Are the floodgates being opened for the other thieves to escape?

Riza Aziz - Photo: Alex Berliner/ABImages/Wikipedia

We cannot allow private arrangements to save political thieves from conviction and punishment, P Ramakrishnan writes.

Are we seeing the return to the old days when you can rob and get away with it? It looks as if the path is laid for the escape of other kleptocrats with the deal in Riza Aziz’s case.

Is this a forerunner of things to come?

A common thief who is caught for stealing, charged in court and while the trial is ongoing – will he be released without punishment if he agrees to return part of the stolen money? Will the deputy public prosecutor say, “You keep the rest and go free?”

That would be ridiculous! But that’s what has happened in Rizal’s case!

Anyone who commits theft has to be punished regardless of his station. But it doesn’t happen often.

The plea bargain that took place between the prosecution and the lawyers for movie producer Riza Abdul Aziz reminds me of my recent article “Justice: If you are nobody, you’re punished; if you are somebody, you’re tolerated!“

Why the need for a plea bargaining?

We wonder why there is a need for this plea bargaining in the midst of the ongoing trial when the prosecution has amassed massive evidence against the accused? The prosecution was – without doubt – on solid grounds.

They don’t need his cooperation to solve the crime and convict him. So why the need for him to be discharged conditionally without finding him guilty?

As a lay person, my understanding, as it is for thousands of others as well, is that when the prosecution doesn’t possess enough evidence to go for a conviction, sometimes it offers a plea bargain to a culprit to enhance its case against the other culprits. The criminal who cooperates becomes the prosecution or Crown witness and gives evidence against his fellow felons – which helps to secure a conviction.

But this prosecution witness doesn’t go scot-free. He is nonetheless punished, but his punishment will not be as harsh as that suffered by his fellow criminals. But he is punished all the same.

Sometimes, to avoid a prolonged trial, the prosecution may agree to charge him on a lesser crime if he pleads guilty. In such an instance, there is plea bargaining. But the criminal is all the same convicted under the lesser charge, found guilty and sentenced to serve a jail term.

In Riza’s case, what is so peculiar that his cooperation is so desperately required that he goes unpunished? Nay, in this instance, looking at the quantum he needs to purportedly pay back in the plea bargain, a quantum less than that recovered by the US Department of Justice (DoJ) after costs,  Riza is being rewarded, nullifying the ancient legal maxim that “no one should be allowed to benefit from his wrongdoing.” 

Given the evidence already gathered by the DoJ, the prosecution is already armed with such strong and solid evidence against him during the trial that there is no need for this plea bargaining. There is, allegedly, enough evidence to hang him – so to speak!

Was there ever any danger that the case would collapse without this arrangement with him? Were we in danger of losing our claim on the stolen money without this deal?

What are we actually getting from him? What assets are still in his possession? Isn’t it a fact that his assets had been taken over by the US DoJ and that once these assets are put up for sale and sold, the money would be automatically returned to the Malaysian government after the costs of recovery is deducted? That being the case, what other assets are still in his possession that he is now surrendering to us through this plea bargain?

Wasn’t he charged on five counts of money laundering involving a huge sum – $248m (RM1.1bn) linked to 1MDB funds? If convicted under any of the five counts, the penalty is a maximum RM5m fine or a maximum five-year jail term or both.

Why then are we going for a conditional settlement requiring him to return only $107.3m (RM465.3m), less than half of the sum involved? He isn’t surrendering the entire sum – only about 40% of the stolen money! What is the big deal! It is only peanuts!

He is let free without a fine or/and jail sentence. How can that be? If his case had gone to trial, would he have got off scot-free?

Clearly, the court’s scrutiny and jurisdiction have been scuttled by not going for a trial. This is not a judicial outcome but an administrative arrangement by the Attorney General’s Chambers to provide an escape route.

We have every right to be angry, disappointed and frustrated by this deliberate deal to free someone of significance who has had his hands soiled.

