Saturday, August 31, 2019

Malaysia’s Arrest and Sending back Asylum Seeker Teacher, Wife and 4 Children back to Turkey Is Wrong and Unjust(MADPET)


Media Statement – 31/8/2019

Malaysia’s Arrest and Sending back Asylum Seeker Teacher, Wife and 4 Children back to Turkey Is Wrong and Unjust

-Respect Human Rights, Law And Principle Of Non-Refoulement

MADPET (Malaysians Against Death Penalty and Torture) is disturbed by the media report that Turkish teacher Arif Komis and his family, who are recognized by the United Nations High Commissioner for Refugees (UNHCR) as asylum seekers have been arrested by the Malaysian police and thereafter  deported back to Turkey for prosecution(Malay Mail, 30/8/2019). 

It is now learnt that Komis who arrived in Turkey with his wife and their four young children today was swiftly detained by police.(Free Malaysia Today, 30/8/2019)

Malaysia should respect the principle of non-refoulement especially when it comes to asylum seekers and refugees in Malaysia, which means that Malaysia should not be arresting and sending back these persons to countries from where they have fled from prosecution. 

The primary and universal definition of a refugee is contained in Article 1(A)(2) of the 1951 Convention Relating to the Status of Refugees, as amended by its 1967 Protocol,  which states that ‘ a refugee as someone who: "owing to well-founded fear of being persecuted for reasons of race, religion, nationality, membership of a particular social group or political opinion, is outside the country of his nationality and is unable or, owing to such fear, is unwilling to avail himself of the protection of that country; or who, not having a nationality and being outside the country of his former habitual residence, is unable or, owing to such fear, is unwilling to return to it…”

An asylum-seeker is someone whose request for sanctuary has yet to be processed.

Article 14 United Nations Declaration of Human Rights state that ‘(1) ‘ everyone has the right to seek and to enjoy in other countries asylum from persecution.’ However, “(2) This right may not be invoked in the case of prosecutions genuinely arising from non-political crimes or from acts contrary to the purposes and principles of the United Nations.’

Under international human rights law, the principle of non-refoulement guarantees that no one should be returned to a country where they would face torture, cruel, inhuman or degrading treatment or punishment and other irreparable harm.

The prohibition of refoulement has been interpreted by some courts and international human rights mechanisms to apply to a range of serious human rights violations, including torture, and other cruel, inhuman or degrading treatment, flagrant denial of the right to a fair trial, risks of violations to the rights to life and/or freedom of the persons, serious forms of sexual and gender-based violence, death penalty or death row, female genital mutilation, or prolonged solitary confinement, among others.

Being a refugee or an asylum seeker entitles the person to a number of (refugee) rights, including the right not to be sent back to the country of origin (principle of non-refoulement).

However, the principle ought not protect criminals like murderers, rapist, money launderers and/or those involved in corruption and/or ‘kleptocracy’’.

There are many Malaysians in other countries that we may not be able to bring back to Malaysia to be tried for offences of corruption, abuse of power and ‘kleptocracy’, and MADPET believes that they should not be protected by this principle of non-refoulement. Neither should they be accorded status of asylum seeker and/or refugee.

Unfortunately, Malaysia still have no written law that deals with refugees and asylum seekers, which would also define the rights of these persons seeking such refugee status. Malaysia has to speedily enact such a law. Without a clear law, Malaysian’s actions in the past have been primarily political decisions made by the government (or Executive branch of government). In a democracy, as in Malaysia, such decisions is subject to review by the Legislative (Parliament) and/or the courts (the Judiciary).

Malaysia,  have in the past, accepted refugees and asylum seekers from Vietnam, Burma, Palestine and other countries, and allowed them to stay in the country. This protection have generally been accorded to persons who are UNHCR recognized asylum seekers or refugees.

Disappointingly, the new Pakatan Harapan led government violated this good practice when in May 2019, Malaysia arrested and returned to Thailand a Thai National, one Praphan Pipithnamporn, who then was a  UNHCR recognized asylum seeker.

Now the arrest and deportation back to Turkey of Arif Komis and his family, which included their 4 children is yet another violation of past policy and practice.

This recent sending back of also the 4 children also brings to light the concern about Malaysia’s position and concern for the rights of the child.

There is now concern about Malaysia’s treatment of refugees and asylum seekers.

In the case of Indian Zakir Naik, who may or may not even be a UNHCR recognized asylum seeker or refugee, Malaysia, vide the former government, not only allowed him to stay in Malaysia but also gave him a permanent residency (PR) status.

Malaysia’s new government even rejected an extradition order from India, allegedly because Malaysia did not believe that Zakir Naik will get a fair trial. Was this a decision in reliance of the Malaysian law on extradition?

Section 8 of our Extradition Act 1992 provides for prohibitions against extradition in certain circumstances, including:

    (1) if the offence in respect of which [an individual’s] return is sought is of a political character or he proves to the Minister that the warrant for his return has in fact been made with a view to try or punish him for an offence of a political character;

    (2) if the request for his surrender although purporting to be made for an extradition offence was in fact made for the purpose of prosecuting or punishing the person on account of his race, religion, nationality or political opinions; or


    (3) if he might be prejudiced at his trial or punished or imprisoned by reason of his race, religion, nationality or political opinions.

