Separate the Attorney-General’s powers to correct a flaw in Malaysian legal system !

Tan Sri Abdul Gani Patail

Revise Attorney-General's powers

There is a flaw in our system, inherited since before Independence, that may prevent the public from giving their complete trust.

THE political challenges faced by Datuk Seri Najib Tun Razak continue to mount. He has issued several denials but his detractors are showing no sign of stopping.

Last week, internationally respected newspaper The Wall Street Journal published a story alleging that money from 1MDB somehow found its way into Najib’s personal bank accounts. Najib has denied any wrongdoing and he is said to be mulling legal action against the newspaper.

The response by Attorney-General Tan Sri Abdul Gani Patail is particularly noteworthy.

According to Gani, a multi-agency task force will probe the allegation, looking into the trail of money from 1MDB and examining if there has been any wrongdoing.

Even though Gani did not spell it out word by word, the implication is that our Prime Minister has not stopped agencies in his own Government from conducting what could become a criminal probe against him.

This is a healthy step and it is also the right decision by the Prime Minister. The whole saga has been a protracted one and I look forward to its conclusion.

According to reports that cited Gani, the multi-agency investigation team comprises the Malaysian Anti-Corruption Commission (MACC), the police and our central bank, Bank Negara.

I welcome the formation of this special team. It is imperative that all allegations are investigated thoroughly. To do so does indeed require cooperation from various agencies.

Having said that, I have a concern about how the public will react once this team concludes the investigation.

The most important element in any probe that involves public figures is public confidence. For the public to accept the outcome of the investigation, they must believe in the integrity of the agencies.

Unfortunately, there is a flaw in our system that may prevent the public from giving their complete trust. We inherited that flaw since before Independence and until today we have never tried to fix it.

The flaw centres on the dual roles of the Attorney-General. He is the principal legal adviser to the Government and he is also the one with sole discretion to decide whether or not to prosecute.

Yes, there are safeguards to ensure he makes prosecutorial decisions with independence and integrity. But that is a matter of procedures.

We are talking about a high-profile investigation where public confidence and public perception are just as important as everything else.

Imagine a situation where the investigation team finds that the allegations are false. They then submit their files to the Attorney-General.

The Attorney-General then would logically decide that there will be no prosecution. How will the public react to this?

My worry is that the public will simplistically say that we are seeing a cover-up. Of course, we will not know the detailed findings from the investigation and we can’t expect the agencies to be disclosing information in great detail either.

But we may end up with the public accusing the Attorney-General of merely protecting his boss whom he has been advising all this while. That would be most unfortunate.

However, we cannot blame the public for not fully trusting the system. Stories after stories have been told – whether concocted or true – about allegedly selective prosecution.

In our work on the MACC, we encountered many of these allegations. Critics target the MACC even when the agency has done its job to investigate, without realising that prosecution powers lie with the Attorney-General and not the MACC.

And among those who do know that prosecution is the discretion of the Attorney-General, a perception has developed that some people are always safe from prosecution, because they feel the Attorney-General has a conflict of interest. How can he be expected to prosecute the very people he is supposed to advise?

The fusion of the Attorney-General’s roles – as legal adviser to the Government and as public prosecutor – has resulted in decreased trust in the integrity of the system.

In cases that involve the Government, the public may not have full confidence in his decisions regardless of whether or not he is being independent and honest. And this time, it may result in a never-ending misery for the Prime Minister even if he is a victim of political sabotage.

I fully appreciate that the Prime Minister and the Attorney-General have thousands of other things to worry about at this moment in time. But for their own sake, this is a most urgent issue. The credibility of the Prime Minister is at stake here.

The roles of the Attorney-General must be separated. The Attorney-General should continue to advise the Government but we should create a new Public Prosecutor’s Office to decide on prosecution after the investigative agencies have done their jobs. This has to be done as soon as possible.

I appreciate that this is a major step. It requires a constitutional amendment because Article 145(3) of our Federal Constitution currently provides that the Attorney-General has absolute power to institute, conduct or discontinue any proceedings for an offence.

Additionally, the Criminal Procedures Code too will need to be amended because it currently says: “The Attorney-General shall be the Public Prosecutor and shall have the control and direction of all criminal prosecutions under this Code”.

The changes should be debated in this parliamentary meeting. If this is not done now, will anyone be able to save the Prime Minister’s credibility, regardless of what the investigation team finds?

Wan Saiful Wan Jan is chief executive of the Institute for Democracy and Economic Affairs ( www.ideas.org.my). The views expressed here are entirely the writer’s own.

