The cabinet has not been misled over the foreign exchange losses made by Bank Negara Malaysia (BNM) during the 1990s, and there is no need to take any action on any individual or institution, says lawyer Mohd Haniff Khatri Abdulla for Dr Mahathir Mohamad.
Haniff said in order to show that the cabinet had been misled, the RCI should call a member of the cabinet to testify that he or she had been deceived over the losses.
The record showed, that one of the ministers then is the present Prime Minister Najib Abdul Razak who was then the defence minister.
“Najib as the defence minister should come to the RCI to bravely testify the purported allegation that he was supposedly misled by the then finance minister (Anwar Ibrahim) and subject him to examination.
“The RCI's failure (to call Najib) provides no material for the RCI to come-up with the conclusion that the cabinet had been misled, pertaining to the BNM forex losses for 1992 and 1994,” he said.
He also asserts that various measures were done to prevent a recurrence and those were in place since 1994.
Haniff said this in his written submission to the Royal Commission of Inquiry, following its conclusion on Tuesday.
Today is the deadline for parties to submit their written submissions.
In quoting Mahathir's testimony, the 24th witness in the RCI, it was clear the purpose of this RCI is not to study the trade of foreign exchange by BNM in 1992 to 1994 but to divert the attention of the people.
“In my knowledge, all issues regarding it (the losses) has been handled by BNM, in introducing check and balance after that with the formation of the Bank Negara Malaysia Act 2009 and other regulations related to it,” the former premier said in his testimony.
As a result of this, Haniff said the third and fourth terms of reference in the RCI over whether the cabinet or Parliament had been misled should be answered in the negative and that there is no necessity to take any action against any individual or institution pertaining to this issue.
Throughout the RCI, various witnesses including those from BNM had testified that it had autonomy on its operations.
The lawyer also pointed out that the legal framework of the Central Bank Ordinance 1958 (CBO), which prohibited the finance minister, and by extension, the prime minister and the government from interfering in the issues as to the details of the accounts and accounting of BNM’s Audited Reports.
“On the other hand, had the finance minister, and by extension, the prime minister and the government have done so, they would be guilty in law for such unlawful interference for abuse of power,” he emphasised.
Losses cannot be placed at RM31.5 billion.
Haniff also disputed testimonies that the amount of losses suffered amounted to RM31.5 billion.
This follows Mahathir who in his testimony also said the actual losses cannot be ascertained at the time and that the 2007 report is questionable.
“I believe that as the actual losses suffered by BNM is undetermined, except for the figure stated in the BNM Audited Report at that time, which was presented to the cabinet meeting and Parliament, hence Anwar Ibrahim (the finance minister) did not hide any information that is given by BNM in the cabinet meeting that time,” he said.
The lawyer reiterated the RCI is in no position to make any determination of the actual losses owing to the disputes between BNM and the auditor-general of the actual losses.
“Furthermore, regretfully, since it has been 25 years ago that this issue arose, and both these important witnesses namely the late Jaafar Hussein, the then BNM governor and Auditor General Ishak Tadin is not medically capable to give testimony.
The lawyer said that as Mohamed Nor Yakcop, had voluntarily and personally admitted being the person responsible for the forex trading losses when he listed several events such as “Plaza Accord”, strengthening of the yen, the Louvre Accord or what is referred to as “The Black Wednesday” as factors that contributed to the losses.
Other witnesses such as former governors Zeti Akhtar Aziz, Ahmad Mohd Don, former deputy governor Lin See Yin, former finance minister Anwar Ibrahim and Daim Zainuddin and Mahathir, he said, had given corroborative evidence over this, that resulted in the losses that appeared in 1992 and 1994.
“Hence, it is our humble submission that in light of these testimonies, and in the absence of any challenge from the conducting officers to these testimonies, it must give rise for this RCI to conclude that as far as the evidence and materials presented before it, there is no proof that BNM was carrying out its forex activities unlawfully,” he said.
Mala-fide proceeding
He reiterated what the former premier had stressed that the RCI proceeding was done with bad intention or mala fide.
Haniff said throughout Mahathir's testimony he had established irrefutable facts which were unchallenged by the conducting officer and the RCI members.
“The underlying reason and purpose for this government under Prime Minister Najib Abdul Razak, to set up this RCI was his dishonest intention acting in bad faith to attempt to discredit Mahathir and other critics who had continuously and consistently raised questions on the scandals surrounding Najib especially the 1MDB scandal.
“The setting up of this RCI at the behest of Najib's government is to divert the attention of the public from the tainted image of his government before the next general election,” he said.
Haniff said all evidence with regard to mala fide as presented by Mahathir having not been challenged, we want the RCI to submit a further recommendation, namely the request by the current Malaysian government for the Yang di Pertuan Agong to set-up the RCI is tainted with mala fide.
“The terms of reference should immediately be revoked and retracted without the need for determination. Any unwarranted remarks or insinuation against Mahathir in the total absence of any evidence, thereto, would tantamount to mala fide in furtherance of the intent and wish by Najib,” he said.
He had earlier in his submission listed down the actions made during the RCI which he felt is against the rules of natural justice and this includes their application to recuse RCI chairperson Mohd Sidek Hassan and Saw Choo Boon, where both were members of the task force, and also the RCI's decision that there is no need to declassify certain confidential BNM documents as another example. - Mkini
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