The refusal to return to China the 11 ethnic Uighur Muslims in October 2018 was a commendable act.(Asahi Shimbun, 12/10/2018), and that could have been because of there was a risk of prosecution and/or punishment on account of race and/or religion, being one of reasons in law not to deport back to China.

Now, with regard to the Turkish Arif Komis and his family, Malaysia could have refused an extradition request possibly on grounds that Turkey’s request for ‘return is sought is of a political character’, and as such Arif should have also been accorded the right and opportunity to prove ‘…to the Minister that the warrant for his return has in fact been made with a view to try or punish him for an offence of a political character..’ Was Arif and his family even given this opportunity by the Malaysian Home Minister to do that? When was this done, and what was the Minister’s decision? The Minister, according to the Act  is the Minister of Home Affairs.

Malaysia could also refuse to send Arif and his family back to Turkey as it was ‘… was in fact made for the purpose of prosecuting or punishing the person on account of his ….political opinions..’ or ‘…he might be prejudiced at his trial or punished or imprisoned by reason of his … political opinions…’

As, it can be argued, Malaysia may have had many legal reasons in Malaysian law to reject Turkey’s request that Malaysia send him and his family back to Turkey. What happened to people send back in the past would also be a consideration.

The Malay Mail report also disclosed that one of other Turkish sent back to Turkey in 2017 was not even accorded a fair trial. ‘In 2017, three Turkish men associated with Gulen — Turgay Karaman, İhsan Aslan and İsmet Özçelik — were deported from Malaysia to Turkey despite international warnings over the risk of torture. Ozcelik, a Turkish academic, in July was given a jail sentence of almost 10 years without even being able to present his final defence…’(Malay Mail). He certainly did not get a fair trial.

As such, the Malaysian government, especially the Minister of Home Affairs, must now provide an assurance that Malaysian law was adhered to in this particular case, and further that Malaysia is not in violation of the principle of non-refoulement.

Malaysia also must clarify its position as to whether Malaysia will still recognize UNHCR’s recognition of asylum seekers and/or refugees in Malaysia, and if so, will Malaysia protect such persons and no more return them to the very countries they are fleeing from in breach of the principle of non-refoulement.

If not, then even UN recognized asylum seekers or refugees are no longer safe in Malaysia, and the United Nations must immediately take steps to remove all such asylum seekers and/or refugees from Malaysia to a safer country. This will be a most embarrassing for Malaysia.

In the event that Malaysia cannot give the needed assurance, UNHCR may have to move out of Malaysia, for after all Malaysia may be a destination country for potential asylum seekers and/or refugees because there is a UNHCR office in the country.

Malaysia’s positive image for its stance against human rights violations by Israel and even Myanmmar, amongst others, may now be impacted by these recent violations of the principle of non-refoulement of asylum seekers, more so UNHCR recognized asylum seekers.

MADPET reiterates its call for Malaysia to speedily enact a Malaysian law on Refugees and Asylum Seekers, wherein there will be process on how Malaysia will determine who is asylum seeker and/or refugee, and their rights in Malaysia.  

MADPET also urges Malaysia to clarify its position when it comes to UNHCR recognized asylum seekers and/or refugees, including guaranteeing that Malaysia will no more in the future violate the principle of non-refoulement;

MADPET also urges the Malaysian Government including the Minister of Home Affairs  Muhyiddin Yassin to provide an explanation and legal basis as to why Arif Komis, his wife and their 4 children were arrested and returned to Turkey; and

MADPET reminds Malaysia that human rights must never be sacrificed for reasons of maintaining or improving political and economic relations with other countries.

Charles Hector
For and on behalf of MADPET (Malaysians Against Death Penalty and Torture)



***
See earlier posts:- 

Turkish teacher and FAMILY arrested and may be deported back to Turkey? Principle of 'non-refoulement" 

FMT has learnt that Komis who arrived in Turkey with his wife and their four young children today was swiftly detained by police.

Activists, rights groups blast Putrajaya after family of 6 sent back to Turkey

Arif Komis, with his wife and four daughters. Malaysia deported the family following a request by Turkey.
PETALING JAYA: Two prominent activists have condemned Putrajaya after a Turkish national and his family were handed over to Ankara, despite the United Nations High Commissioner for Refugees (UNHCR) classifying him a “person of concern” who could be harmed if he was forcibly returned to his home country.

Prominent Muslim spokesman Dr Ahmad Farouk Musa and former ambassador Dennis Ignatius said the latest action of deporting Arif Komis, his wife and their young children was shameful and proof that the present ruling coalition’s commitment to defend human rights was a sham.

“We voted them into power thinking that the standard of human rights would improve. But they are just another group of arrogant politicians who only talk without having anything in effect,” Farouk, who heads the Islamic Renaissance Front told FMT.

Dennis contrasted the treatment meted out to Komis with government leaders’ repeated defence of Indian Muslim preacher Dr Zakir Naik, who has been charged in absentia in India with money laundering.
Dr Ahmad Farouk Musa.
Dennis recalled a statement by Foreign Minister Saifuddin Abdullah’s assurance that Putrajaya would be more careful in “sending people back”, with a promise to scrutinise extradition requests based on the spirit of human rights, freedom and the rule of law.

“Now we are left to wonder whether all those grand statements about human rights are just empty rhetoric, a mere ruse to justify the government’s refusal to deport Zakir Naik,” the outspoken former envoy told FMT.

