“Some circumstantial evidence is very strong, as when you find a trout in the milk.”
- Henry David Thoreau, diary entry.
When US attorney-general Philander Knox was asked by then-president Franklin D Roosevelt to provide a legal justification for his seizure of the Panama Canal, Knox’s ironic response was: “Oh, Mr President, do not let so great an achievement suffer from any taint of legality.”
I never imagined I would ever be engrossed in reading a 100-page legal document, as I was in reading High Court judge Azimah Omar’s judgment on former attorney-general Mohamed Apandi Ali’s (above) defamation suit against Iskandar Puteri MP Lim Kit Siang for having asked for an explanation on “why he aided and abetted in the 1MDB scandal”.
My fascination with the judgment was not in any new revelation about 1MDB, the cash cow that was milked for billions by various individuals. We have had a wealth of evidence of ill-gotten wealth from all over the globe, revealing a subterranean conduit of billions, millions, flowing here, surfacing there, at the source 1MDB.
What hooked me into reading the judgment was the learned judge’s language.
I have spent all my life immersed in words, from the magical wonder/mysteries of my first Beano and Dandy, and my first “story-book”, an Indian edition of a few Aesop’s Fables, a dirty grey cover with a small illustration of the sour grapes fox, bought for 50 cents from the Indian newsagent in the lane next to the Stylo barber shop in Brickfields, to an eventual Masters in English Literature, and my subsequent careers as writer, journalist, lecturer, book-shop owner.
My impression of legalese is that it is circumlocutory, with phrasing that still carries a musty Victorian era smell, no thanks to the generations of Malaysian lawyers who had to swot their set of Halsburys and the set of Forms and Precedents.
There is nothing circumlocutory in Azimah’s judgment and some ringing phrases that skirted (in my reading) the meaning of “judicious” (all power to the judge).
1MDB scandal cover-up
For a start, the scandal is the “greatest and vile corruption and thievery of the modern times”. Villains!
There was no dissent from Lim when the High Court understood his reference to Apandi as suggesting that by his actions and omissions, the attorney-general had exonerated the perpetrator of the 1MDB scandal, and covered up the scandal.
So Lim had to prove the factual basis for his words.
Well, the High Court found the facts in Apandi’s testimony, his “perplexing” (a judicious feigned ignorance; the judge also used the synonym “baffling”) and “magnanimous” (full-blown sarcasm) decision to clear former prime minister Najib Abdul Razak.
There is Apandi’s ready acceptance of the ‘donation’ by an unnamed member of Saudi royalty, weighed against the fact that RM42 million was already known to have been transferred from SRC’s account into Najib’s personal account.
The High Court judge said Apandi’s propounding the “fantastical narrative of an unproven decision” was the most telling evidence.
“Fantastical narrative” - a flashback to my first hardcover book, a collection of Arabian Nights and Scheherazade’s stories, a reward from my father for being the top student in school in Standard Four. Ali Baba and the Forty Thieves “Open Sesame” and chests full of gold coins and jewellery.
The High Court underlines it by noting Apandi’s contradictions in his testimony, his “evasiveness and outright untruth”. Tsk, tsk, tsk!
The judge noted that Apandi, in a press conference, had claimed that the RM2.6 billion paid into Najib’s personal account was a donation from the Saudi royal family and that the MACC had met and recorded statements from the donor who confirmed the monies were donated to Najib.
The High Court said this was “untruthful” (synonym: lie), noting that Apandi admitted the delegation did not meet nor speak to the alleged donor.
“Why would the attorney-general bend the truth about meeting and recording a statement by the alleged donor?
“Why would the attorney general declare to the world that his delegation has met the donor (and obtained confirmation from the donor) while it was well within his knowledge that his delegation did not even speak or meet with the ‘fabled’ donor?” the judge asked. Why, indeed! An attorney general bending the truth? More tsk, tsk, tsk.
Character flaws
Pile on top of that is Apandi’s “astoundingly indifferent, evasive, deceptive and lackadaisical attitude in pursuing the truth behind the fantastical donation by the unnamed Saudi royalty”. What a mini-thesaurus of adjectives describing character flaws.
The court said his testimony “kept on evolving and whimsically shifting” and that such “fickleness” called into question his credibility as a witness. Is this a former attorney-general we are talking about?
The High Court also said it was “bizarre” for Apandi to not at least know the name of the Saudi prince who allegedly gave the donation.
“Why would the attorney general hastily NFA/KUS (no further action/kemas untuk simpan) or close the investigation knowing full well that the Riyadh mission was an utter failure and that his delegation had nothing to show to prove the truth of the fantastical donation?
“Why would the attorney general insist on adopting the donation narrative when his own internal task force and even the MACC recommends at the very least, for further investigation, and in fact, recommended charges against Najib?” More whys.
And another: Why refuse to accept legal assistance from the Swiss attorney-general or the US Department of Justice to trace monies that had been siphoned out of Malaysia?
With all these questions and no credible answers, the High Court concluded that Lim had justification for his words.
Lim also proved qualified privilege, as the court noted that Lim had an interest, duty, legal, social or moral obligation to publish the statement.
“When the 1MDB scandal involves criminalities and illegalities, social and economic repercussions to the nation’s economy, and the morality of the nation’s top leaders and agencies, it is well within the rakyat’s (not just the defendant as an MP) interest and duty, to voice out their dismay and enmity, especially when all avenues of query and complaint have already been exhausted (only for their uproar to fall on deaf ears),” the judge said.
A bit circumlocutory, but on this subject, I don’t mind.
Read the full judgment. - Mkini
THOR KAH HOONG is a veteran journalist.
The views expressed here are those of the author/contributor and do not necessarily represent the views of MMKtT.
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