Riza Aziz's DEAL - It is good to consider various opinions on what happened, so here below we have an ALIRAN comment and an ONLINE PETITION, which you can sign. Here, I have also copied a comment by Shafee Abdullah.
For me, the question that we have to look into is the Attorney General, who is also the Public Prosecutor - WHO do they serve the people of Malaysia, or the government of the day? Remember the Attorney General is also the government's 'lawyer' - so there has been calls for the Public Prosecutor be a person not the AG, but a person who is INDEPENDENT from the political masters, and who will only serve the cause of upholding justice.
Powers of the Public Prosecutor > Now, he decides who to charge or not to charge. He also decides on what charge...it could He decides which case to discontinue, etc..
In the recent past, the possibility of 'wrong' use of these powers have come into the picture...
REFORMS is something we need ...but what REFORMS?
AG, rescind decision, charge Riza; no escape route for thieves!
Malaysians are utterly disappointed with the attorney general and
feel that he had not represented the best interest of the people in this
case, P Ramakrishnan writes.
When the person-in-the-street is upset over the discharge not
amounting to an acquittal (DNAA) of Riza Aziz, he can be easily
dismissed as someone not knowing the law or having no knowledge of how
the judicial system works.
But when those who have read the law and who are respected and
recognised as the legal luminaries of the land become troubled over what
has happened with regard to Riza’s five money-laundering charges and
the ease with which he got his DNAA, it becomes a very serious matter.
It rings alarm bells.
The eight past presidents of the Malaysian Bar, without mincing their words, have stated very bluntly:
“The information provided thus far gives the impression that there
are no good reasons for the withdrawal of the charges and the
discontinuance of the prosecution.
“It is indefensible and outrageous to allow an accused person to buy
himself out of a serious criminal offence. It is an abuse of process
that would bring the administration of justice into disrepute.”
It is unprecedented for eight ex-Bar presidents to agree and actually
sign a joint statement. Earlier on, only five ex-Bar presidents signed a
previous statement. That something is amiss is very obvious since the
five were later joined by three other ex-Bar presidents to sign a
subsequent joint statement.
In all humility, I salute these eight ex-Bar presidents for standing
up to tell all Malaysians that something is wrong with the prosecution’s
deal for Riza to be granted a DNAA.
If
these learned legal experts are “perplexed” and unable to see the
rational for Riza’s DNAA, is it any wonder that the lay person is
horrified that our judicial system is so irrational in allowing a person
criminally charged for money laundering to walk away free. It is
absurd, to put it mildly!
Please note that a DNAA comes with prior guilt
affixed. Nothing in the deal tells us anything about guilt being
attached.
The attorney general, in avoiding responsibility for this ridiculous
decision, is pointing his fingers elsewhere. He mentions that the former
Attorney General, Tommy Thomas, had “agreed in principle” and that the
Malaysian Anti-Corruption Commission (MACC) had advised this course of
action.
But what was the personal decision of the incumbent attorney general
as the ultimate authority in deciding the outcome of a case that was
pending in court? He is the final authority. Action is taken in his
name. The course of action is determined by his decision – not that of
anyone else.
Doesn’t the buck stop at the attorney general’s desk? When that
happens, he is solely responsible for whatever decision taken. He cannot
pin the blame on some scapegoat in order to shirk his responsibility.
The attorney general is obliged to provide his reasons for the DNAA.
After all, he was acting on behalf of the people. What was the
compelling reason to provide this escape route for Riza? We, the people,
demand to know! That exclamation mark denotes public anger.
According to the statement by the past Bar presidents, “The decision
of the AG must therefore be supported by valid, rational and cogent
reasons. The media release by the AG does not provide such reasons, and
it does not therefore satisfy the requirements of accountability.”
It
is reported that Judge Azman Ahmad, rightly, allowed the application by
ad hoc prosecutor Gopal Sri Ram on grounds that an agreement had been
reached under which the accused would repay a portion of the money to
the federal government. Believe me, the judge acted in accordance with
the law since he must accept the bargain.