FMT has learnt that Komis who arrived in Turkey with his wife and their four young children today was swiftly detained by police.

His deportation comes some two years after Malaysia fulfilled a similar request by the Turkish government to deport three of its nationals from Malaysia, which drew strong reactions from rights groups.

Ankara accuses Komis, who works at a Turkish private school in Kuala Lumpur, of links to the Gulen group, a faith-based social movement inspired by the teachings of exiled Turkish Muslim preacher Fethullah Gulen.
Dennis Ignatius.
The Turkish government and official media call the group Feto, or Fethullahist Terrorist Organization, and has accused it of masterminding the failed coup in 2016.

Farouk described the move to deport Komis as the latest in a long chain of incidents “that was like a knife that strikes deep into our hearts”, and warned that Malaysia risked being known as a “pariah state” in the eyes of the international community for its disregard of human rights and rule of law.
Farouk took to task Saifuddin for not fulfilling a promise to observe an SOP to ensure that no one will be victimised by deportations.

He said following the outrage by rights groups over Malaysia’s deportation of four men to the Egyptian military regime earlier this year, Saifuddin had said that future cases would be referred to his ministry first.

“But it seems that the right hand doesn’t know what the left is doing. And that the police have their own SOP and were oblivious of any such rule or regulations by Wisma Putra.

“To me it only shows how incompetent the foreign minister is in ensuring that human rights is observed in the new Malaysia,” said Farouk.
Dennis said the policy of deporting exiles wanted by authoritarian regimes was a shameful practice under the previous government, and was done to appease fellow Muslim states.

“It also raises the question of double standards – those fleeing persecution or prosecution from non-Muslim countries are given special protection whereas Muslims fleeing well-documented persecution from their own governments are sent back. It is imperative that the government adopts a fair and transparent policy for all such cases in the interest of upholding the rule of law,” he said.
Shamini Darshni Kaliemuthu.
Meanwhile, Amnesty International described the move to send back the Komis family as “deplorable”

“The family is at risk of serious human rights violations or abuses back in their country,” said Amnesty Malaysia’s executive director Shamini Darshni Kaliemuthu.

“The Malaysian authorities must never deport individuals where there is clear evidence of the human rights violations they may face at their destination,” she said, adding that Komis must be released “unless there is credible evidence of internationally recognisable criminal acts”.

Earlier, Human Rights Watch said the Pakatan Harapan government under Dr Mahathir Mohamad was “turning out to be just as bad as Najib and Barisan Nasional” in failing to protect refugees.

“This is a schoolteacher and his family who are persons of concern to UNHCR, with legal documents to work in Malaysia. They should be released and allowed to seek refugee protection,” HRW’s deputy Asia director Phil Robertson told FMT.

Komis is an asylum-seeker registered with the UNHCR office in Malaysia.

FMT has sighted a letter by the UNHCR urging Komis not to be deported to Turkey pending a decision on his application for refugee status.

FMT has reached out to the UNHCR for comments and is awaiting their response. The Turkish embassy in Malaysia has meanwhile refused to comment on the matter. - FMT, 30/8/2019


 

Friday, August 30, 2019

Turkish teacher and FAMILY arrested and may be deported back to Turkey? Principle of 'non-refoulement"

Well, Malaysia has allegedly arrested a Turkish teacher and family who may be deported back to Turkey...and he is a UNHCR recognised asylum seeker...

We recall that Malaysia also arrested and deported earlier this year  in May 2019 a Thai National, one Praphan Pipithnamporn, then a  United Nations High Commissioner for Refugees(UNHCR) recognized asylum seeker..

Then we have Zakir Naik, where Malaysia refused to send back to India...

The concern is whether Malaysia's response is determined by which country that is making the request? Is religion a factor? 

Malaysia risk violation of the principle of non-refoulement when it sends back refugees and/or asylum seekers ...more so when the said persons are recognised by the UNHCR as Refugees and/or Asylum Seekers...

Turkish Presiden Erdogan is a friend of Anwar Ibrahim...so, what does Anwar say about this violation of the principle of 'non-refoulement'? 

Zakir Naik, on the other hand was wanted for money-laundering offences...besides some terrorist linked offences by India... 

Without a clear Refugee and Asylum Seeker law in Malaysia, are these arrest and deportation on the 'whims and fancies' of the Malaysian Prime Minister and government? 

Who decided to arrest and deport people? The Home Minister? How is he deciding? What are the reasons? 

Could such decisions be challenged in Malaysian Courts by way of Judicial Review? It should be. After all the Judiciary has a duty to ensure that the government(Executive's) decisions are just and right > and the courts have the power to overturn bad decisions of the PM or Home Minister or the Cabinet? Was this matter even raised in Cabinet or is it simply a decision by the Home Minister? 

Malaysia has in the past also deported Turkish back to Turkey - what happened to them...see one media report below about one such person.. 'İsmet Özçelik was deported in 2017 from Malaysia to Turkey, where he was accused of having ties to the network of Fethullah Gülen, a cleric who Ankara says sought an uprising the previous year...A year later, he was sentenced to 9 yrs and 11 months on charges of membership and propaganda of Gulen movement via social media....read more in media report below?

Is Turkey targeting the Opposition?

What will the PH government do? Will they follow the previous BN government, and send back to Turkey anyone that Ankara demands? 

