Eric See-To
Published: Nov 28, 2024 2:24 PM
COMMENT | Bersih, Muda, and former deputy law minister Mohamed Hanipa Maidin have questioned the attorney-general pursuant to the granting of a discharge not amounting to acquittal (DNAA) to Najib Abdul Razak and Mohd Irwan Serigar Abdullah yesterday.
The Kuala Lumpur High Court allowed the defence teams' DNAA bid after the prosecution failed to submit relevant documents to the court and the defence lawyers despite more than six years having elapsed since the duo was charged in October 2018.
They are asking if the attorney-general has mishandled or botched the case.
In my opinion, they are asking the wrong question.
Consider this:
1. Najib had repeatedly made statements, including in the Dewan Rakyat, which went unanswered, that he had solved the problem of the missing 1MDB funds when the government signed a settlement agreement with the International Petroleum Investment Company (IPIC) in 2017.
He said every sen of the 1MDB money that went missing was after the funds were guaranteed or sent to the IPIC or its subsidiary Aabar Investments.
He had repeatedly called for the government of the day post-GE14 to release the IPIC settlement agreement to prove that 1MDB was claiming up to US$7 billion from IPIC to be repaid by Dec 30, 2020.
However, the then-finance minister Lim Guan Eng answered that they could not release the agreement as it would be sub judice.
Similar calls to successive governments had also gone unanswered.
2. Days after Najib and Irwan were charged, the then-Pakatan Harapan government used these charges as the reason to cancel the IPIC settlement agreement.
"The base of Malaysia's legal challenge in the High Court in London is that the consent award was procured by fraud or in a manner contrary to public policy," the then-attorney-general Tommy Thomas said in a statement.
He said Malaysia was obliged to pay US$5.78 billion to the IPIC and the bond trustee over five years under the 2017 award, but it will now seek relief from future obligations and also seek to recover the US$1.46 billion already paid.
Former attorney-general Tommy Thomas
"Fraud is an established ground to challenge the consent award for public policy reasons," Thomas said.
However, IPIC's reply to Thomas’ statement was surprising.
"There remains in place a legally binding settlement agreement that was agreed to by the arbitrating parties," Mubadala said in an emailed statement to Reuters.
It said 1MDB did not currently owe any debt to IPIC or Mubadala.
‘IPIC owed money to 1MDB’
Following IPIC's statement, Najib then issued a statement correcting Thomas, saying that it was the IPIC who owed money to 1MDB and not the other way around.
Eventually, on Feb 27, 2023, IPIC finally settled with 1MDB for US$1.8 billion ((RM8.06 billion then) - an amount that is higher than the RM6.6 billion described in Najib and Irwan's charges but lower than the up to US$7 billion claimed in the cancelled original IPIC settlement.
Nevertheless, the fact that the IPIC eventually settled with 1MDB proves that Najib's government was right to enter into a settlement agreement in 2017.
3. In August 2023, a 12-page document purportedly to be an internal memo of the Attorney-General’s Chambers dated Sept 10, 2019 (almost a year after Najib and Irwan were charged) was leaked and became viral.
The memo purportedly from Jamil Aripin, the then head of the prosecution team for the IPIC case addressed to Thomas and copied to the then-head of prosecution Manoj Kurup, said:
- based on their study of the investigation papers, statements by witnesses and the interviews, the entire IPIC prosecuting team (comprising five deputy public prosecutors and seven investigation officers) were unanimous in taking the stand that all six charges were non-starters as it did not meet the minimum requirements or threshold to be brought to court and to secure a prima facie case against Najib and Irwan.
- not a single witness statement out of the 136 witness statements was favourable to the prosecution team.
- all available evidence in the investigation papers did not support any of the existing charges for criminal breach of trust.
- the memo went into great legal detail on why each of the six charges could not stand
The memo ended with the recommendation:
“Based on the above reasons, we are of the considered view that based on the maximum evaluation of available evidence, there (sic) are grossly insufficient to prove not even a prima facie case for the 6 charges, let alone to secure a conviction beyond a reasonable doubt.”
A copy of the purported internal memo can be downloaded here.
Document’s authenticity
To date, none of the individuals named in the purported memo ever denied the document’s authenticity.