Gopal Sri Ram, the ad-hoc prosecutor, merely stated that “an
agreement had been reached” without mentioning who from the Attorney
General’s Chambers negotiated this agreement. Was this person authorised
by the attorney general to negotiate? Having negotiated the agreement,
was this decision referred to the attorney general for his final
decision?
It is also a matter of grave concern that the terms of the agreement
are not made known to the people. If he is acting on behalf of the
people, doesn’t he owe it to the people to disclose the terms reached?
Shouldn’t the people be satisfied that it was the correct decision which
is beneficial to the nation?
Why operate under a cloak of secrecy?
Malaysians are utterly disappointed with the attorney general and
feel that he had not represented the best interest of the people in this
case. We feel terribly let down by the attorney general.
The lay persons may not know the law but they know what is right and
wrong. They are convinced that what the attorney general did was wrong,
especially when Riza had struck an earlier deal with the US Department
of Justice.
We cannot depend on the politicians to right the wrong. They are far
too consumed with their greed and avarice to be bothered by what is
right and wrong.
We
have reason to be disappointed with the way the judicial system may
have been abused. To be frank and not speaking about this instant case,
we sometimes find certain court decisions startling and bewildering!
So, it is left to the person-in-the-street to bring about change as
was done in GE14 on 9 May 2018 so courageously. We need to rise up again
and protest peacefully. Let a hundred thousand thinking, feeling and
caring Malaysians sign this petition below to send home the message that
they didn’t approve the attorney general’s decision to allow Riza to
“walk away” in the grand style of Matt Monro.
In signing this petition, we the people demand that, if possible,
this decision to discharge Rizal be rescinded forthwith. We further
demand that Rizal be charged in court. We condemn this sinister attempt
to create possible escape routes for other thieves facing criminal
charges.
Let’s be inspired by this saying of Haitian democracy activist Jean
Dominique: “You cannot kill the truth. You cannot kill justice. You
cannot kill what we are fighting for.”
Let’s sign this petition:
- ALIRAN website
What led to the DNAA for Riza Aziz
The recent resolution to Riza Aziz’s case is not a controversial one.
I fear that controversy was created by interested parties to get at
Najib Razak by prejudicing his ongoing cases through the unkind attacks
on Riza’s matter.
It has become imperative for me to write this piece to clear the air,
to extract the truth from the womb of society that otherwise may be so
fortified against truth itself.
Riza, Najib’s stepson, was charged on July 4, 2019 with five
offences of money laundering, all of which purportedly had taken place
in Los Angeles (two charges) and Singapore (three charges). The total
amount of money involved (not stolen) in these five charges is about
US$248 million.
It is important to stress that Riza was never charged with stealing or cheating anybody or the like.
In essence, these money laundering charges against him is that he
received these monies which purportedly are proceeds of the unlawful
activities emanating from 1 MDB.
Riza, in his statements to the Malaysian Anti-Corruption Commission
(MACC), clarified that he received these monies as documented loans from
Alsen Chance and Aabar, two entities connected to Petro Saudi of Saudi
Arabia and IPIC of Abu Dhabi respectively.
It is important to stress this because the prosecution, if the trial had proceeded, would have to prove in Riza’s case that:
(a) Riza received these monies that emanated from 1MDB;
(b) these monies are in fact proceeds of identified crimes (the unlawful activities);
(c) the identified crimes were actually committed, not necessarily by Riza but maybe by third parties;
(d) Riza has actual knowledge that these funds are from the proceeds of these crimes.
Members of the public have been misled into thinking that the only
thing that the prosecution needs to prove to convict Riza on money
laundering is to show that he received these funds (only one element).
That is wrong. You have to prove at least those four separate elements.
The point I want to stress is that had the prosecution embarked on a
full trial against Riza, it would not be a walk in the park for them. It
is an uphill battle. The scenario of the ongoing 1MDB case has to be
proven first and then the chain of transmissions of these funds, from
Malaysia to Saudi Arabia, Abu Dhabi, Lugano, Virgin Islands, Los Angeles
and Singapore, among others, needs to be conclusively demonstrated.