By Wan Saiful Wan Jan thinking liberally

Related posts

Sue or don't sue WSJ's report: RM2.6bil was moved to PM Najib Tun Razak's bank accounts?

KUALA LUMPUR, Malaysia—Malaysian investigators scrutinizing a controversial government investment fund have traced nearly $700 million ...

 Fighting corruption must be serious !

Stupid fellow ! Dr Ling, former Malaysian 
Transport Minister slams Attorney-General

Stupid fellow ! Dr Ling, former Malaysian Transport Minister slams Attorney-General. UTAR Council Chairman Tun Dr Ling Liong Sik speaking to the media regarding UTAR Initiatives and Developments at the Sg Long Campus, Kajang on Tuesday. KAJANG: There was nothing wrong in the land purchase for the Port Klang ... It's only the A-G (attorney-general who) thinks it's a wrong decision. Stupid fellow,” he said at a press conference here yesterday to announce ...

Sue or don't sue WSJ's report: RM2.6bil was moved to PM Najib Tun Razak's bank accounts?

KUALA LUMPUR, Malaysia—Malaysian investigators scrutinizing a controversial government investment fund have traced nearly $700 million of deposits into what they believe are the personal bank accounts of Malaysia’s prime minister, Najib Razak, according to documents from a government probe.

The investigation documents mark the first time Mr. Najib has been directly connected to the probes into state investment fund 1Malaysia Development Bhd., or 1MDB.

Mr. Najib, who founded 1MDB and heads its board of advisors, has been under growing political pressure over the fund, which amassed $11 billion in debt it is struggling to repay.

The government probe documents what investigators believe to be the movement of cash among government agencies, banks and companies linked to 1MDB before it ended up in Mr. Najib’s personal accounts. Documents reviewed by The Wall Street Journal include bank transfer forms and flow charts put together by government investigators that reflect their understanding of the path of the cash.

The original source of the money is unclear and the government investigation doesn’t detail what happened to the money that went into Mr. Najib’s personal accounts.

“The prime minister has not taken any funds for personal use,” said a Malaysian government spokesman. “The prime minister’s political opponents, unwilling to accept his record or the facts, continue to try to undermine him with baseless smears and rumours for pure political gain.”

Mr. Najib has previously denied wrongdoing in relation to 1MDB and has urged critics to wait for the conclusion of four official investigations that are ongoing into 1MDB’s activities.

Investigators have identified five separate deposits into Mr. Najib’s accounts that came from two sources, according to the documents viewed by the Journal.

By far the largest transactions were two deposits of $620 million and $61 million in March 2013, during a heated election campaign in Malaysia, the documents show. The cash came from a company registered in the British Virgin Islands via a Swiss bank owned by an Abu Dhabi state fund. The fund, International Petroleum Investment Co., or IPIC, has guaranteed billions of dollars of 1MDB’s bonds and in May injected $1 billion in capital into the fund to help meet looming debt repayments. A spokeswoman for IPIC couldn’t be reached for comment. The British Virgin Islands company, Tanore Finance Corp., couldn’t be reached.

Another set of transfers, totaling 42 million ringgit ($11.1 million), originated within the Malaysian government, according to the investigation. Investigators believe the money came from an entity known as SRC International Sdn. Bhd., an energy company that originally was controlled by 1MDB but was transferred to the Finance Ministry in 2012. Mr. Najib is also the finance minister.

The money moved through another company owned by SRC International and then to a company that works exclusively for 1MDB, and finally to Mr. Najib’s personal accounts in three separate deposits, the government documents show.

Nik Faisal Ariff Kamil, a director of SRC International, declined to comment. Mr. Kamil had power of attorney over Mr. Najib’s accounts, according to documents that were part of the government investigation.

A 1MDB spokesman said, referring to the transfers into Mr. Najib’s account: “1MDB is not aware of any such transactions, nor has it seen any documents to this effect.” The spokesman cautioned that doctored documents have been used in the past to discredit 1MDB and the government.

For months, concerns about 1MDB’s debt and lack of transparency have dominated political discussion in Malaysia, a close ally of the U.S. and a counterweight to China in Southeast Asia.

When he founded 1MDB in 2009, Mr. Najib promised it would kick-start new industries and turn Kuala Lumpur into a global financial center. Instead, the fund bought power plants overseas and invested in energy joint ventures that failed to get off the ground. The fund this year has rescheduled debt payments.