 

 

 

Malaysia to deport Turkish teacher under UN protection?


A Turkey-based human rights website said it received an email from eyewitnesses claiming that Komis, his wife and four children were nabbed two nights ago from their home in Kuala Lumpur. — Picture via Twitter/Global Rights Issues
A Turkey-based human rights website said it received an email from eyewitnesses claiming that Komis, his wife and four children were nabbed two nights ago from their home in Kuala Lumpur. — Picture via Twitter/Global Rights Issues
KOTA KINABALU, Aug 30 — Turkish teacher Arif Komis and his family who are protected by the United Nations High Commissioner for Refugees (UNHCR) have been taken by the police to be deported home for prosecution, according to several human rights activists.

Turkey-based human rights website Turkeypurge.com said it received an email from eyewitnesses claiming that Komis, his wife and four children were nabbed two nights ago from their home in Kuala Lumpur and are currently being held at an immigration centre near Putrajaya where they are being processed for deportation at the request of the Turkish government.

“Mr Komis, who is a chemistry teacher, was repeatedly denied passport by the Turkish Embassy and thus given protection by the UN. He and his family are in UN protection,” Turkeypurge wrote.

According to the news portal, Komis was working at a group of schools affiliated with the Gülen movement, which Malaysia has deemed a terror group that has been accused by Turkish President Recep Tayyip Erdogan of masterminding a failed coup attempt in 2016.

Malay Mail has contacted UNHCR and the Immigration Department to verify the allegations and is waiting for a reply.

The Komis family’s alleged arrest and possible deportation was also tweeted by human rights group Global Rights Issue and Human Rights Watch’s Asia division deputy director Phil Robertson, who urged Malaysian authorities not to send them back to Turkey where they are at danger of persecution.

“Where’s Malaysia civil society to protect this Turkish person of concern to UNHCR and family? Why is the Pakatan Harapan government violating refugee rights in this way? Why’s a simple school teacher treated so shoddily? Don’t send him back to Turkey!” Robertson tweeted, tagging Prime Minister Tun Dr Mahathir Mohamad and Foreign Minister Datuk Saifuddin Abdullah.

Some other Twitter users replying to the post have compared and contrasted the treatment of the Turk to that of controversial Mumbai-born Islamic preacher Dr Zakir Naik, who Malaysia refuses to deport home to India where he faces money laundering and terror-related charges.

Other social media users also asked if it is acceptable for Malaysia to forcibly deport someone under UN protection.

Dr Mahathir pledged his Pakatan Harapan government’s support for the Turkish government under Erdogan during a visit to the republic last month, and said Malaysia will continue to crack down on members of the Gulen group, also known as the Gulenist Terror Organisation (Feto).

Malaysia previously extradited wanted men by the Turkish government suspected of involvement with Feto, in what Ankara claimed is a group led by US-based exile preacher Fethullah Gulen.

In 2017, three Turkish men associated with Gulen — Turgay Karaman, İhsan Aslan and İsmet Özçelik — were deported from Malaysia to Turkey despite international warnings over the risk of torture.

Ozcelik, a Turkish academic, in July was given a jail sentence of almost 10 years without even being able to present his final defence. Karaman, a school principal, was also sentenced to six years in prison the same month.

Feto is gazetted as a terror group, but only by Turkey and the Organisation of Islamic Cooperation — of which Malaysia is a member. The UN objected and demanded that Turkey release the men and pay them compensation. - Malay Mail, 30/8/2019

Malaysian police have detained a Turkish teacher and his family working at a group of schools affiliated with the Gülen group, which is accused by Turkish President Recep Tayyip Erdoğan of masterminding a failed coup attempt in 2016.

According to an e-mail sent to Turkeypurge editors, Arif Komis, a Turkish teacher, and his famiyl members are currently held in a detention center at the Immigration Office near Putrajaya. They are believed to be detained upon a request by the Turkish government, and thus face deportation to Turkey


According to eyewitnesses, Mr. Komiş, his wife and 4 kids were detained in a house raid in Kuala Lumpur late on August 28, 2019. They are likely to be sent to Turkey for prosecution.

Mr. Komis, who is a chemistry teacher, was repeatedly denied passport by the Turkish Embassy and thus given protection by the UN. He and his family are in UN protection.

Over 100 Gulenists forcibly returned to Turkey so far: minister

More than 100 people were forcibly returned from abroad as part of the Turkish government’s post-coup crackdown against the Gulen movement, Foreign Minister Mevlut Cavusoglu said.

Speaking to media on the second anniversary of the July 15, 2016 failed coup, Cavusoglu said the government rounded up over 100 such people abroad and brought them back to Turkey as part of investigations.

“We brought back several leading FETO members from abroad. It made it into the news on some occasions and didn’t on others. We didn’t speak about some of those in the media at the request of the countries they were brought from. We can say that we have brought back over 100 leading FETO members from several countries,” Cavusoglu said.

Pro-government Daily Sabah reported last week that Turkey’s Foreign Ministry has located 4,600 suspected followers of the Gulen movement in 110 countries so far.

Turkish president Erdoğan accuses the Gülen movement of masterminding a failed coup attempt in Turkey in 2016 and calls it FETO [short for the alleged Fethullahist Terrorist Organization] while the latter denies involvement in the coup and any terrorist activities.