Just imagine the kind of proof the prosecution would have to
undertake; the foreign documents, the foreign and local witnesses, some
of whom are immune due to their status as royalty or ministers or heads
of state and therefore not compellable witnesses. And imagine the costs
of the investigation and the prosecution that will run into millions.
This needs to be emphasised as former attorney-general Tommy Thomas
was out of his depth when he hurriedly, post haste, preferred these five
charges against Riza without thinking deeply on the complications of
proof, the length of the anticipated trial and the costs.
Tommy was and is not a criminal lawyer and can never be one in a
compressed time. He had, prior to his appointment never fully practised
criminal litigation, not even for a day. But his political masters would
have to be blamed for appointing such a candidate to be the AG and
automatically the public prosecutor.
Some of those political masters have their own agendas to appoint him
as they were facing criminal trials or investigations or accusations.
So, Tommy only attended courts to prefer charges but left the actual
trials to be conducted by prosecutors on fiat or regular DPPs. In the
SRC trial, actual trial work undertaken by Tommy was minimal.
Considering these complexities in Riza’s case, it is not surprising,
therefore, that the US Department of Justice (DoJ) itself, appreciating
these hurdles, decided to take action against Riza only for civil
forfeiture, not criminal prosecution.
Civil forfeiture, being basically a recovery of assets action has a
much lower standard of proof when compared to criminal proceedings which
demand onerous proof beyond a reasonable doubt. The DoJ’s decision
bears the hallmark of the experience and knowledge of their attorney-
generals. This invocation of prosecutorial discretion is important and I
will advert to it later.
Then, aside from the mere receipt of the funds in the five charges,
the prosecution would have to prove Riza had the necessary knowledge
that the funds he received are proceeds of some unlawful activities
committed by him or some other persons.
This is a monumental task as Riza’s explanation to the MACC from the
earliest opportunity is that these funds were loans provided to his
movie production company, Red Granite Productions Inc, for his movie
productions.
This is not a hollow narrative. There is a ring of truth to Riza’s claim, which a trial judge has to grapple with, because;
(a). Riza had produced all the contemporaneous loan documentation
relating to the receipt of the funds to MACC during their
investigations;
(b). Riza is a genuine producer of first-rate Hollywood movies (The
Wolf of Wall Street, Dumb and Dumber, Friends with Kids, Children Rise,
Daddy’s Home, among others);
(c). The loans from Alsen Chance and Aabar (lenders) dictate the use
of the loan funds for movie production and entertainment business only;
(d). The dignitaries behind Alsen Chance and Aabar are people truly
connected to the ruling powers of Saudi Arabia and Abu Dhabi
respectively ;
(e). Riza’s contemporaneous statement in writing to the MACC when he
was first questioned carries the same defence throughout, therefore he
was consistent and credible.
At all material times, Red Granite, after successfully producing
these movies, had paid off virtually all the loans, plus the accrued
interest. This is a critical piece of information as it means the monies
Riza received in all the five charges substantively were no longer with
him as he had paid them off to the lenders.
The property purchases by Riza in New York, Los Angeles and London
are therefore Riza’s own properties as he had discharged all the
previous loans, the subject matter of the five charges.
Keep this in mind as it bears critical relevance to the issue of
whether Riza really benefited from the Sessions Court compounding the
offences and discharging him, all through the industry of his able
solicitors, Scivetti & Associates (Scivetti), who had endlessly
negotiated for him.
The representation and settlement in court
The representation by Riza to the then AG (Thomas) was made on Nov
18, 2019. It was sent in by the legal firm of Scivetti, whose lawyers,
as acknowledged by prosecutor Gopal Sri Ram in open court, are
competent.
They specialised in serious crimes, including corporate crimes,
litigation and corporate work. Hariharan and I are the two counsel
engaged by Scivetti for trial work, should the matter go to trial. I
remained as an adviser even for the representation.
The senior DPPs in charge of the case, led by senior counsel Sri Ram
and assisted by Akram Gharib, are experienced senior counsel. They could
smell blood miles away to move for the kill, if required, and likewise
would also appreciate if the hounds are leading them nowhere
constructive. They would have carefully advised Tommy, who was in need
of their professional advice.
