The one who briefed the attorney general must be subjected to serious questioning, Stephen Tan Ban Cheng writes.
Even without having ever socialised with Tommy Thomas since joining the Malaysian Bar nearly 20 years ago and having periodically heard of his idealism from impeccable lawyers of stronger standing, I will never believe he will proceed on the alleged footing on the (1) prosecution and (2) the deal.
This is something so very serious with its implications thereof for the country and its future that the one who briefed the succeeding attorney general must be subjected to serious and strenuous questioning so that the truth will prevail in the interest of all Malaysians, past, present and future.
I wrote the above two paragraphs on the morning of Monday, 18 May 2020 – the day our Malaysian Parliament was scheduled to meet for an unprecedented two hours so as to extend its legitimacy for another six months from now, as per the requirements of the standing orders of the august House.
It was also the day when Malaysian MPs numbering 222 legislators tried to dislodge the present Prime Minister Muhyiddin Yassin through a motion of no-confidence which, given the two-hour or one-day sitting – a man-made pressure cooker atmosphere designed for the occasion – never saw the light of day. The result: the Muhyiddin administration or ministry now clearly enjoys a one-seat majority. Talk about walking on thin ice in a heated political climate.
And by the way, where is the one officer who purportedly briefed the incumbent Attorney General Idrus Harun? Are we dealing with a person who is afraid of his or her own shadow?
From the start, I know this to be a running story. During the day, the Malaysian Bar president, Salim Bashir, has said, among other things, that the attorney general has the right to do what he did.
In this own words, reported by Free Malaysia Today, “In the present case concerning Riza Shahriz Abdul Aziz, one of the Hollywood producers of The Wolf on Wall Street, the charges against, and the process that set this chain of events in motion, have been set out by the current Attorney-General (AG) cum Public Prosecutor (PP), Idrus Harun, through his media release.
“These events seem to be in consonance with the anti-money laundering law, which allows for offences to be compounded by authorities with the consent of the PP.
“The decision to apply for an order of discharge not amounting to an acquittal lies with the AG who has the power to decline to prosecute further at any stage of the trial. This power is similar to the power to stay proceedings in English Courts. Such an order directs the discharge of an accused person without acquitting him.”
I must state categorically that no lawyer worth his salt will ever question that. I never did. The essence of what I had said is whether the decision is worth the effort, meaning whether, loosely speaking, “the call is worth the candle”?
What I was wholly concerned about is the Malaysian Anti-Corruption Commission making representations about the purported stance taken by the former attorney general, Tommy Thomas, in the “plea bargaining” – a term used very loosely – in the Riza case.
Even if it is true that Tommy Thomas has adopted an “open mind” on the negotiations, that is his right since, as the Public Prosecutor, he cannot adopt a biased mind. No one endowed with the right judicial temperament should bear the poisoned seed of bias in his mind since this can bear the fruit of ugly consequences!
I am reassured that the Malaysian Bar President, Salim Bashir, has said the current Attorney General-cum-Public Prosecutor, Idrus Harun, has set this chain of events in motion, resulting in the discharge not amounting to an acquittal for Riza. This certainly clears the picture.
Nothing was ever said about the reluctance, failure or perhaps intransigence of the MACC to retract its earlier statement that it was Tommy Thomas who triggered this chain of events, an assertion that by implication may seriously impugn the integrity, character and record of our former attorney general. This is something wholly undeserved, and coming from a supposed national institution that stands for national integrity, it is more than ironic.
As I write as a 70-year-old patriotic but ageing Malaysian at about 1.30am on Tuesday, 19 May 2020, I am mindful of the “thin ice” nature of the parliamentary majority enjoyed by the Muhyiddin admnistration and the political temperature that threatens to shoot up.
Given such a scenario, all the more (or a fortiori), it is incumbent on all office-holders in elected or public offices in our country, to act in the right way to always and forever buttress the integrity of our public institutions and refrain from the temptation to act just because they have the right to act.
So, please act in the right way, not act just because you have a right to act. That may well spur the world to question the intelligence quotient of the average Malaysian.
The Malaysian Bar president, Salim Bashir, has cited the precedent that “In the long-established case of Teh Cheng Poh v PP, it was held that ‘a prosecuting authority may properly take into account many factors in exercising its discretion’. The factors that ought to be taken into account must be dictated by wisdom, relevant consideration and driven by facts and public interest.”