More than 150,000 people have been detained and 90,000 were remanded in prison over Gulen links in Turkey since the summer of 2016. Meanwhile, Erdogan called on foreign governments to punish Gulenists in their own countries.

So far, a number of countries like Saudi Arabia, Malaysia, Georgia and Myanmar handed over academics, businessmen and school principals upon the Turkish government’s request despite the fact that some of those victims already had refugee status with the United Nations.

On some occasions, Turkish intelligence agency was reported to have abducted the suspected Gulenists overseas despite rulings by local courts turning down Turkey’s requests for deportation. - Turkey Purge, 29/8/2019

Malaysia to deport Turkish family upon request from Ankara claiming Gülen links: report


PHOTO: Kronos
A Turkish family under UN protection in Malaysia is being held at Kuala Lumpur International Airport by local officials who are planning to deport them upon a request from Turkey on accusations of membership in the faith-based Gülen movement, according to the Kronos news website. 

Malaysian police on Wednesday evening detained Arif Komiş, who was an executive at the Gülen-linked Hibiskus International School, along with his family, the report said.

According to an official document on its website, the UN provided protection to the Komiş family on June 12 after they filed an application for asylum.

The UN in mid-August moved six Gülen-linked teachers from Mongolia to Canada after accepting their asylum applications due to imminent threats from the Turkish government.

In 2017 three Turkish nationals were detained and deported to Turkey by Malaysian officials upon a request from Ankara.

Turkey accuses the Gülen movement of orchestrating a 2016 coup attempt, although it strongly denies any involvement.

Since the failed coup, over 100 individuals have been brought back to Turkey from abroad, while many other countries, most recently Brazil, have rejected Ankara’s requests.

Turkey has been conducting a massive post-coup crackdown targeting Gülen movement followers.- Turkish Minute, 29/8/2019

 
 
İsmet Özçelik, a Turkish academic wo was abducted and rendered from Malaysia to Turkey and later sentenced to 9 yrs and 11 months in prison, has still been held in prison despite having suffered a cardiac problem for over twelve days.

Özçelik son’s Suat Özçelik tweeted Saturday that his father has been denied medical procedure for days.

“Today is the 12th day. My father has not yet been taken to a doctor for any medical purposes,” Özçelik tweeted.

İsmet Özçelik was deported in 2017 from Malaysia to Turkey, where he was accused of having ties to the network of Fethullah Gülen, a cleric who Ankara says sought an uprising the previous year.

A year later, he was sentenced to 9 yrs and 11 months on charges of membership and propaganda of Gulen movement via social media.

Özçelik was indicted on charges of depositing money to now-closed Islamic lender Bank Asya, which was linked to the Gülen movement, and using the ByLock smartphone application, which is claimed to be the main tool of communication among followers of the movement by Turkish authorities.

Both acts are considered criminal activity by the Turkish judiciary, which has been harshly criticized for acting on orders from the government. - Turkish Purge, 10/8/2019

Wednesday, August 28, 2019

Public Prosecutor's opening statement at former premier Najib Abdul Razak's 1MDB trial...

Najib's 1MDB case is complicated - but on the first day of the trial, we have the benefit at looking at the Public Prosecutor's Opening Statement... which may help some of us understand better what happened...

But, be cautious, this is what the Public Prosecutor says - now, we need to see whether he can prove all the charges beyond reasonable doubt ...What will the Judge decide at the end of the case... 

What is the Pakatan Harapan government doing to tighted up the laws of Malaysia to ensure that similar things will never happen in the future..? 

We have several Parliamentary Committees, if you look at the Parliament Website, ...BUT what exactly are they doing...are they monitoring continuously the government and Government-linked companies? Are they having public inquiries ...or simply 'closed-door' secret sessions...  

 

Sri Ram tells of 'elaborate charade designed to enrich Najib'

Published:  |  Modified:
   
In his opening statement at former premier Najib Abdul Razak's 1MDB trial, lead prosecutor Gopal Sri Ram outlined how an elaborate charade was acted out in four phases.

The lawyer said the accused's ultimate aim was to obtain gratification for himself and had succeeded in achieving this.

“An elaborate charade was employed. It was acted out in four phases in which several characters played a part. But it was the accused who played the pivotal role. His objective was to enrich himself.

“Although this case concerns four phases, the events in respect of them are to be considered as part of a consecutive story because of the pre-arranged plan by the accused to enrich himself,” he told the Kuala Lumpur High Court this morning.

Sri Ram also revealed that an important character in this charade was fugitive businessperson Jho Low, whom he described as Najib's “alter ego and mirror image.”

Summary of Najib’s 1MDB ‘donation’ case

Najib is facing 25 charges of receiving RM2.28b, which originated from 1MDB through Tanore Finance Corp, a company owned by Eric Tan, a close associate of fugitive businessperson Jho Low.
Below is the opening statement in full:

1. This case concerns the monies of a company called 1Malaysia Development Berhad widely known as 1MDB. It was originally called Terengganu Investment Authority or TIA. The accused was instrumental in changing its name to 1MDB. He also caused amendments to be made to the articles of the company to place himself in sole control of important matters concerning the business and affairs of the company. In short, he was its plenipotentiary.

Additionally, he was the chairperson of the company's board of advisers. He used that position and that of the 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. The ultimate aim of the accused was to obtain gratification for himself. He succeeded in achieving that aim.