With the ancient legal maxim that “no wrongdoer should be allowed to benefit from his wrongdoing” in mind, the attorney general must justify his action instead of claiming that he went along with the view of his predecessor and pin the blame on Tommy Thomas. This is totally unacceptable! Does it mean he accepts and recommends the plea bargaining as the only way out in this case?

The layman in me asks the following questions:

• Why isn’t Riza punished for his crime?
• Is a deal necessary for the return of the assets already seized by the DoJ?  Wouldn’t it be automatically returned to the Malaysian government?
• Since the floodgates are already open, do we strike similar deals with other criminals who steal, allowing them to benefit from their wrongdoings?
• Can a thief who was caught and charged in court opt for plea bargaining? Can he tell the deputy public prosecutor, “I’ll return half the loot” and expect the DPP to tell him, “That’s great. You keep the rest and you can go free!”

I hope that the many legal luminaries out there will provide some answers!

Why the need for mystery and secrecy?

Why is there so much mystery in this case? How come those who are responsible as sources of information are not named? Why are they kept nameless and faceless in this episode? Why is the statement released in the name of the organisation and not in the name of an officer in charge?

The statement from the Malaysian Anti-Corruption Commission has bearing to this.

“The MACC has been informed that it is a conditional release where the prosecution reserves the right to reinstate the charges and prosecute the accused if there is no satisfactory completion of the agreement.”

This raises many questions:

• Why is the informant of this news being kept as a faceless, nameless person? We are made to understand, “The MACC has been informed…”
• Who informed the MACC of this conditional release?
• Why is there a need to protect the identity of this person? Would the person be in any danger if he or she was named?

“As a result, the Malaysian government is expected to recover overseas assets involved in the offence, which is estimated at US$107.3 million,” said the MACC.

This invites questions as well:

• Who is the person who released this statement on behalf of the MACC?
• Normally, statements are released in the name of a person in authority on behalf of an organisation. Here it is merely reported “said the MACC”. Why?
• Haven’t these assets already been seized by the DoJ?  Ultimately, the DoJ will return the money to the Malaysian government once these assets are sold. So what are we recovering from Riza when these assets are no longer with him?

This same mystery is repeated by the attorney general in his statement as well:

“I have been advised that my predecessor Tommy Thomas, after perusing the said letter of representation (by Riza’s solicitors), via a minute dated Nov. 19, 2019, to senior deputy public prosecutor Gopal Sri Ram, sought the views of the latter, and further stated that in light of the proposals outlined above, he is prepared to consider the representation.

“I have been further advised that Sri Ram, in consultation with the then chief commissioner of MACC, Latheefa Koya, suggested that the proposals laid down in the letter of representation be accepted by MACC. I have also been advised that Thomas had agreed to the suggestion in principle.

The attorney general does not disclose who advised him and whether the briefing was based on any documentary evidence on the various stages of the plea bargain. Was it based on hearsay or, worse, hearsay upon hearsay?

Isn’t that very strange? Don’t we, the public, have a right to know? Why are we not taken into confidence? The attorney general should disclose their names so that they are forced to confirm or deny his dubious claim.

There is yet another mystery that has to be addressed as well:

“Earlier today, ad-hoc prosecutor Gopal Sri Ram, who read out the application to discharge Riza, did not disclose the terms of the settlement.”

The money stolen is public money. Don’t we have a right to know the terms of settlement reached so that we can know whether any special dispensation had been given to Riza? How is he going to settle it and how long is he given to honour this arrangement? Why is this kept secret? Is national security threatened if full disclosure is made?

What is the need to implicate Tommy Thomas?

On 14 May 2020, it was disclosed:

“The plea bargain between the prosecution and movie producer Riza Abdul Aziz was achieved during Tommy Thomas’ stint as attorney-general.” (Revealed by the MACC)

Again, we don’t know who the spokesman for the MACC is! Without adducing any written evidence or instructions, it is claimed that the plea bargain “was achieved during Tommy Thomas’ stint as attorney-general”. Where is the credibility to this claim? What evidence supports this claim?