The Journal last month detailed how 1MDB had been used to indirectly help Mr. Najib’s election campaign in 2013. The fund appeared to overpay for a power plant from a Malaysian company. The company then donated money to a Najib-linked charity that made donations, including to local schools, which Mr. Najib was able to tout as he campaigned.

“We only acquire assets when we are convinced that they represent long-term value, and to suggest that any of our acquisitions were driven by political considerations is simply false,” 1MDB said last month.

The four probes into 1MDB are being conducted by the nation’s central bank, a parliamentary committee, the auditor general and police. A spokeswoman for Bank Negara Malaysia, the central bank, declined to comment. Malaysia’s police chief and a member of the parliamentary committee also had no comment. The auditor general said this week it had completed an interim report on 1MDB’s accounts and would hand it to the parliament on July 9.

The prime minister is facing increasing pressure over 1MDB. The country’s longest-serving prime minister, Mahathir Mohamad, who left office in 2003, publicly has urged Mr. Najib to resign.

This week, Malaysia’s home minister threatened to withdraw publishing licenses from a local media group, citing what he said were inaccurate reports on 1MDB.

The $11.1 million of transfers to Mr. Najib’s bank account occurred at the end of 2014 and the beginning of 2015, according to the government investigation. Among the companies that investigators say it passed through was Ihsan Perdana Sdn. Bhd., which provides corporate social responsibility programs for 1MDB’s charitable foundation, according to company registration documents. Attempts to reach the managing director of Ihsan Perdana weren’t successful.

Documents tied to the transfer said its purpose was for “CSR,” or corporate social responsibility, programs. The Wall Street Journal examination of the use of funds tied to 1MDB for Mr. Najib’s election campaign showed that the money was slated to be used for corporate social responsibility programs as well.

The government probe documents detail how investigators believe SRC International transferred 40 million ringgit on Dec. 24 last year to a wholly owned subsidiary. This company on the same day wired the money to Ihsan Perdana, according to the documents. Two days after receiving the money, Ihsan Perdana wired 27 million ringgit and five million ringgit in two separate transfers to two different bank accounts owned by Mr. Najib, the government documents show.

In February, 10 million ringgit entered the prime minister’s account, also from SRC International via Ihsan Perdana, the documents show.

The remittance documents don’t name Mr. Najib as the beneficiary but detail account numbers at a branch of AmIslamic Bank Bhd. in Kuala Lumpur. Two flow charts from the government investigation name the owner of these accounts as “Dato’ Sri Mohd Najib Bin Hj Abd Razak,” the prime minister’s official name. A spokesman for AmIslamic Bank declined to comment.

In another transaction, Tanore Finance, the British Virgin Islands-based company, transferred $681 million in two tranches to a different account at another Kuala Lumpur branch of AmIslamic Bank. The government probe said the account was owned by Mr. Najib, according to the documents.

The transfers came from an account held by Tanore Finance at a Singapore branch of Falcon Private Bank, a Swiss bank which is owned by IPIC, the Abu Dhabi fund, according to the documents. A spokesman for Falcon Private Bank declined to comment.

The $681 million was transferred to Mr. Najib’s accounts on March 21 and March 25, 2013, the government documents show.

By Tom Wright at tom.wright@wsj.com and Simon Clark at simon.clark@wsj.com

Attorney General says task force uncovered documents during probe of investment fund 1MDB

KUALA LUMPUR, Malaysia—Malaysia’s attorney general said an official investigation into a troubled state investment fund has uncovered documents related to allegations that money was transferred into the personal bank accounts of Prime Minister Najib Razak.

A task force comprising the central bank, the national police and the nation’s anticorruption agency uncovered the documents during a probe of 1Malaysia Development Bhd., or 1MDB, Abdul Gani Patail, the attorney general, said Saturday.

Mr. Abdul Gani said that on Friday the task force had raided the offices of three Malaysian companies linked to 1MDB that allegedly were involved in the transfer of funds to Mr. Najib’s accounts.

“I confirm that I have received documents from the special task force related to 1MDB, including documents related to the allegations of channeling of funds to accounts owned by Prime Minister Najib Tun Razak,” Mr. Abdul Gani said.

The Wall Street Journal reported on Friday that Malaysian government investigators looking into 1MDB’s activities had traced almost $700 million in deposits into what they believe are Mr. Najib’s personal accounts. The investigation documents, reviewed by the Journal, didn’t provide the original source of the money or what happened to the cash after it allegedly entered Mr. Najib’s accounts.

Mr. Najib on Friday said the allegations were an attempt by his political adversaries to smear his name. His office declined to comment on specific allegations referring to the alleged money transfers.