2. An elaborate charade was employed. It was acted out in four phases in which several characters played a part. But it was the accused who played the pivotal role. His objective was to enrich himself.

3. Although this case concerns four phases, the events in respect of them are to be considered as part of a consecutive story because of the pre-arranged plan by the accused to enrich himself.
4. An important character in the charade is a man called Low Taek Jho or Jho Low. He is a fugitive from justice. He was involved in TIA, and later in 1MDB. The prosecution will prove that the accused, by his words and conduct, made it clear to 1MDB’s officers, its board and others that Jho Low was his alter ego. In truth, Jho Low was the accused's mirror image. 

The prosecution will establish facts which will give rise to an irresistible inference that Jho Low and the accused acted like one at all material times.

5. The four charges under Section 23 of the MACC Act are in respect of each of the four phases.
In respect of these charges, the prosecution will prove, through direct and circumstantial evidence, that the accused, first in his capacity as the deputy prime minister and minister of finance, and later as prime minister and minister of finance, took several steps that led to part of 1MDB's funds being channeled into his account through a circuitous route to prevent detection of its source. 

The accused thereby used his position for gratification. In each of the phases, the accused acted as one with Jho Low.

6. The first phase concerns the scenario of a so-called joint venture created by the accused (acting through Jho Low and one Tarik Obaid, a close associate of Jho Low). It was a false scenario of a joint venture between 1MDB and a company called PetroSaudi International Ltd or PSI. It was called Project Aria. In the first phase, the scene worked in the following way.

7. 1MDB borrowed US$1 billion purportedly to invest in a joint venture company called 1MDB Petro Saudi Ltd. The money was to be paid into the account of the joint venture company. Petro Saudi International took up to 60 percent of the shares in the allegedly joint venture by injecting certain assets of dubious value. 

The US$1 billion was to represent 1MDB's contribution to its 40 percent shareholding. But the so-called joint venture agreement was entered into not with PSI, but with a company called Petro Saudi Holdings (Cayman) Ltd. And it was Tarik Obaid who executed the agreement on behalf of PetroSaudi Holding (Cayman) Ltd.

Evidence will be led to show the abnormality of the so-called joint venture which close scrutiny will reveal to be a mere device to siphon 1MDB's money for the accused’s benefit.

8. The prosecution will, through oral and documentary evidence, prove that US$700 million of the US$1 billion, instead of being paid into the joint venture company's account, was diverted by the accused into a company called Good Star Ltd which in truth had nothing whatsoever to do with the joint venture. It was incorporated in Seychelles on May 18, 2009, that is to say, five months before the joint venture agreement was entered into. It was a company owned and controlled by Jho Low.

9. The payment of Good Star was made in great haste and without approval from 1MDB's board of directors and in defiance of its directions. Good Star was falsely described as the wholly-owned subsidiary of PSI (Petro Saudi International). The payment to Good Star was vouched for the accused through Jho Low as monies owned by the joint venture agreement referred to a loan payable by the joint venture company to PetroSaudi Holdings (Cayman). 

The prosecution will, through documents, show that the so-called loan was a sham employed to justify the payment to Good Star.

10. In March 2010, 1MDB entered into a so-called Murabaha financing agreement under the terms of which an alleged US$1 billion equity in the joint venture company was converted into useless Murabaha notes and 1MDB was required to make available to the joint venture company a sum of US$1.5billion. In September 2010, a sum of US$500 million was sent to the joint venture company. 
This money has gone missing. 

Then in May 2011, a further sum of US$330 million, which was supposed to be the second tranche of the investment into the Murabaha financing, was diverted to Good Star. The accused took positive steps to put through this transaction.

11. From the original sum of US$700 million, sums of money were disbursed by Good Star to several persons, including one Prince Faisal, a close associate of the accused, Jho ,and one Prince Turki. 
Prince Turki, the accused and Jho Low were so close that they holidayed together on a yacht in the south of France. Prince Faisal received US$12,500,000 from Good Star on Feb 18, 2011. He received a further sum of US$12 million from Good Star on June 10, 2011, which came from the Murabaha scam. 

From these sums, he transmitted US$20 million to the accused's personal account in two tranches of US$10 million each. The first tranche was received by the accused on Feb 24, 2011, that is to say, six days after Faisal received the money. The accused received the second tranche on June 14, 2011, that is to say, four days after Faisal received the money. The US$20 million amounts to an equivalent of RM60,629,839.43. This forms the subject matter of the first charge.

12. The first phase came to an end in 2012 with 1MDB holding worthless pieces of paper. The scam having been achieved, Good Star was wound up on May 2, 2014, and PetroSaudi International was wound up on April 8, 2015.

13. The second phase concerns the acquisition of assets of dubious value by 1MDB. The accused, using his position and acting through his mirror image Jho Low, took positive steps and caused 1MDB to enter into two transactions as a result of which the accused obtained a sum of RM90,899,927.28 as gratification. This forms the subject matter of the second charge.

14. These two transactions concerned the acquisition of two independent power producers namely, Tanjong Energy Holdings Sdn Bhd and Mastika Lagenda Sdn Bhd. Mastika owned 75 percent shares in Genting Sanyen Sdn Bhd. To make the purchase, 1MDB acted through its subsidiaries 1MDB Energy Holdings Ltd, 1MDB Energy Ltd and 1MDB Energy (Langat) Ltd (all Labuan companies), as well as through Malaysian registered companies, namely, 1MDB Energy Sdn Bhd and 1MDB Energy (Langat). These companies were used to raise finance for both acquisitions.

