Monday, January 23, 2017

Philippine : Do not revive the Death Penalty [ADPAN]

Philippine : Do not revive the Death Penalty

ADPAN strongly urges all members of the Philippine House of Representative and Senate to reject the reinstatement of the death penalty and uphold the rights to life as enshrined in the Constitution.

Reinstating the death penalty would violate Philippine’s international legal obligations, in particular, the Second Optional Protocol to the International Covenant on Civil and Political Rights, which the country has ratified.

The reasons behind the reinstatement of the death penalty are ill founded and purely a political one. Numerous studies and analysis have concluded that death penalty does not deter crime. Indeed, there has been no existing reliable evidence to prove otherwise.

ADPAN also wishes to highlight that the UN Office on Drugs and Crime has consistently called for the abolishment of death penalty on drug related offences, citing that such irreversible and oppressive laws are not an effective prevention and solution and it is not supported by international drug conventions.

It is also to be noted that on 11th January 2017, Deputy Prime Minister of Thailand Mr Wisanu Krea-ngarm had said that Thailand would eventually do away with death penalty by trying to amend the law to find alternative to the capital punishment, taking into consideration the global trend on abolition.

The Malaysian government has also announced its intention to abolish the mandatory death penalty on drug offences while a comprehensive study is now underway that may also see the total abolition of the death penalty.

Philippine, if successfully revive the death penalty, would not only move backward in its human rights standards and obligations, and would also not be in line with the progress made by its neighboring countries towards the eventual abolition of death penalty.

ADPAN states its disappointment that this Bill to reinstate the death penalty is being rushed on 16 January 2017 when the House of Representative resumes, and urges all members of the House of Representative and Senate to consider it carefully and reject it, respecting and upholding the right to life.

Ngeow Chow Ying
For and on behalf of the
ADPAN Executive Committee
15 January 2017



The Anti-Death Penalty Asia Network (ADPAN) is an independent cross-regional network committed to working for an end to the death penalty across the Asia Pacific region. ADPAN is made up of NGOs, organizations, civil society groups, lawyers and individual members, not linked to any political party, religion or government and campaigns against the death penalty. It currently has members in 28 countries: Afghanistan, Australia, Bangladesh, China, Denmark, France, Hong Kong, India, Indonesia, Italy, Japan, South Korea, Malaysia, Mongolia, Nepal, New Zealand, Pakistan, Papua New Guinea, Philippines, Singapore, Spain, Sri Lanka, Taiwan, Thailand, Tonga, Vietnam, UK, USA.

Saturday, January 21, 2017

Custodial death: Police behaviour ‘reprehensible and unconstitutional’

Custodial death: Police behaviour ‘reprehensible and unconstitutional’

by Prema Devaraj -
0
Activists remembering those who died in custody - Photo credit: http://ousel.blogspot.com/
Prema Devaraj wonders how effective efforts have been in halting custodial deaths or bringing about accountability in custodial deaths. 

By all accounts, it was an avoidable death. It is just that neither the IO (investigating officer) nor the police personnel bothered to take the necessary steps to send the deceased to hospital. If this is not behaviour which is reprehensible and unconstitutional, then I do not know what is…

Strong words from Justice S Nantha Balan in reference to the negligence of certain police officers in not providing timely medical assistance to Mr P Chandran, which resulted in his death four years ago when he was in the police lock-up in Dang Wangi.

In Justice S Nantha Balan’s written grounds for judgment, Mr Chandran’s death was avoidable, and the following were highlighted in media reports. The police personnel involved:
That Mr Chandran’s death was only noticed 12 hours after he died in the lock-up makes one wonder about the work ethic of the police officers involved and makes a mockery of the use of CCTV in lock-ups to monitor situations.

The Lock-Up Rules 1953 state the roles and responsibilities of police officers in charge of detainees in the lock-up. In this case, Justice Nantha Balan reportedly said he found hardly any or any credible evidence to show that the Lock-Up Rules 1953 were complied with.

Media reports on the 86-page judgment presented in court point to the lack of respect the police officers involved had for either Mr Chandran’s life or the laws pertaining to the rights of detainees in lock-ups.
Deaths in police custody have long been a shame factor for the police. Estimates from statistics released by the police over the years suggest at least one death in police custody per month.

Rogue officers who are responsible for such deaths and the lack of accountability over these deaths continue to smear the name of PDRM and erode the public’s trust in and respect for the police, who are meant to ensure the safety of the public, including those in custody.

In awarding RM357, 000 in damages to the family, Justice S Nantha Balan has acknowledged that a wrong doing has occurred and has attempted to rectify the situation through compensation, not that it can bring Mr Chandran back.

