Can AG refuse MLA request from foreign authorities?

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Is Malaysia is shying away from the request of Switzerland's Office of the Attorney-General (OAG), made a second time recently, for mutual legal assistance into its investigations into alleged embezzlement and money-laundering involving 1MDB?

A key question going around after the second request for assistance under the international Mutual Legal Assistance Treaty is whether Malaysia is shying away, or whether the diplomatic papers “have got lost”.

A Mutual Legal Assistance Treaty is an agreement between two or more countries for the purpose of gathering and exchanging information in an effort to enforce public laws or criminal laws.

The Swiss investigation is centred on fraud based on a form of “Ponzi” scheme, where the paying of the returns on initial investments from funds obtained come from subsequent investors, rather than from legitimate revenue from investments.

The Attorney-General's Chambers (AGC) responded on Oct 6 that it has not yet received any additional MLA request from the Swiss OAG.

"Nevertheless, the chambers wishes to reiterate its commitment in international cooperation and will appropriately consider the request in accordance with the law once it is received through the diplomatic channel, in accordance with the relevant provisions of Malaysian law relating to mutual legal assistance," the AGC had said in a statement.

The relevant law on this matter is the Mutual Assistance in Criminal Matters Act 2002.

Under this Act, the request has to be made by the attorney-general of the foreign country concerned to the Malaysian attorney-general, Mohamed Apandi Ali.

This is stipulated in Section 19, and it should be done through the diplomatic channel, where it should specify the purpose of the request, the nature of the assistance sought and identify the person or authority initiated in the action.

“It must be accompanied with a certificate of appropriate authority from the foreign state that the request is made with respect to criminal matters within the Act, contain a description of the criminal matter. There should also be a summary of the relevant facts and laws of the case,” the Act states.

If the investigation sought concerns a person, it must stipulate the name and location where the person is at or if it concerns a foreign forfeiture order it must contain a statement indicating when the judicial proceedings are likely to be instituted.

AG can refuse request under 13 situations

Under Section 20 of the Act, there are 13 situations where the AG can refuse a request under the MLA, such as in Section 20(1)(m) if it affects the sovereignty, security, public order or other essential public interest.

It is not clear whether the foreign investigations into SRC International or 1MDB can be considered to have "affect" Malaysia's sovereignty, or public order, as other jurisdictions are also conducting similar investigations.

Besides the ongoing probe into 1MDB by the Swiss authorities, Malaysia's sovereign fund is also being investigated in Singapore, Hong Kong, the United States and Luxembourg. The US Department of Justice filed a forfeiture action related to the 1MDB funds in a US court last July.

The 12 other circumstances where the AG can refuse a request for assistance under the Criminal Matters Act are:

• The appropriate authority making the request had failed to comply with the terms of any treaty or agreement between Malaysia and that country;
   
• The request relates to the investigation, prosecution or punishment of a person for an offence that is, an offence of a political nature;
   
• The request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Malaysia, it would have constituted a military offence under Malaysian laws, which is not an offence under our ordinary criminal law;
   
• The request was made for the purpose of investigating, prosecuting, punishing or otherwise causing prejudice to a person on account of the person’s race, religion, sex, ethnic origin, nationality or political opinions;
   
• The request relates to the investigation, prosecution or punishment of a person for an offence in a case where the person had already been convicted, acquitted or pardoned by the court or authority, or had undergone punishment;
   
• The request relates to the investigation, prosecution or punishment of a person in respect of an act or omission that, if it had occurred in Malaysia, would not have constituted an offence under Malaysian laws;
   
• The facts constituting the offence do not indicate an offence of sufficient gravity;
   
• The thing requested for is of insufficient importance to the investigation or could reasonably be obtained by other means;
   
• The authority fails to undertake that the thing requested for will not be used for a matter other than the criminal matter in respect of which the request was made;
   
• In the case the request for assistance is made under Sections 22, 23, 24, 25 and 26 or sections 35, 36, 37 and 38, the appropriate authority fails to undertake to return to the AG, upon his request, of anything that is obtained upon completion of the criminal matter;
   
• The provision of the assistance could prejudice a criminal matter in Malaysia; or
   
• The provision of assistance would require steps to be taken contrary to any written law.

-Mkini