So, when Thomas said in his press statement, dated May 18, 2020, that
he would never accept a representation from Riza as he would not betray
the prime minister and the Pakatan Harapan government, we will have to
examine if Tommy could possibly be telling the truth or otherwise.
Thomas, after an earlier total denial, later back-pedalled and
confirmed he minuted on the very letter of representation sent by Riza’s
solicitors (Scivetti) on the next day, Nov 19, 2019.
This clearly would have meant that he must have read the
representation fully and almost immediately to be able to minute the
following to senior DPP Sri Ram:
“In light of the statement in paragraphs 5.10, 5.14, 5.15, 5.18 and
5.19, I am prepared to consider this representation: Paragraph 5.20
contained their terms of a proposed settlement. I await your advice.”
Thomas sought Sri Ram’s opinion on the proposed settlement without
any noticeable input by him. The only contribution he offered in writing
was with regard to one of the offers by Riza to be a witness in the
1MDB-Tanore trial (where Najib is on trial).
Thomas opined that he was “not convinced that Riza would be a good
prosecution witness against his father”. This specific offer, to be a
witness, among others, is in the earlier part of the representation
letter. So, we can conclude empirically and objectively as follows:
(a) Tommy read the entire representation;
(b) He was not aghast with the representation and the “offer to
settle”, otherwise he would have jumped up like a hot piston and
summarily rejected the petition, without more;
(c) Due to the above, it is an irresistible conclusion we can draw
that he himself was keen to explore the settlement proposed and sought
Sri Ram’s opinion;
(d) If Thomas was telling the truth that he would never accept such a
representation from Riza (as that would be betraying his PM and the
Pakatan government), then why did he show interest in the proposals by
seeking Sri Ram’s opinion? Why waste Sri Ram’s valuable time, when the
latter was engaged in many urgent cases? So Thomas could not have been
so against the proposals, as he now claims;
(e). Further, to enable the proposals to be properly considered,
Thomas sanctioned for several adjournments of Riza’s trial, which were
initially fixed for Jan 6, 2020 until Jan 9, 2020 and Jan 13, 2020 to
Jan 16, 2020. The trial court records show the following reasons were
provided to the court for the postponements by the parties:
(i) A senior DPP wrote to the court and copied the letter to Thomas
seeking an adjournment of the trial on the grounds that Thomas was still
considering Riza’s petition. Thomas minuted on this letter, that was
copied to him, that he would want to see the senior MACC DPP to be
briefed. They never met as the DPP was away overseas and when he
returned, he learned that the petition had been accepted and details
were being ironed out. When the DPP contacted Thomas’s office, he was
told that it was no longer necessary to have a meeting as the matter had
been resolved;
(ii) At least two other postponements were granted dated Jan 31, 2020
and Feb 25, 2020. On the latter date, a lady DPP offered similar
reasons for the postponement, this time saying that Thomas was still
deciding on the representation, including the supplementary
representation sent by Scivetti dated Jan 23, 2020;
(iii) It is important to stress that these postponements consistently
attributed that Thomas required more time to finalise a decision on the
representation. So, it is not just one request for postponement, but
several.
Thomas never rejected the petition outright, but was working towards
the final resolution. But he suddenly resigned on Feb 28, 2020 and
therefore the new AG completed the process in accordance with the
understanding in principle that had been laid during Tommy’s watch.
The current AG need not be concerned with Thomas’s tentative opinion.
He could have decided the matter himself but Idrus Harun, to those who
know him, is a perfect gentleman and a class act, who paid respect to
his predecessor’s views, in spite of the fact that in terms of
experience in criminal practice, Thomas cannot measure up to Idrus, a
former solicitor-general at the Attorney-General’s Chambers of many
years standing in criminal and other fields and who also served as a
Federal Court judge.
Among us lawyers, when we assess who is telling the truth, we look at mainly two things :
(a) The reasonableness of the two versions, that is, which is more reasonable in its narrative;
(b) Are the contemporaneous documents and actions supportive and corroborative of one version in preference of the other.
Using this established court technique, Thomas’s version, as demonstrated above clearly comes way short of the truth.
