The Scorpene scandal and the long arm of the law

byAndrew Khoo

 (Andrew Khoo is a practising advocate and solicitor)

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WHEN it comes to an issue like corruption, nations have long since accepted that it cannot be combated single-handedly.  A significant milestone in cooperation was when the General Assembly of the United Nations (UNGA) in New York passed the United Nations Convention against Corruption (UNCAC) on 31 Oct 2003.

Shortly after, Malaysia signed the UNCAC on 9 Dec 2003.  The UNCAC came into force on 14 Dec 2005. We then ratified it on 24 Sept 2008.

As a party to the UNCAC, how well do our government ministers understand Malaysia’s obligations under this international treaty and local laws on international cooperation on criminal matters?

 Defence Minister Datuk Seri Ahmad Zahid Hamidi’s recent snubbing of the inquiry by a French court into the Scorpene submarines scandal suggest ignorance, at the very least.

Scorpène Class Malaysian Navy submarine "Tun Razak" in the shipyard of Navantia-Cartagena (Spain) few days prior to its delivery.

How UNCAC works

Under the UNCAC, state parties agree to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. State parties are bound to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court and to extradite offenders. 

There is a provision whereby state parties that do not have extradition treaties with each other may use their common membership of the UNCAC as the basis for any extradition request. They are also required to undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.

Another over-arching trend in the international fight against transboundary issues is universal jurisdiction. A country can bring to trial and prosecute in that country, those accused of having committed a crime in another country. 

An area relatively new to Malaysia, we are only beginning to adopt universal jurisdiction through recent amendments to Section 4 of the Penal Code. This expands the scope of extraterritorial offences to include damage to property belonging to, or operated, or controlled, not just by a Malaysian federal or state government, but also to a Malaysian company or individual located outside Malaysia.

 This addresses our lack of laws to prosecute offences such as the hijacking of a Malaysian privately-owned (but foreign-flagged) ship by Somali pirates in international waters.

Ignorance or lack of political will?

Zahid Hamidi 

Bearing this in mind, Ahmad Zahid’s response to the possibility of being subpoenaed to appear in a French court to answer questions about the Scorpene affair is surprising for a number of reasons. France is also a signatory to the UNCAC, having signed it on 9 Dec 2003, and ratifying it on 11 July 2005.

The investigation by the French courts into allegations of transboundary corruption in the purchase of two Scorpene submarines by Malaysia would be precisely the kind of issue that UNCAC and universal jurisdiction are intended to address. By ratifying the treaty, Malaysia has signified to the world our willingness to submit to an international framework of cooperation in this regard. 

The Defence Minister’s comments, then, seem totally out of line with our international obligations.

Ahmad Zahid reportedly said, “Why should I appear?  I am not a witness!  If I appear, who will pay for my expenses?  I don’t want to use my money and the government’s money.”

In so doing, he clearly revealed his lack of familiarity with the Mutual Assistance in Criminal Matters Act 2002.  Part II of this Act deals with requests to Malaysia by foreign governments. In particular, Section 27 of the Act deals with requests for attendance of a particular person in another country to give evidence or assist in a criminal matter there.  

Malaysia’s Attorney-General can be requested by foreign authorities to arrange for the person to attend such proceedings. Section 19 specifically requires the Attorney-General to confirm that “allowances” and “arrangements for security and accommodation for the person” are to be made by the requesting foreign authorities.

So really, Ahmad Zahid need not worry about spending his own money or that of the Malaysian Government. France would pick up the bill, merci beaucoup.

Ahmad Zahid’s own ignorance aside, Malaysia’s attitude towards the Scorpene probe is also an issue of political will. 

Even though France is not a “prescribed foreign State” pursuant to Section 17 of the Act, Section 18 of the Act allows the Attorney-General to give special direction in writing for the Act to apply to that state. There is room for ad-hoc cooperation with France, if the Attorney-General recommends it and if the minister in charge of law agrees.

International perception

Malaysia could still refuse to entertain a request from France and would have grounds to do so in Section 20 of the Act.  These include:

• Section 20(1)(g): the facts constituting the offence to which the request relates does not indicate an offence of sufficient gravity;
• Section 20(1)(h): the thing requested for is of insufficient importance to the investigation or could reasonably be obtained by other means;
• Section 20(1)(i): the provision of the assistance would affect the sovereignty, security, public order or other essential public interest of Malaysia.

However, Malaysia should be cautious of how a refusal would be perceived by the international community in such a high-profile case. Care must be taken not to give a wrong impression.

No doubt, the Act contains complex provisions which include the voluntariness of a witness to travel to another country to assist in a criminal probe. The details of the Act’s provisions are beyond the scope of this article but suffice to say, the Minister of Defence should not have been so quick and glib in his reaction. 

Provisions do exist in Malaysian law to send him for an all-expenses-paid trip to Paris.  He should seek legal advice. 

Had he done so, he might have not been so glib again with his latest reaction — “Who are they to issue a warrant of arrest? We are not subjected to French laws.”

‘Red notice’ option

 

There is still the possibility that France could request countries, with which it has a mutual assistance in criminal matters agreement, to detain Ahmad Zahid and deliver him to Paris. 

This could happen should Ahmad Zahid travel to any such country or to any country which is a member of the European Convention on Mutual Assistance in Criminal Matters. No doubt he would then have to fight it, just as, under different circumstances, Julian Assange is currently fighting his extradition from the United Kingdom to Sweden.

It is open for the French courts, if Ahmad Zahid refuses to answer a subpoena, to upgrade that subpoena to an international warrant of arrest, and to seek the assistance of Interpol to effect it.  

This is known as a “red notice”.  Whether the French would actually do that is a tale for another time.