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Wednesday, June 28, 2017

Claims would be established later in court, says lawyer on DOJ suits



It is normal for any court action to start with cause papers that would make claims and allegations of facts that would only be established later, said lawyer Haniff Khatri on US Department of Justice’s (DOJ) 1MDB-related civil forfeiture suits.
“Even in a substantive criminal case where an accused is charged, the charge sheet (which is normally no more than two pages per charge) would only contain the name of the accused, basic facts of the crime allegedly committed, and the legal basis of making the action a crime," he said in a statement.
“When a party is sued in a civil or quasi-criminal case chooses to contest the claims, and has been given opportunity by the court to file his own cause papers, the court would set hearing date whether by calling witnesses or through affidavits (depending on the country’s court procedures), and it is only then where all parties are required to show evidence.
“Therefore, the basic legal fact is […] the evidence in any claim, in any court, in any civilised country, is not filed together with the cause papers at the time of filing, and would not be revealed in the four corners of the document except as facts to specify the claim,” Haniff said.
He was responding to a statement by Special Affairs Department (Jasa) advisory panel member Tun Faisal Ismail Aziz yesterday.
Haniff added that the DOJ’s civil forfeiture suit is a quasi-criminal action, being neither fully a criminal action nor a civil action.
Many countries have such laws to keep criminal proceeds from being held by criminals or third parties that have obtained it, Haniff said.
In Malaysia, for example, he said the country has provisions for quasi-criminal actions under the Dangerous Drugs Act 1952, Banking and Financial Institutions Act 1989, and the Anti-Money Laundering and Anti-Terrorism Financing Act 2001.
These allow Malaysian authorities to freeze assets first. Once an investigation is completed, and after a successful conviction, those frozen assets would be seized.
“Therefore, an investigation is not necessarily completed before any property believed to be obtained using criminal proceeds would be frozen or confiscated in accordance with the laws of civilised countries,” he said.
Tun Faisal had said that there is no evidence that jewellery had been bought with 1MDB funds and given to MO1’s wife, and the allegation is just a “story” in a complaint that had been made to the DOJ.
That the DOJ did not list MO1’s wife jewellery as among the items to be seized in its list of assets under forfeiture also showed that DOJ itself was unsure of the truth of the complainant’s story, he wrote in a Facebook posting.
Najib and Rosmah should intervene
Haniff also challenged Prime Minister Najib Abdul Razak and his wife Rosmah Mansor to make an application to intervene in the DOJ's forfeiture suits.
He said there are clear legal avenues to challenge DOJ’s claims if they are untrue, and any denial without contesting the claims in court would merely be an empty talk.
“Parties affected by any statement in DOJ’s cause papers must take steps to clear their names through the legal processes that are already in place first, before insisting that it is baseless.
“To Najib’s propaganda arm, I urge you to advise Najib and Rosmah to take the mandatory and necessary legal steps, before making further wrong and dishonest statements to distort facts and confuse Malaysians who are concerned about the true facts of the DOJ’s seizures,” Haniff said.

He added that Malaysians must pressure the government to restore Malaysia's dignity by contesting the claim in US courts so that Najib's claims are believable.
While neither MO1 nor his wife was named by the DOJ, Minister in the Prime Minister's Department Abdul Rahman Dahlan said the lawsuit had implicated Prime Minister Najib Abdul Razak's wife Rosmah Mansor.
Rahman had last year also confirmed that MO1 was Najib. However, he said the fact that Najib was not named showed the prime minister was not a subject of investigations.
Najib and Rosmah had denied wrongdoing.- Mkini

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