

Malaysia ex-PM Najib goes on trial

Malaysia ex-PM Najib goes on trial

Malaysia’s former prime minister Najib Razak (C) leaves a court in Kuala Lumpur on 3 April, 2019 after his trial over alleged involvement in the looting of sovereign wealth fund 1MDB, a state investment vehicle established to develop the economy of the Southeast Asian nation. (Mohd Rasfan / AFP Photo)

Malaysia’s disgraced ex-leader Najib Razak pleaded not guilty to all charges against him as he went on trial Wednesday over a multi-billion-dollar fraud, almost a year after his shock election loss.

The 65-year-old faced the first of several trials over his alleged involvement in the looting of sovereign wealth fund 1MDB, a state investment vehicle established to develop the economy of the Southeast Asian nation.

The former premier and his cronies are accused of plundering billions of dollars from the fund and spending it on everything from high-end real estate to artwork and a luxury yacht.

He had been tipped to win another term in office easily last year and extend his coalition’s six-decade stranglehold on power, only to be soundly defeated by his former boss, Mahathir Mohamad, who rode a wave of public anger over 1MDB to the premiership.

In the months that followed, once-dormant investigations into the controversy were relaunched and Najib was hit with dozens of corruption charges linked to the plundering of the fund.

A small crowd of supporters was waiting for Najib as he arrived at the Kuala Lumpur court ahead of his trial, and he prayed with them for a few minutes before entering the building to shouts of “Long Live Najib”.

‘Near absolute power’

Looking relaxed in the dock, he denied seven corruption and money-laundering charges related to the alleged theft of 42 million ringgit (US$10.3 million) from SRC International, a former 1MDB unit. It is just a fraction of the hundreds of millions of dollars that he allegedly stole.

Opening the prosecution, Attorney-General Tommy Thomas told the High Court it was the “first trial in our courts against a former prime minister, who for nearly a decade occupied the most powerful office in the land and wielded near absolute power.

“Such privilege carries with it enormous responsibility.

“The accused is not above the law,” he added.

After the first witness, an official from the Companies Commission of Malaysia, gave largely technical evidence related to corporate records, the trial was adjourned.

The judge set the next hearing for 15 April, and trial dates until 10 May. Najib left without commenting, to cheers from his supporters waiting outside court.

…more
Malaysia ex-PM Najib goes on trial
4 April 2019 – Asean Post




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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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