The then-attorney-general Idrus Harun also didn't deny the authenticity of the document but was reported to have said that they would investigate the leak.
When the honourable judge Muhammad Jamil Hussin for the IPIC case asked the prosecutors in court in September last year if the document was authentic, the prosecutor could only answer, "No comment".
Therefore, Bersih, Muda, and Hanipa may not be asking the most pertinent question by focusing on whether the AGC "botched" the IPIC case, which resulted in Najib and Irwan being granted a DNAA yesterday.
The three key questions that should be considered instead are:
1. Should the duo be charged in the first place?
2. If the case was unwarranted, should the government in 2018 have cancelled the original IPIC settlement agreement, which ultimately led to a lower settlement amount for Malaysia?
3. Should the government release the original settlement agreement to substantiate Najib’s claim that the 1MDB issue had already been resolved, but was later undermined by the Harapan government’s decision to cancel?
"Fraud is an established ground to challenge the consent award for public policy reasons," Thomas said.
However, IPIC's reply to Thomas’ statement was surprising.
"There remains in place a legally binding settlement agreement that was agreed to by the arbitrating parties," Mubadala said in an emailed statement to Reuters.
It said 1MDB did not currently owe any debt to IPIC or Mubadala.
‘IPIC owed money to 1MDB’
Following IPIC's statement, Najib then issued a statement correcting Thomas, saying that it was the IPIC who owed money to 1MDB and not the other way around.
Eventually, on Feb 27, 2023, IPIC finally settled with 1MDB for US$1.8 billion ((RM8.06 billion then) - an amount that is higher than the RM6.6 billion described in Najib and Irwan's charges but lower than the up to US$7 billion claimed in the cancelled original IPIC settlement.
Nevertheless, the fact that the IPIC eventually settled with 1MDB proves that Najib's government was right to enter into a settlement agreement in 2017.
3. In August 2023, a 12-page document purportedly to be an internal memo of the Attorney-General’s Chambers dated Sept 10, 2019 (almost a year after Najib and Irwan were charged) was leaked and became viral.
The memo purportedly from Jamil Aripin, the then head of the prosecution team for the IPIC case addressed to Thomas and copied to the then-head of prosecution Manoj Kurup, said:
- based on their study of the investigation papers, statements by witnesses and the interviews, the entire IPIC prosecuting team (comprising five deputy public prosecutors and seven investigation officers) were unanimous in taking the stand that all six charges were non-starters as it did not meet the minimum requirements or threshold to be brought to court and to secure a prima facie case against Najib and Irwan.
- not a single witness statement out of the 136 witness statements was favourable to the prosecution team.
- all available evidence in the investigation papers did not support any of the existing charges for criminal breach of trust.
- the memo went into great legal detail on why each of the six charges could not stand
The memo ended with the recommendation:
“Based on the above reasons, we are of the considered view that based on the maximum evaluation of available evidence, there (sic) are grossly insufficient to prove not even a prima facie case for the 6 charges, let alone to secure a conviction beyond a reasonable doubt.”
A copy of the purported internal memo can be downloaded here.
Document’s authenticity
To date, none of the individuals named in the purported memo ever denied the document’s authenticity.
The then-attorney-general Idrus Harun also didn't deny the authenticity of the document but was reported to have said that they would investigate the leak.
When the honourable judge Muhammad Jamil Hussin for the IPIC case asked the prosecutors in court in September last year if the document was authentic, the prosecutor could only answer, "No comment".
Therefore, Bersih, Muda, and Hanipa may not be asking the most pertinent question by focusing on whether the AGC "botched" the IPIC case, which resulted in Najib and Irwan being granted a DNAA yesterday.
The three key questions that should be considered instead are:
1. Should the duo be charged in the first place?
2. If the case was unwarranted, should the government in 2018 have cancelled the original IPIC settlement agreement, which ultimately led to a lower settlement amount for Malaysia?
3. Should the government release the original settlement agreement to substantiate Najib’s claim that the 1MDB issue had already been resolved, but was later undermined by the Harapan government’s decision to cancel?
ERIC SEE-TO is the former BN strategic deputy director during the Najib administration. He started writing using his real identity after deciding to shed his alter ego Lim Sian See following a debate with Economy Minister Rafizi Ramli.
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