Next, the wide discretion of the AG to discontinue with a case
already before the court, pursuant to Article 145(3) of the Federal
Constitution and section 254 of the Criminal Procedure Code.
Salim Bashir’s comments
Salim Bashir Bhaskaran, the Bar president, in commenting on Riza’s
case, stated quite clinically the position of law of the public
prosecutor’s discretion to invoke section 254 of the CPC. I do not see
any obvious flaws in that statement.
Salim impliedly conceded he did not have the factual matrix when he
correctly observed that “the factors that ought to be taken into account
must be dictated by wisdom, relevant consideration and driven by the
facts and public interest”.
This is another way of saying that the PP’s discretion to invoke
section 254 must be legal, rational and procedurally proper, depending
on the factual matrix and the representation made. Only the current AG
(not Thomas) knows the fullest facts for him to have invoked the
discretion, in consultation with the senior prosecutors.
The criticisms of Salim’s statement is not fair. He meant only to
educate the public on the law and its ambit. He did not want to go into
the unknown. Salim himself is a seasoned criminal practitioner, among
other areas he practises in, and sections 254 and 254A of the Criminal
Procedure Code are relatively new amendments, quite unknown in most
Commonwealth jurisdictions.
A previous Bar President, George Varughese, commented on the AG’s
withdrawal (during Thomas’s watch) of Lim Guan Eng’s case, which was at a
very advanced stage in the prosecution’s case, expressing, “not
shocked” over the decision and saying the obvious, that it is the
absolute prerogative of the PP to drop charges at any stage of a trial,
before the delivery of a judgement.
He merely quoted section 254 of the CPC but did not expound on it as Salim did. He continued to say:
“ It is not uncommon for lawyers representing accused persons to make
representations to the AGC seeking withdrawal and/or reduction of the
charge/s profferred against their clients. And on a regular basis, the
AGC does accede to these representations. Further, the DPP has since
explained that it was his considered opinion that there is insufficient
evidence to succeed at the end of the prosecution’s case. Thus, it is
not shocking for the DPP to withdraw the charges as suggested by the
MACC. ”
Now, considering the fact that Varughese did not know the factual
matrix considered by the DPP who ordered the withdrawal of Guan Eng’s
case (Varughese cited none), Varughese’s expression of opinion, as
president of the Bar, adds nothing useful and is superficial.
Therefore, what Varughese said was not addressing “where the public
thirst for insight lies”, of the issues which the media had described as
a shocking withdrawal of Guan Eng’s charges.
Varughese’s statement did not address:
(a) whether it is right and justified in the public interest, to
withdraw serious charges against a senior member of the administration
(chief minister) , when the prosecution’s case was in the advanced stage
of almost concluding;
(b) what were the factual matters that were mysteriously uncovered by
the “parachuted DPP” that was so compelling for the prosecution to
withdraw the charges, especially taking into account an earlier similar
situation in the case of Khir Toyo (former Selangor menteri besar),
which ended in his conviction and imprisonment?
(c) why was the decision taken secretly without consultation with the
MACC and the DPPs actually prosecuting the case? How come the
“parachuted DPP’ only considered the defence petition and did not hear
the views of the prosecution team/MACC? The apparent reason for secrecy
was not convincing as it goes against all previous practices of the AGC,
even in the most serious and sensitive cases. Given the super sensitive
nature of the withdrawal of the charges, secrecy would be anathema to
public confidence in the administration of justice. Thomas preached this
concept of transparency his entire adult life but never practised this
as an AG in this instance.
(d) was there not the appearance of favour shown considering the
above factors and the known close relationship between Thomas and Guan
Eng where the former was one of the lawyers in this very case and in the
Anwar Ibrahim Sodomy 2 case? Should the AG not take extreme care
dispelling any appearance of favour or bias shown by taking the safer
route which the AGC has been accustomed to, “ let the court decide”.
This is especially made worse in the “appearance” department as Guan Eng
was appointed to a very senior Cabinet post as the finance minister
while his corruption case was pending and ongoing. Would the public not
entertain the notion that the premature appointment meant that Guan
Eng’s acquittal was a foregone conclusion and someone would be
“engineering” his case withdrawal?