Let me end by stating this in categorical terms: let us so act to ensure that the principles of reasonableness and proportionality are always present so that the integrity of our public institutions shall shine always, now and forever. Anything short spells betrayal for our blessed country in whom the hopes of the people are loyally reposed.
Media release by former Attorney General Tommy Thomas
1. As I have been mentioned on numerous occasions in the media release issued yesterday by my successor, Tan Sri Idrus bin Harun, I have to put the record straight a second time.
2. I took into account the benefits of the AMLA Act 2001 when I decided to charge Riza Aziz in July 2019 with 5 money laundering offences punishable under Section 4(1) of that Act for receiving proceeds of unlawful activities, between April 2011 and November 2012, totalling USD248 million of monies belonging to 1MDB. I was satisfied that the prosecution had a very strong case to establish the ingredients of the offences. The documentary trail was substantial and highly credible. Upon conviction, the prosecution would have invited the trial judge to impose a sentence commensurate with the severity of the offences, the maximum being 15 years for each charge. But more significantly, the criminal court is given power by Parliament to additionally impose a penalty up to 5 times the amount involved in the unlawful activities, that is 5 times USD248 million, which would work out to some USD1.2 billion. We would have sought this sum upon his conviction.
3. As Public Prosecutor, I personally decided to prosecute about 25 cases. In each of these cases, I was briefed by MACC or the police and DPPs. I probed deeply. My decision-making process took time. From my trial experience, evidence gathering continues from initiation of proceedings until completion of trial. Only when I was satisfied that the prosecution could secure a conviction, did I make the decision to prosecute. It was always a deliberate and properly analysed decision. That same rigour was brought to the decision to prosecute Riza. In none of these 25 odd cases, did I consider favourably a request by any accused to settle on such terribly poor terms to the prosecution. That would have called into question the wisdom and integrity of my decision to prosecute in the first place.
4. In paragraph 2 of Tan Sri Idrus’s media release, reference is made to a minute I made on 19 November 2019 to Datuk Seri Gopal Sri Ram on the letter dated 18 November 2019 from Riza’s solicitors. That indeed was my style. After having read that letter, I wrote a couple of words or sentences to him. I have no access to the original letter with my handwriting. Because of this handicap, I cannot comment on it.
5. What is abundantly clear is that I did not make any decision in relation to Riza’s representation up to the date of my resignation, 28 February 2020. A decision of this importance involving billions of ringgit and significant public interest would be made by me in writing. I did not, and none exist.
6. With regard to communications with the 2 major actors, my successor and Datuk Seri Gopal Sri Ram, the position is as follows. I have not communicated with Tan Sri Idrus since 28 February 2020. This is not unusual. I did not communicate with my predecessor during my tenure. I spoke on a couple of occasions with Datuk Seri Gopal Sri Ram over the telephone between 28 February and 14 May 2020, but this subject was never raised by him. Hence after my resignation, I was kept in the dark on this and all other matters.
7. In Paragraph 3 of the media release, Tan Sri Idrus states that “Malaysia is expected to recover approximately USD108 million”. With the greatest of respect, this is a red herring. By personal diplomacy, we established strong relations with DOJ after I took office. They have returned billions of ringgit, and more monies may be released in future by DOJ. The purpose of prosecuting Riza was not to strengthen our chances of securing monies from DOJ. DOJ would have returned these monies in any event because it belongs to Malaysia and was stolen from Malaysia. Riza is not offering to pay any new money or monies from any source other than DOJ seized assets. The USD108 million, would in any event be returned by DOJ to Malaysia. Thus, Riza is unnecessarily getting credit for returning monies that are not his. Hence, it is a sweetheart deal for Riza but terrible for Malaysia.
8. Finally, even the timing of Riza’s DNAA is bizarre. In both civil and criminal proceedings which proceed to trial, a plaintiff or the prosecution loses substantial leverage over the adverse party if it withdraws court proceeding before the terms of settlement are completely performed. This is elementary. Hence, one needs to question why Riza has been given a DNAA so prematurely.
9. Since Tan Sri Idrus is at pains to emphasize the weight he gave to my so called ‘agreement in principle’ (which itself is a fiction), let me state publicly that I would have never sanctioned this deal. I would have lost all credibility in the eyes of the people of Malaysia whom I endeavoured to serve as public prosecutor to the best of my ability, honestly and professionally if I had approved it. I would have betrayed the trust the Prime Minister and the PH government had reposed in me.
Tan Sri Tommy Thomas
18 May 2020