Would Tommy Thomas have given a verbal consent? That is most unlikely!

True enough, on 16 May 2020, Tommy Thomas categorically denied the allegation:

“I resigned  two-and-a-half months ago and up to that point, there was no agreement to drop charges against Riza. So, it is wholly untrue and a fabrication to say that I had agreed to the decision.

“I am terribly disappointed that the MACC had to make this false statement.”

The next day, MACC chief commissioner Azam Baki reportedly told Free Malaysia Today that a deputy public prosecutor involved in the case had told him that Thomas agreed to the plea bargain.

The ad-hoc public prosecutor is Gopal Sri Ram, and he owes us an explanation whether a deputy public prosecutor indeed informed Azam Baki that Tommy Thomas agreed to this plea bargain. He has to produce irrefutable evidence that Tommy Thomas had indeed agreed to the plea bargain in order to remain credible and give credence to Azam Baki’s claim.

Without producing any supporting evidence that Tommy Thomas had agreed to this deal, Azam Baki is very dismissive of Tommy Thomas’ denial, “Never mind if the former AG wants to deny, that’s up to him. We stand by our statement,” he was quoted as saying.

This is nothing but sheer arrogance! If you don’t want to believe Tommy Thomas’ denial, why should we believe your story? Thomas is an upright gentleman of long standing who is respected by the legal community and thinking Malaysians. Who are you, Azam Baki? We don’t know you!

Is this a proper, civil response to a denial? Isn’t it his responsibility to convince the public that there was an agreement involving Tommy Thomas? How do we know what is the truth? Isn’t Azam Baki under any moral obligation to establish the truth?

Tommy Thomas had, in responding to Azam Baki, vehemently denied his involvement in the deal. Very furiously, he had said that what was claimed was “absolutely shocking”, “is clearly a false lie”, “it defies logic”, it was a fiction without any factual foundation, “it defies credibility”. Without mincing words, he bluntly said, “This is a lie.”

In the light of Tommy Thomas’ angry denial, the Attorney General, Idrus Harun, the MACC chief commissioner, Azam Baki, the ad-hoc prosecutor, Gopal Sri Ram, and the former MACC chief, Latheefa Koya – all of them need to clarify how and why Tommy Thomas’ name was dragged into this scandalous and incredulous deal to implicate a man of character and integrity very mischievously. Is it possible that Tommy Thomas was dragged in to lend credibility to their nefarious arrangement? Malaysians need an explanation.

Tommy Thomas resigned on 28 February 2020.

On 12 March, the prosecution asked for more time to allow the new attorney general to decide on Riza’s representation.

And on 2 April, Riza’s counsel Hariharan Singh was quoted as saying he was still awaiting a reply from the Attorney General’s Chambers to his client’s representation.

Clearly, no decision had been made between 28 February and 2 April on the representation made by Riza’s lawyers on 18 November 2019.

So exactly who made this decision agreeing to the terms and conditions of settlement, and when was this decision taken? Malaysians demand to know these answers. Shouldn’t the police cause an investigation into the paper trail?

Thomas also cited media reports showing that the prosecution had on 12 March, before Sessions Court judge Azman Ahmad, asked for more time to allow the Attorney General’s Chambers to decide on Riza’s representation.

It is absolutely clear that no conclusive or definite decision had been made up to 12 March. Otherwise, why ask for more time for the newly appointed attorney general to decide on Riza’s representation?

Claiming that he would have lost all credibility in the eyes of the people if he had approved the order, Tommy Thomas asserted, “I would have betrayed the trust the prime minister and the Pakatan Harapan government had reposed in me.”

Thomas said he was satisfied that the prosecution had a strong case to establish the elements of the offence against Riza. “The documentary trail was substantial and highly credible,” he said.

“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.”

He concluded, “Hence, it is a sweetheart deal for Riza but terrible for Malaysia.”