The government investigation, reported first by the Journal, marks the first time Mr. Najib has been directly connected to probes into 1MDB, which owes over $11 billion to banks and bondholders. A person familiar with the government investigation said the documents had been given to the attorney general several weeks ago.

In response to the Journal report, Deputy Prime Minister Muhyiddin Yassin said on Saturday that authorities must investigate the allegations made against Mr. Najib, in a statement given to local media.

“These allegations are serious because they can affect the credibility and integrity of Najib as PM and the leader of the government,” said Mr. Muhyiddin, who is from Mr. Najib’s ruling party.

The raids of the three companies netted documents which will be examined as the investigations continue, Mr. Abdul Gani said.

The Journal reported how government investigators had traced the movement of a total $11.1 million from a unit of the country’s finance ministry through a subsidiary of the unit to a third company, which carries out corporate social responsibility work, exclusively for 1MDB. According to the government investigators, the money then went into Mr. Najib’s accounts.

SRC International is the unit of the Finance Ministry, which also is headed by Mr. Najib. The company originally was part of 1MDB but was transferred to the Finance Ministry in 2012.

1MDB has denied any involvement in transferring money to Mr. Najib’s accounts. The corporate social responsibility company, Ihsan Perdana, said to local media Friday that the firm didn’t send any money to the prime minister’s accounts. Attempts to reach the three companies weren’t successful.

By far, the largest alleged transfers into Mr. Najib’s accounts were two deposits of $620 million and $61 million in March 2013, during a heated election campaign in Malaysia, the government investigation documents show. The cash came from a company registered in the British Virgin Islands via a Swiss bank owned by an Abu Dhabi state fund according to documents obtained by investigators.

The fund, International Petroleum Investment Co., or IPIC, has guaranteed billions of dollars of 1MDB’s bonds and in May injected $1 billion in capital into the fund to help meet looming debt repayments. A spokeswoman for IPIC couldn’t be reached for comment. The British Virgin Islands company, Tanore Finance Corp., couldn’t be reached.

Mr. Najib set up 1MDB in 2009 to develop new industries. But the fund’s overseas energy ventures have failed to take off and it has been forced to reschedule debt repayments. Critics, including opposition politicians and some members of the ruling party, are worried about its heavy borrowings and lack of transparency.

The Journal last month reported how 1MDB indirectly had supported Mr. Najib’s election campaign in 2013. The fund appeared to pay an inflated price for a power asset from a Malaysian company, according to financial statements. That firm then contributed millions of dollars to a Najib-led charity that spent on schools and other projects that Mr. Najib was able to tout as he campaigned.

“We only acquire assets when we are convinced that they represent long-term value, and to suggest that any of our acquisitions were driven by political considerations is simply false,” 1MDB said last month.

A number of agencies are probing 1MDB. They include the national police, the auditor general, a parliamentary committee and the central bank. The attorney general didn’t say whether his office would launch its own investigation. The auditor general last week completed its probe into 1MDB’s finances, and plans to hand its report to Parliament on Thursday.

By Tom Wright And Celine Fernandez The Wall Street

Related posts:

Regulators act on complaints: MIA to name and shame errant professionals

We have a due process to investigate any complaints made against any of our members,” MIA chief executive officer Ho Foong Moi (inset pic)...

Malaysia's 1MDB's questionable accounts

Who is responsible: developer, contractor, local council or house-owner for the damages?  Who is responsible for slope management? Does the responsibility come with the property bought by the purchaser? THE collapse of a...

Asian voice carries greater weight now

Select head: Jin Liqun is the president-designate of the AIIB. – EPA pic >>

CHINA’S setting up of the AIIB (Asian Infrastructure Investment Bank) is a most significant event in contemporary history.

It represents another shift eastwards in the global balance of power, particularly from the US to China. However, other Asian – particularly Asean – countries have also to reflect on what it means to them.

The US AIIB dilemma is a useful point over which to ponder. It has very little to do with transparency, governance and environment. It has to do with the power equation with China. Predominance and control.

Clearly the US is struggling to come to terms with China’s rise. This is not to say America opposes it, but it is a hard thing for the US to swallow, to play second fiddle. And the AIIB is the first big test of that adjustment.

With the launch of the AIIB, China has also shown how it can make good things happen with support not just from Asia, but also beyond. It is becoming a global power with considerable reach and influence.

Controlling about 30% of the capital of the AIIB China, as the promoter, has shown itself as a leader that can control the future of other countries. How Beijing exercises that leadership remains to be seen, but insofar as member state expectations are concerned, they see Asian countries for the first time in living memory controlling an international institution of considerable weight - and with it their economic prospects.