In all recorded cases where menteris besar or serving Cabinet
ministers were charged, they had to immediately resign (refer to
Muhammad Taib’s and Kasitah Gaddam’s cases).
Even mere public servants facing such a dilemma would face
interdictions. In the case of Guan Eng, the unthinkable reverse
happened; while his trial was ongoing, he was rewarded with the senior
Cabinet post.
Salim made a far more elegant and impartial statement, as compared to
Varughese who said nothing useful, nor elegant. Salim warned that the
court proceedings in Riza’s case are still not over, as indicated by the
Senior DPP in relation to fulfilment of the agreed terms and
conditions.
Yet, Salim is attacked by senior members of the Bar, including six
former Bar Council presidents. Where were these “guys” when Varughese
made his useless “tell nothing” statement ? Are there hidden agendas for
this selective criticism? I do not think these senior Members of the
Bar can preach the virtues of a “fiercely independent Bar” as they
showed neither qualities, especially the latter .
The AG/PP’s discretion exercised under Article 145(3) or Section 254
CPC or any prosecutorial discretion is not an absolute power or an
unfettered discretion. Our law in this regard has changed dramatically
following the changes in England.
The AG/PP’s discretion to withdraw a case, especially one that is
advanced in the trial (Guan Eng’s case), or one where the defence had
been called , (as in the case of the two women accused in the North
Korean KLIA murder case ) can be reviewed by the court, on application,
on grounds of illegality, irrationality or procedural impropriety.
Not employing good faith ( power exercised in bad faith ) in such
exercise of power is yet another ground. Given Thomas’s own “golden
thread”, that runs through his veins when during his short-lived career
as the AG/PP, he shamelessly declared he could not have decided Riza’s
case the way it was resolved by the current AG as he “would not betray
the PM and the PH government”.
Does Thomas know that as an AG/PP, he has to be impartial/independent
of any government and/or the prime minister? That woeful statement by
him indicates that he was the PH AG and that he takes orders from the PH
Cabinet / or the PH prime minister.
This is not a slip of his tongue. It lays naked his thought processes
of being political and is not judicious, as demanded of his august
office, being the “fountain of justice”.
He recognised that “the AG is no longer a political appointment” in
his book “Abuse of Power (2016)” and yet declared he was a political
appointee. If in May 2020 he was with that attitude and mentality, the
same attitude and mentality would have existed and governed him when he
decided to appoint senior DPP Hanafiah Zakaria to review Guan Eng’s case
which led to the latter’s charges being withdrawn by the AGC
surreptitiously and without the actual DPPs conducting the trial or the
MACC being told in a timely fashion and/or consulted.
How could one man, Hanafiah alone, have dictated the fate of that
case when Thomas purportedly recused himself from deciding? Do you
seriously expect the general public to believe this “Chinese wall” put
up by Thomas in the decision made to withdraw Guan Eng’s charges?
Thomas is fond of preaching, and may I remind him now of the famous
legal maxim “ Justice must not only be done, but must be seen to be
done”, which Thomas is fond of throwing about in less relevant
situations.
The law on prosecutorial discretions of the AG/PP is clear. The
latest Federal Court judgment in Chin Chee Kow (2019) has cleared the
air, namely:
(a) The AG/PP has the sole discretion on matters of prosecution and withdrawal of charges:
(b) But his discretionary decision is not unfettered. In suitable
cases, the court can review the decision if the decision is flawed by
illegality, irrationality or procedural impropriety or arrived at in bad
faith;
(c) Although the AG/PP need not have to disclose his reasons for
exercising discretion in such manner in any particular cases, the court
can in suitable cases compel the AG/PP to disclose the reasons in order
to discover if the discretion has been properly invoked;
(d) For the court to compel disclosure of reasons and to review any
particular decision of the AG/PP, the case has to be exceptional
although many reported cases in the Commonwealth have reviewed the
AG/PP’s discretion on matters of prosecution and withdrawals.
