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!
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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?
READ
MORE: Interview with Tommy Thomas
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?
READ
MORE: Pas, attorney general should not
‘merepek’ about confidence vote
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.
READ
MORE: Attorney general to answer
questions in Parliament?
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 Razak, I suppose, will most likely go free, followed by Rosmah Mansor 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.”
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