The Conference of Rulers has a duty to intervene over 1MDB

What transpired in the past week, especially with the filing of the Verified Complaint by the US Department of Justice (DOJ) on July 20, against the “international conspiracy to launder money misappropriated from 1Malaysia Development Berhad (‘1MDB’), triggers the pressing need for the Conference of Rulers, in accordance with the respective Royal Highnesses’ wisdom and discretion, to exercise the inherent and residual powers to intervene over the matter with all due haste, especially since it involves allegations of billions of dollars misappropriated from the Malaysian public funds.

Interference with local investigations

Over the course of more than a year, Malaysians have waited patiently for the investigations conducted locally to be concluded and for the outcome and findings thereof, only to helplessly witness oppressive measures obstructing due process of law taking place instead.

Officers tasked to look into the scandal, including those from the Attorney-General’s Chambers (AGC), the Malaysian Anti Corruption Commission (MACC), and the Royal Malaysian Police Force (PDRM), were harassed, raided, detained and subjected to arbitrary administrative actions by the powers that be.

The finding of the Public Accounts Committee (PAC) on the scandal was doctored by the PAC chairperson without the consent and knowledge of the other PAC members. The auditor-general’s report on 1MDB is classified as official secret under the Official Secret Act (OSA), precluding the same from being publicly scrutinised, in direct contravention of Article 107 of the Federal Constitution.

And the attorney-general, Apandi Ali, appears to act more like a defense counsel for the Prime Minister, Najib Abdul Razak, and 1MDB, than as a trustworthy and responsible public prosecutor.

All the above leads to no surprise that the local probe into the scandal fail to uncover what enforcement agencies from foreign jurisdictions, particularly in the US, have now managed to come to a clear conclusion of trans-border money-laundering involving funds misappropriated from 1MDB.

Quasi-criminal procedure for forfeiture of assets

The statements of facts laid bare at considerable length in the DOJ’s cause-paper consists of serious and grave crimes, notwithstanding the Verified Complaint involves a civil procedure. In fact, the very procedure requires the establishment of criminal activity as ingredient to be fulfilled for the action in rem to succeed, which is not too dissimilar from our own local law, particularly under the Anti-Money-Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act 2001 (AMLA).

Paragraph 6 of the complaint summarises the nature of the crimes alleged - that between 2009 and 2013, “multiple individuals, including public officials and their associates, conspired to fraudulently divert billions of dollars from 1MDB through various means, including by defrauding foreign banks... to launder the proceeds of that criminal conduct, including in and through US financial institutions.”

While locally there seems to be attempts to downplay the severity of the allegations involved, especially by those aligned to Najib’s administration, it is noteworthy that all the facts stipulated were verified by no less than a special agent of the US Federal Bureau of Investigation (FBI), Robert B Heuchiling, based from “information supplied by ...law enforcement officers, experts, and other witnesses, as well as... investigation... of the [FBI].”

Further, the FBI and our MACC had both confirmed that the MACC assisted the FBI in the investigations, thus putting the question whether the US was meddling over our internal affairs as a non-issue, as it was our own agency that provided the commitment for the cooperation into probing the cross-border criminal activity, and more so since the action filed in the US is pursuant to allegations of misappropriated funds laundered into the US’ jurisdiction.

Allegations of corrupt practices at the highest level

The allegations in the DOJ case on 1MDB illustrates high level corruption involving high level officials that seem to be too cunning and too powerful to be brought to justice here at home.

In fact, the much cited ‘Malaysian Official 1’ in the DOJ complaint, that is said to have received US$20 million (approximately RM72 million) that was misappropriated from 1MDB through a bank account held in the name of Good Star Limited in 2011 and US$681 million (approximately RM2.08 billion) through a bank account held in the name of Tanore Finance Corporation in 2013, fits squarely with Najib’s profile.

This is so since ‘Malaysian Official 1’ is defined in paragraph 28 of the DOJ Complaint as “a high-ranking official in the Malaysian government who also held a position of authority with 1MDB” - corresponding perfectly with Najib’s position as the prime minister of Malaysia, and chairperson of the board of advisers of 1MDB; while paragraph 29 states that ‘Malaysian Official 1’ is a relative of the co-founder of Red Granite Pictures, Riza Aziz - consistent with the fact within the public knowledge that Riza Aziz is the stepson of Najib.

This is fortified even further when paragraph 263 of the complaint states in the clearest terms that ‘Malaysian Official 1’ is the person referred in Apandi Ali’s press statement dated Jan 26, 2016, wherein Apandi confirmed that a sum of RM2.08 billion were transferred into Najib’s personal bank account (despite curiously finding him not guilty of any offence), literally leaving very little to no room for doubt that the grave allegations made in the complaint implicates Najib directly, and, unless immediate actions are taken to clear his name, tarnishes the good name of the whole nation almost beyond repair, but for the Royal Highnesses in the Conference of Rulers to recognise the need for immediate intervention.

Sacrosanct duty of the Agong and the Malay Rulers

It is said that desperate times call for desperate measures. In which regard, and in all humility, the Concerned Lawyers for Justice (CLJ) craves that the Yang di-Pertuan Agong, along with the Royal Highnesses of the members of the Conference of Rulers, would have the wisdom to take the necessary steps to intervene in solving this whole scandal, to summon those implicated in the Verified Complaint to appear before Your Royal Highnesses to show cause and to answer to those serious allegations to Your Royal Highnesses’ satisfactions.

This is especially pressing since the investigations and enforcement against the suspected offenders of the scandal related to 1MDB at the local level had been seriously undermined and compromised, and there is a sense of ubiquitous helplessness among the people witnessing the system being manipulated by those in power to the detriment of the rule of law.

It is our solemn belief that the Malay Rulers and the Agong are placed at the most sacred and appropriate position as the constitutional guardian of the rule of law and order in the country, overseeing all the three branches of the government.

The power and duty to administer the country were delegated from the Malay Rulers to the respective elected and appointed prime minister and his administration, and following which the prime minister and every other minister holding office are required to take the ‘oath of office and allegiance’ the Agong, to preserve, protect and defend the constitution as per Article 43(6) of the Federal Constitution.

Therefore, when there are fundamental breach of this oath by those to whom such power to administer were delegated to, it is submitted that the Agong and the Malay Rulers, being the source of such legitimacy to rule, would have the sacrosanct duty and inherent powers to intervene.

The enlightened opinion expressed by Justice Hamid Sultan in his dissenting judgment in Pathmanathan Krishnan vs Indira Gandhi Mutho and other appeals [2016] 1 CLJ 911, although remains non-binding upon our Courts, may serve as useful guiding principle for our Rulers in exercising such inherent and residual powers, when His Lordship said that the oath of office of the Agong under Article 37(1) of the Federal Constitution to uphold the rules of law and order in the country, “gives constitutional, judicial power to HRH to arrest any form of breach of rule of law as judicial power to do so is entrenched in the oath of office of HRH.”

The time has come for the Their Highnesses to act. And the rakyat are looking up to their Rulers to put an end to this unprecedentedly high-level, prolonged, embarrassing and treacherous scandal.

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MOHD HAFIZUDDIN KHAN NORKHAN is executive director, FATHAH JAMHARI is secretary-general, and AIDIL KHALID is campaign coordinator, Concerned Lawyers for Justice (CLJ). -Mkini