Riza Aziz’s DNAA
The above formulations of law can resolve the two important issues
raised herein. In Riza’s situation, any challenge to the decision must
show that there are obvious flaws in the four senses mentioned earlier.
Speaking for myself, I cannot point to anything that would indicate
that the discretion was wrongly used. Further, the AG/PP is allowed to
consider various factual and legal matters in arriving at the decision
to accept the representation of Riza on terms.
Consider the following as possibilities : –
(i) the AG/PP may have reconsidered the overall strength of the
prosecution’s case to be influenced to accept the representation;
(ii) the AG/PP may have looked at the prosecution’s case in the context of the defence alluded to in the representation;
(iii) the AG/PP may have considered if Riza had actually paid all or
most of the loans. Flow of the funds can be easily studied, for this can
be established with Riza’s cooperation;
(iv) there may be concern if Riza had actual or constructive
knowledge that the funds he received were from proceeds of the crimes or
any crimes;
(v) there could be concern that if Riza had paid the loans with
interest, there is the possible element that the profits he made using
the initial loans are not tainted due to his lack of knowledge and his
assets (properties and cash) may not be forfeitable after all;
(vi) the AG/ PP may also have considered that Riza’s offer is sincere
as he had long before this been making similar and consistent offers to
the DoJ in his recent civil forfeiture case, through his US and
Malaysian solicitors.
(vii) the AG/ PP may have also considered the risks of a full trial
and Riza may be successful in his defence and the assets Riza offered to
the Malaysian government may have to be returned to Riza. You may know
that in many of the recent forfeiture cases in our courts, somewhat
relating to 1MDB, the prosecution had not been successful to forfeit the
assets targeted as they could not show the necessary nexus in the chain
of evidence. So, I want to ask those who criticised Riza’s case; how do
you know the current AG has not considered all these relevant factors
and more?
There is one niggling matter I need to address. This relates to the
misleading statement generated by Thomas (and erroneously echoed by Dr
Mahathir Mohamad) that Riza’s assets would by agreement between the DoJ
and Thomas ( as the previous AG ) be returned to Malaysia.
Both of them are under the misguided assumption that Riza’s seized
assets by the DoJ would be returned to Malaysia as of right apparently
because Thomas had established strong relations with the DoJ after he
took office.
This is a completely misleading statement, The DoJ has been upset
with Thomas and the PH government because the DoJ felt they were treated
as the “debt collection agency” for Malaysia. Establishing strong
relationships with the DoJ will not bring back the money as the due
process of US civil forfeiture must be observed.
The Scivetti team thoroughly researched Riza’s case, including
meeting up with Riza’s New York lawyers and other lawyers working in DoJ
as early as 2017/2018. To believe that DOJ would have returned the
money anyway, since it belonged to the country is a naive statement.
Firstly, the civil forfeiture proceeding in the US has to be won by
the DoJ. Riza had been contesting them for the last five years. Now,
Riza, through his New York lawyers, had negotiated on terms to
relinquish his rights to the assets as part of his settlement with DoJ
and Malaysia.
Upon DoJ agreeing to the terms, only then those assets would be
repatriated to Malaysia. If Riza had continued to contest, for all the
reasons earlier mentioned, he may win the proceedings in the US and
nothing will be returned to Malaysia as Riza would keep them all.
So when Riza entered into the discharge not amounting to an acquittal
(DNAA) arrangement in the KL Sessions Court, he is relinquishing all
his affected US and Malaysian assets to the Malaysian government as a
global settlement.
For those who think Riza had made a gain by this arrangement, you
should get your arithmetic correct. By the global settlement, Riza had
paid or agreed to relinquish US$40 million more than the amount of
US$248 million, the subject matter of the five charges.
All this because the young man wants to walk away from this
nightmare. Riza’s arrangement for a global settlement, including that
recently achieved in the Sessions Court, Kuala Lumpur, was undertaken
with the sole purpose of providing solace to Riza so that he can start a
new life pursuing his interests.
He maintains his innocence of any criminal doings and for that reason
agreed to the compound arrangement, which brings about no conviction in
law.
Muhammad Shafee Abdullah is a senior lawyer. - FMT, 30/5/2020
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