15. I now take each acquisition separately. A local bridging loan of RM6.17 billion was raised for the acquisition of Tanjong Energy. An additional sum of US$1.75 billion was raised through the issue of 10-year structured loan notes. Goldman Sachs was appointed as lead arranger for the issuance of these notes.

16. Of the US$1.75 billion, US$786 million went to Tanjong Energy. Of the balance, a sum of US$907 million was paid into the account of 1MDB Energy Ltd with Falcon Bank in Hong Kong. Of this sum, approximately US$577 million in round figures went to Aabar Investments PJS Ltd (BVI).
This payment was purportedly as a security deposit for Aabar’s holding company IPIC issuing a guarantee, guaranteeing the notes. In addition to the security deposit, Aabar was also given an option to take up 49 percent of shares owned by 1MDB Energy Ltd in 1MDB Energy Sdn Bhd. 
On May 22, 2012, US$295 million was paid by Aabar to a company called Blackstone Asia.

Blackstone is a company controlled by Jho Low (photo) through his associate Tan Kim Loong, also known as Eric Tan. He is also a fugitive from justice. Additionally, on July 25, 2012, a further sum of US$133 million was transferred by Aabar to Blackstone. These monies remained with Blackstone until October 2012. Goldman Sachs was paid US$192.5 million in arranger's fee for this bond issuance.

17. For the Mastika acquisition, the alleged purchase price was RM2.75 billion. The money for this came from two sources. First, another 10-year structured loan notes of US$1.75 billion. For this, 1MDB paid Goldman Sachs US$110 million in arranger's fee. So, 1MDB got a nett sum of US$1.64 billion. This sum was paid into 1MDB Energy (Langat) Ltd's account with Falcon Bank, Hong Kong. 

The second was a local loan of RM700 million. The total loan raised from these two sources was about RM6.16 billion. There was, therefore, an available excess of RM3 billion. This excess was almost wiped out by a payment on Oct 23, 2012 to Aabar Investment PJS (BVI) of a sum of approximately USD790 million in round figures as a security deposit for Aabar's holding company IPIC for allegedly guaranteeing the repayment of the notes. 

As additional security, Aabar was given an option to take up 49 percent shares owned by 1MDB Energy (Langat) Ltd in 1MDB Energy (Langat) Sdn Bhd. For the Mastika acquisition, Genting Power was paid US$710 million. The loan raised through the notes for the Mastika purchase came into 1MDB Energy (Langat) Ltd’s account on Oct 19, 2012.

18. On Oct 23, 2012, Aabar paid a sum of approximately US$291 million in round figures to Cistenique Investment Fund or CIF. On the same day, Aabar paid US$76 million to Enterprise Emerging Markets Fund (EEMF). On Oct 23, 2012, Aabar paid US$75 million to Blackstone. This was part of the US$790 million paid to Aabar. 

Later, Nov 5, 2012, Aabar paid a further sum of US$96 million to EEMF. Soon after CIF and EEMF received the monies in question, they paid it to Blackstone. These monies were then channelled by Blackstone into the accused’s account as follows.

19. On Oct 30, 2012, a sum of US$5 million was paid into the accused’s account at AmPrivate Bank. Then, on Nov 19, a sum of US$25 million was paid into the accused’s account. The total sum received by the accused in the second phase is set out in the amended second charge.

Evidence will be led to show how financial layering took place to provide a false justification for the movement of the monies. So much for the second phase.

20. The third phase concerns another purported joint venture between 1MDB and Aabar in equal shares. The joint venture company was called ADMIC. This forms the subject matter of the third charge. The purpose of this alleged joint venture was to develop TRX or the Tun Razak Exchange in Kuala Lumpur. 

IPIC was to guarantee Aabar's investment. The Ministry of Finance, of which the accused was minister, guaranteed 1MDB's investment by way of a letter of support. A loan of US$3 billion was raised for this alleged purpose. Goldman Sachs acted as the arranger of the loan.

21. On March 14, 2013, the accused signed a letter of support to raise a loan through the issue of bonds by 1MDB from the Bank of New York Mellon Group in the sum of US$3 billion. On March 19, 2013, a sum of US$2.721 billion was disbursed into the account of 1MBD Global Investment Limited with the BSI Bank at Lugano in Switzerland. The balance went to pay the fee of Goldman Sachs.

22. From the US$2.721 billion, a sum of US$1,060,606,065 was paid into the account of two fiduciary funds, namely, Devonshire Funds Ltd and EEMF. Devonshire received US$646,464,649 in five tranches over two days, that is to say, on March 20 and 21, 2013. EEMF received US$414,141,416 in three tranches, also within two days, that is, March 20 and 21, 2013.

23. On March 21, 2013, Devonshire transferred US$430 million to Granton Property Holdings Ltd which is a company controlled by Eric Tan, Jho Low’s shadow. On the same day, Granton transferred the whole of that sum to Tanore Finance, also a company controlled by Eric Tan.

Also, on the same day, that is to say, March 21, 2013, Devonshire transferred a sum of US$210 million to Tanore Finance Corporation. Then, between March 22, 2013 and March 25, 2013, EEMF transferred US$250 million to Tanore which therefore by that date had US$890 million in its hands.