However Justice S Nantha Balan noted that no action had been taken against any of the police officers arising out of Mr Chandran’s death despite Sessions Judge Ahmad Bache, who sat as coroner, ruling in January 2014 that Mr Chandran’s death could have been averted had the police performed their duties and responsibilities.

How is it possible that no criminal charges were laid against the police officers involved?

Mr Chandran’s family have lived not only with the loss of Mr Chandran but also with the knowledge that those responsible for his death have not been charged or prosecuted with any crime.

This is not the first time something like this has happened in our country. We live at a time in our country’s history when making people accountable for their actions seems very difficult to do and integrity is sorely lacking.

And yet, it is these very principles of accountability and integrity that are needed to pull us out of the abyss of wrongdoing and inaction our nation has been dragged into.

Perhaps we may see these principles emerge as the MACC casts its nets over corrupt civil servants and pledges to eliminate graft by 2020.

However we might all believe in the process and the pledge better if the elephant in the room (ie the 1MDB scandal) is not spared diligent investigation and rigorous prosecution.

In the same vein, there must also be accountability in PDRM, especially over custodial deaths. We have witnessed the proposal and rejection of the Independent Police Complaints and Misconduct Commission (IPCMC) over 10 years ago, the setting up of the Enforcement Agency Integrity Commission (EAIC) and the coroner’s court, and more recently the introduction of the Self-Monitoring Analytics Reporting Technology (Smart) system to monitor inmates.

In 2015, there was the campaign #ACT4CAT to urge the government to accede to the United Nations Convention against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (UNCAT). The government was also urged to take the necessary legislative, policy and administrative measures to ensure the effective prevention of any practice that could lead to torture or other cruel, inhuman or degrading treatment or punishment.

In 2016, the Bar Council renewed its call to the Malaysian government to establish the IPCMC. Suhakam, the Human Rights Commission of Malaysia, in marking Human Rights Day in December 2016 noted the issue of custodial deaths among other issues and called on the government to accede to the UNCAT.

One can only wonder how effective these efforts have been in halting custodial deaths or bringing about accountability in custodial deaths. The release of comprehensive statistics on custodial deaths is crucial in evaluating the situation and monitoring progress, if any, in this area.

For now, Justice S Nantha Balan’s use of the words “behaviour which is reprehensible and unconstitutional” rings true not just for the police officers responsible for the death of Mr Chandran – but for all those who, although having the power to stop such deaths and hand over rogue police officers for prosecution, continue to look the other way and perpetuate a culture of silence and denial over the issue of custodial deaths. - ALIRAN Website

Monday, January 16, 2017

MADPET Urges USA To Immediately Release 2 Malaysians Being Detained Without Trial For Over 10 Years In Guantanamo Bay Detention Centre



Media Statement – 16/1/2017

MADPET Urges USA To Immediately Release 2 Malaysians Being Detained Without Trial For Over 10 Years In Guantanamo Bay Detention Centre

MADPET (Malaysians Against Death Penalty and Torture) is shocked to find out that 2 Malaysians have been subjected to detention without trial for allegedly over 10 years in the United States of America’s infamous detention facility in Guantanamo  Bay in Cuba.(FMT News,8/1/2017). Mohd Farik Amin and Mohammed Nazir Lep  have been allegedly detained for about 10 years and 4 months, for allegedly being involved in the 2003 bombing of the JW Marriott Hotel in Jakarta, which killed 12 and injured 150 others.

Article 10 of the United Nations Declaration of Human Rights clearly states that, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.". Everyone have the right to be presumed innocent until proved guilty according to law.

It must be pointed out that these 2 Malaysians were amongst the Guantanamo detainees who had been recommended for prosecution by the Guantánamo Review Task Force as of January 2010. But sadly, after almost 7 years, they have yet to be granted their fundamental right to a fair trial.

It is said that the Guantanamo Bay detention facility is controlled by the US military, but not actually part of the country and therefore not subject to US laws. There have been allegations of torture, and also deaths in custody at this detention facility. President Obama, when he became President promised that he will close down this facility, but alas it still remains open.

MADPET is of the opinion that all persons currently detained without trial should be immediately and unconditionally released. It is unconscionable and unjust for persons to be detained without trial, and in the case of these 2  Malaysians, it has been more than 10 years.

Malaysia should have been protesting the detention without trial of any Malaysian, who have been denied their right to fair trial. The failure to come to the aid and assistance is a failure on the part of the government.

Malaysia should certainly not support the justification forwarded by foreign nations to detain without trial, and/or to torture Malaysians. As such, it is most sad that the Malaysian police seems to be now justifying the 10 year plus detention without trial of Malaysians by the US.