To sustain Asian economic growth trajectory, US$8 trillion of national infrastructure development is needed up to 2020, not counting US$290bil in regional connectivity infrastructure. Indonesia alone needs US$230bil, Myanmar US$80bil. With the potential of the US$100bil AIIB, plus the US$40bil Silk Road Fund for “One Belt One Road”, there is for the first time some good hope of meeting this need.

The US, in its difficult adjustment, points to potential future problems rather than the promise of the AIIB. How “lean, clean and green” will the AIIB be? As if the US dominated Bretton Woods institutions have been pristine, but that does not mean it is a question that should not be asked about AIIB.

So, as the Asian countries get in line, eyes glued on the lolly, they should not hold back from asking questions and seeking answers on how the AIIB is going to operate.

Another issue raised primarily by the Americans is over procurement and personnel appointments. Again, as if the IMF, World Bank and ADB did not come with strings attached by largely senior Caucasian officials from the institutions. But, having suffered from such suppression in the past, Asian countries should want to know what the future holds with the AIIB on procurement and personnel.

With the AIIB headquartered in Beijing and China putting up most of the money, it is only to be expected there will be a Chinese bias on both scores. The president-designate Jin Liqun, however, is suave and affable, better than some of the boorish heads past and present of the Bretton Woods institutions. Nevertheless, it is not undignified to ask about other appointments and their distribution. This horse-trading occurs at international level.

On procurement, Chinese companies are already assuming they will have first-mover advantage contractual right – but this does not necessarily reflect what the Chinese government thinks or mean that the AIIB will be biased for them.

Indeed, Chinese Prime Minister Li Keqiang during his visit to France this week admitted China lacked advanced technologies and looked forward to “form joint ventures or cooperatives” with the developed world. This was stated on the occasion of a historic deal with France to carry out joint projects in Asian and African countries.

And it follows a considerable period during which China was intent on muscling out developed countries in its economic expansion to African and some Asian countries.

Thus, China’s tendency of blowing hot and cold has been a problem in gauging Beijing objectives and mode of operation.

A former US ambassador to the ADB recently related how the poorest Pacific countries failed to receive Chinese support at board level for projects as they had recognised Taiwan. Again, not that the US was ever reticent about such political power play.

Still, it would not be remiss to ask how far China would penalise countries on the wrong political wave-length, even if it would be too much to expect Beijing to support a state opposed to and in conflict with it.

How would the Philippines and Vietnam score in the AIIB on the Chinese political barometer given their adversarial position in the South China Sea dispute? Indeed, the other claimant states, such as Malaysia and Brunei. Of course, if they are willing to become vassals of the Chinese state in return for largesse, it is entirely up to them. But it is not to be expected the proud sovereign states of South-East Asia would stoop to this, but who knows.

In the AIIB, Asean states will each have a very small stake, even if Indonesia might be among the top ten shareholders. Together they might represent something a little more significant. Would they then not want to develop a common position in areas of infrastructure and connectivity development that would be of shared benefit?

Asean leaders do not seem to discuss strategic issues such as, now, the meaning and significance of the AIIB to future regional order. Generalised, but not inaccurate, assertions are made about its good in terms of infrastructure and economic development. But there is more to it than that.

When they meet, Asean leaders follow a well-scripted agenda that does not include a free flow of discussion. Foreign ministries often are hell-bent on avoiding this, because they think strategy and state secrets must at all cost be protected. They should give the leaders greater credit than assumed stupidity. These discussions must take place beyond other broad issues, such as the Middle East etc, or immediate issues, such as refugees and migrants.

Strategic issues are so critical to Asean’s future place in the regional order. Deficient discussion, or avoidance of it altogether, erodes Asean role in the evolving system. More time must be set aside at Asean summits for discussion on these issues.

The economic ministries too must not just look at issues and targets one by one and in a rush without presenting the bigger picture. There is great strategic content in the minutiae which is hardly highlighted or discoursed.

If Asean meetings and summits go on like this, community or no community, the region will miss the wood for the trees.

Comment by Munir Majid The Star/Asian News Network

Tan Sri Munir Majid, chairman of Bank Muamalat and visiting senior fellow at LSE Ideas (Centre for International Affairs, Diplomacy and Strategy), is also chairman of CIMB Asean Research Institute.


Related posts:

The center of world economic gravity moving east as AIIB shows

Chinese President Xi Jinping (C, front) poses for a group photo with the delegates attending the signing ceremony for the Articles of Agre...