24. Between March 21, 2013 and April 10, 2013, Tanore transferred US$681 million to the accused's account. In terms of our currency, this amounted to RM2,081,476,926. This sum forms the subject matter of the amended third charge.

25. Based on the evidence that the prosecution will adduce, the so-called joint venture never took off. There was no investment and there was no true joint venture. It was all a sham. This concludes the third phase.

26. The fourth phase concerns the purchase of the Aabar options by 1MDB. These are the options that were given to Aabar in 2012 as allegedly part of the consideration for IPIC’s guarantee for the notes that raised US$3.5 billion forming part of the second phase.

27. In May and August 2014, ,through its subsidiary 1MDB Energy Holdings Ltd, obtained two loans totalling US$1.225 billion from Deutsche Bank Singapore. The accused approved this transaction. The loans were secured by guarantees provided by 1MDB Energy and 1MDB Langat.

There was a bridging loan of US$250 million and a facility loan of US$975 million. The first loan of US$250 million was made available on May 26, 2014. From this amount, a sum of US$239,939,970 was paid into 1MDB Energy Holdings Ltd’s account with Falcon Bank Hong Kong on 28 May 2014. Of this sum, Energy Holdings paid Aabar Investments PJS Ltd BVI US$175 million to its account in BSI Lugano, Switzerland allegedly to part redeem the option given as additional security that was mentioned earlier when dealing with the second phase.

28. From the sum of US$175 million, a sum of US$19 million was paid by Aabar to the account of a company called Affinity Equity International Partners Ltd. The payment was made on June 18, 2014. The account was held at DBS Bank Ltd Singapore. Affinity Equity is controlled by Eric Tan. Of the US$19 million, a sum of US$1.89 million was transferred to a company called Blackrock Commodities (Global) Ltd at its account held in DBS. Blackrock is a company controlled by Eric Tan. On June 23, 2014, a sum of GBP750,000 was transferred to the accused’s account. This works out to RM4,093,500.

29. I now turn to the second loan of US$975 million which was made available on Sept 1, 2014. Of this sum, US$250 million was utilised to discharge the bridging loan. That left US$25 million. On Sept 3, a sum of US$223,333,000 was transferred to Aabar Investments PJS Ltd (incorporated in Seychelles) at its account with UBS Singapore. Then, on Sept 30, 2014, US$457,984,607 was paid to Aabar Investments PJS Ltd (incorporated in Seychelles) at its account with UBS Singapore. 

Between Oct 16, 2014 and Nov 17, 2014, Aabar transferred a sum of US$226 million to Aabar International Investment PJS Ltd to its account in Barbados. Between Oct 16, 2014 and Nov 17, 2014, Aabar Barbados transferred US$225,500,000 to Vista Equity International Partners Ltd (Barbados), a company owned and controlled by Eric Tan. Between Oct 23, 2014 and Dec 19, 2014, Vista Equity, through five tranches in sterling currency, transferred a sum equivalent to RM45,837,485.70 to the accused’s account. This sum, together with the RM4,093,500 earlier mentioned, forms the subject of the fourth charge. It follows that part of the sum alleged to be used to redeem the option ended up in the accused’s account. So much for the fourth phase.

30. I now turn to the 21 charges for money laundering offences. These are the AMLA charges. 

The first nine charges relate to receiving of the RM2,081,476,926 which forms the subject matter of the amended third charge. The monies fell into the accused’s account ending 9694 with AmIslamic Bank. Between Aug 2, 2013 and Aug 23, 2013, the accused transferred a sum of RM2,034,350,000 to Tanore Singapore. 

Simultaneously, the accused used the balance of RM22,649,000 to pay four entities and one individual. The prosecution's case is that all these payments benefitted the accused.

31. After making these payments, the accused transferred the balance into a new account ending 1880 with AmBank through two transfers amounting RM162,436,711.87. He closed his account ending 9694.

32. The 10th charge and charges 16 to 19 relate to the transfers made by the accused to Tanore involving RM2,034,350,000.

33. Charges 11 to 15 concern the use by the accused of the funds earlier referred to through payments to the four entities and one individual. All these payments were made by cheques signed by the accused.

34. Charges 20 and 21 concern the transfer of funds from the 9694 account to the 1880 account.

35. In this latter part of the case, the prosecution will establish the AMLA charges through direct and circumstantial evidence. It will be proved that in all the circumstances of the case, the accused committed the offence of money laundering contrary to Section 4(1)(a) of the Anti-Money Laundering and Anti-Terrorism Financing Act 2001 (Amlatfa).

36. After the 1MDB scandal broke in early July 2015, the accused with his mirror image Jho Low took steps to cover his tracks. Sham documents were produced to pretend a donation from an Arab prince. Among these were letters and four cheques, each for a sum of US$25 million, purportedly written out by a person said to be the Arab donor. But these cheques were never meant to be encashed and were never encashed.

37. The prosecution will also produce evidence to show that the accused took active steps to evade justice. He interfered with the course of the investigation of this case which has come to be known as the 1MDB scandal. 

He took active steps to effect a cover-up of his criminal acts. The prosecution will rely on all this evidence to show that the accused had the requisite mens rea when the offences with which he is charged were committed. - Malaysiakini, 28/8/2019