MADPET is also disturbed by statements allegedly made by Malaysian police counter-terrorism chief, Ayob Khan Mydin Pitchay, which maybe an attempt to convince the Malaysian public the reason for the detention without trial, and maybe also the failure of the Malaysian government to come to the assistance of these Malaysians overseas – victims of denial of right to a fair trial.

Amongst others, Ayob Khan was quoted saying, ““They are high-ranking members with a great deal of influence. There is a high possibility they might return to their militant ways and join other groups, especially the Islamic State,”.  It may be of interest to know whether the Malaysian police’s view is based on their own investigation, or simply an acceptance of what the US detaining authority told them. Are there even attempts by the Indonesian government to get these 2 Malaysians to be charged and tried in Indonesian courts for their alleged crimes related to the bombing in Jakarta?

The police officer’s, public prosecutor’s and/or the government’s belief in the guilt or innocence is irrelevant because no one is guilty unless tried and convicted after a fair trial.

If they have broken laws in Malaysia, then they must forthwith be brought back, charged in court and tried. If they have not broken any Malaysian laws, then, of course, Malaysia will have no justification to arrest or detain them on return to Malaysia. Continued detention without trial in Malaysia is not acceptable.

The said media report indicated that  ‘…Ayob said that if the two were transferred back to Malaysia, they would be placed in the de-radicalisation programme, which has been proven to be effective…’. There also was a similar suggestion made earlier ‘…last September, deputy prime minister Ahmad Zahid Hamidi said Nazir might be transferred to Malaysia but he would have to continue the de-radicalisation programme in jail…’

MADPET is extremely concerned about what is meant by this ‘de-radicalisation programme in jail’, and hope that Malaysia is not proposing detention under trial under POCA(Prevention of Crime Act), POTA(Prevention of Terrorism Act) or some other Detention Without Trial law.

This is unacceptable and MADPET reiterates that Malaysia must abolish all detention without trial laws, and immediately release all those currently being detained and/or being subjected to restrictions by virtue of these draconian POCA and/or POTA.

Therefore, MADPET

Calls on the United States of America(USA) to immediately release Mohd Farik Amin, Mohammed Nazir Lep,any other Malaysians and others currently being detained without trial in Guantanamo Bay Detention facility and other detention facilities in or under the control of the USA.

Call on the Malaysian government to do the needful to ensure that human rights of Malaysians, including the right to fair trial, of those currently being held in Guantanamo Bay Detention facility and detention facilities overseas are always respected and protected;

Reiterate our call on Malaysia to immediately repeal the Prevention Of Crime Act 1959(POCA), Prevention Of Terrorism Act 2015(POTA)    any such Detention Without Trial laws; and

Reiterate our call for the immediate and unconditional release of all persons currently being detained/restricted under Prevention Of Crime Act 1959(POCA) or any such Detention Without Trial laws.

Charles Hector
For and on behalf of
MADPET (Malaysians Against Death Penalty and Torture)

*****

Will Obama send Malaysia terror accused home?

FMT Reporters
 | January 8, 2017 
Malaysia doesn't recognise the US court's authority on them and the Americans have their concerns with the law here so it'll be difficult, say sources.

camp-delta 

PETALING JAYA: Two Malaysian militants held in Guantanamo Bay, the United States’ infamous military prison in Cuba, are unlikely to be among the 22 detainees transferred back to their home or other countries, reported a local portal.

According to The Star Online, intelligence sources said the “long and difficult” transfer process meant it was unlikely that Mohd Farik Amin aka Yazid Zubair, and Mohammed Nazir Lep aka Bashir Lap, would be sent to Malaysia.

Farik and Nazir reportedly had a role to play in the 2003 bombing of the JW Marriott Hotel in Jakarta, which killed 12 and injured 150 others.

Before this, Daily Mail reported that outgoing US President Barrack Obama was planning to transfer 22 detainees before Jan 20, the date Donald Trump will be sworn in.

The targets for release were reportedly those who have been detained for more than 10 years — and both Farik and Nazir have been there for 10 years and four months.

But intelligence sources The Star Online spoke to ruled out the two being transferred back to Malaysia.

“It is a long and difficult process. Both countries must agree on the method of transfer and a suitable location, as well as duration to hold these prisoners in Malaysia,” the source told The Star.

It is understood that the US government was seeking to charge and sentence Farik and Nazir in a US military court but have the remainder of that prison term served in Malaysia.

Another source said the problem with this was that Malaysia didn’t recognise the military court’s authority and that the US didn’t agree with the Prevention of Crime Act, which Malaysia may use to detain the two.

Malaysian police counter-terrorism chief, Ayob Khan Mydin Pitchay said Farik and Nazir posed a high level of danger, given their involvement in international militant organisations, al-Qaeda and Jemaah Islamiah.