The Attorney General’s Chambers doesn’t want to be seen as condoning an arrangement that reflects badly on its integrity – so the need to fix the blame on Tommy Thomas.

But Malaysians know that this plot will not stick because, unlike others, Tommy Thomas’ reputation is untainted and untarnished. His character is not besmirched by any scandal. He still stands upright in spite of attempts to sully his character.

Why isn’t the attorney general taking responsibility?

At the time the plea bargain was accepted, the Attorney General, Idrus Harun, was in charge of the Attorney General’s Chambers. It was accepted because he gave the green light. He should, therefore, accept responsibility for the deal.

He was under no obligation to accept any decision made by Tommy Thomas – which the latter denies strenuously – and he was in a position to override that decision. Tommy Thomas was not in charge on 14 May, when the deal was concluded in court, and he would have carried no weight to insist that it be implemented.

The simple fact is that the current attorney general was the man in charge and it was his decision that was accepted and implemented. So, stop pointing fingers elsewhere for this rotten deal that was not a good deal for the country.

Why is the government getting involved?

Out of the blue, on 18 May 2020, the Prime Minister’s Office releases a statement stating, “The prime minister reiterated his stand against interfering with any decision made by the AGC and the judiciary in regards to high profile crime cases in the country.”

The Prime Minister’s Office has clarified that Prime Minister Muhyiddin Yassin was not involved in the decision on Riza Aziz’s plea bargain on 1MDB-related money-laundering charges.

Again, it is a nameless and faceless person speaking from the Prime Minister’s Office. I wonder why it is not possible for any clarification to be made in the name of a person in authority in any department. Why the need for anonymity? Is it because people of calibre are not appointed to these positions who can confidently defend their stand on any issue if challenged?

Now back to the issue at hand. Did anybody ever suggest or imply that the PM’s hand was involved in the deal? I have not read anything to this effect. The very fact that he finds the need to clear himself of any implication of his involvement would suggest, perhaps, there are already rumours whispering that his unseen hand was pulling the strings. We don’t know what the truth is.

But his clarification at this juncture was totally unnecessary! Could it be possible that those in the Prime Minister’s Office have nothing to do and so they are compelled to do something – anything!

What will be the future judicial trend?

Will this be the trend for future cases involving the kleptocrats? This is a cunning ploy to avoid the scrutiny of the courts by going into plea bargaining.

Without conviction, without being fined or sentenced to a jail term, all the culprits will most likely go free, keeping part of the loot. If this trend continues, Najib, I suppose, will most likely go free, followed by Rosmah and the rest.

This is unprecedented! This will be unacceptable! This is no way to treat the kleptocrats who robbed the nation blind. They must be punished for their sin. They must be taken to task for their crime.

Need for royal commission of inquiry

We cannot allow this disturbing trend to continue unabated. This will destroy our confidence in the judicial process. Justice must not be seen as siding the rich and the powerful,

There is an urgent need to set up a royal commission of inquiry to unravel the mystery surrounding the plea bargain and to get to the bottom of the truth. Why was the deal necessary? How did the country benefit from it?

We call for the setting up of this royal commission to salvage our dignity and integrity.

What can we do?

My fellow Malaysians, we cannot allow these private arrangements to save the political thieves and robbers from conviction and punishment. This process will make the judiciary an irrelevant and meaningless institution serving no purpose.

If accused persons, in spite of the massive evidence against them, walk out of the court scot-free, the time has arrived for citizens of concern and conviction, people who abhor the mocking of the judicial system, those who truly care for this beloved country, to rise up and be part of the struggle to displace the backdoor government in the democratic way.

We must ensure all those MPs who helped to steal the duly elected government are defeated in GE15. They must be punished. All those who betrayed our trust and desecrated the democratic tradition must be politically killed.

We cannot condone their treachery and remain silent.

Let’s be motivated by Albert Einstein, who said,” If I were to remain silent, I’d be guilty of complicity.” - ALIRAN