He said Farik was an explosives expert, while Nazir specialised in hijacking American interests in the region.

“They are high-ranking members with a great deal of influence. There is a high possibility they might return to their militant ways and join other groups, especially the Islamic State,” said Ayob, who is Bukit Aman Special Branch Counter Terrorism Division head.

In recent times, a number of Malaysians have left the country to join Islamic State in Iraq and Syria, with some even becoming suicide bombers.

Authorities in Malaysia have voiced concerns about returning militants attempting such activities here.
Ayob said that if the two were transferred back to Malaysia, they would be placed in the de-radicalisation programme, which has been proven to be effective.

Last September, deputy prime minister Ahmad Zahid Hamidi said Nazir might be transferred to Malaysia but he would have to continue the de-radicalisation programme in jail. - FMT News, 8/1/2017

****


Citizens of Malaysia

Two citizens of Malaysia have been held at Guantánamo. The detainees include Zubair (Mohd Farik Bin Amin) and Lillie (Mohammed Nazir Bin Lep).
NameCitizenshipStatus2010 Task Force Determination
Lillie (Mohammed Nazir Bin Lep) Malaysia Held Recommended for prosecution
Zubair (Mohd Farik Bin Amin) Malaysia Held Recommended for prosecution




Source:-

Malaysia digesa berusaha bawa pulang 2 tahanan Guantanamo (FMT)

See related post, with additional resources - 

MADPET Urges USA To Immediately Release 2 Malaysians Being Detained Without Trial For Over 10 Years In Guantanamo Bay Detention Centre

Malaysia digesa berusaha bawa pulang 2 tahanan Guantanamo

FMT Reporters
 | January 16, 2017 
Mohd Farik Amin dan Mohammed Nazir Lep ditahan lebih 10 tahun tanpa bicara.

camp-delta


PETALING JAYA: Sebuah pertubuhan tempatan yang menentang penggunaan seksaan ke atas tahanan menggesa Malaysia berusaha membawa pulang 2 warga Malaysia yang ditahan tanpa bicara lebih 10 tahun di pusat tahanan Teluk Guantanamo.

Kumpulan Rakyat Malaysia Bantah Hukuman Bunuh dan Seksaan (Madpet) berkata Mohd Farik Amin @ Yazid Zubair dan Mohammed Nazir Lep @ Bashir Lap, yang dituduh sebagai dalang serangan bom 2003 ke atas Hotel JW Marriott di Jakarta, perlu diberikan peluang membuktikan diri mereka tidak bersalah menerusi perbicaraan mahkamah, atau dibebaskan.

Teluk Guantanamo dijadikan pusat penempatan tahanan mewakili beberapa negara yang dituduh Washington sebagai terlibat dalam serangan keganasan, dan tidak terikat dengan undang-undang Amerika Syarikat disebabkan ia terletak di Cuba.

Ia diselubungi kontroversi berikutan pendedahan tahanan diseksa. Presiden Barack Obama berjanji menutup pusat tahanan itu, tetapi sehingga kini ia masih dibuka walaupun hanya beberapa hari Obama akan melepaskan jawatannya.

Sebelum ini, dilaporkan Farik dan Nazir bukan antara kira-kira 20 orang tahanan Guantanamo yang bakal dipindahkan ke penjara AS menjelang hari terakhir Obama pada 20 Januari.
Pengarah Bahagian Counter Terrorism Cawangan Khas Bukit Aman, Datuk Ayob Khan Mydin Pitchay dilaporkan berkata kedua-dua mereka berbahaya, dan memberi amaran pasangan itu boleh mengulangi aktiviti keganasan mereka sekiranya dibebaskan.

“Adakah pendirian polis Malaysia ini berdasarkan siasatan mereka sendiri atau penerimaan apa yang diberitahu kepada mereka oleh pihak berkuasa AS?” soal pengerusi Madpet, Charles Hector dalam kenyataannya.

Beliau mempertikaikan sama ada wujud usaha kerajaan Indonesia membawa mereka ke muka pengadilan atas tuduhan terlibat dalam serangan bom di Jakarta.

Charles berkata kerajaan Malaysia juga perlu memperjelaskan tuduhan ke atas mereka, dan sekiranya tidak ada bukti, mereka perlu dibebaskan. - FMT News, 16/1/2017


Kenyataan Penuh/Full Statement

Media Statement – 16/1/2017


MADPET Urges USA To Immediately Release 2 Malaysians Being Detained Without Trial For Over 10 Years In Guantanamo Bay Detention Centre


MADPET (Malaysians Against Death Penalty and Torture) is shocked to find out that 2 Malaysians have been subjected to detention without trial for allegedly over 10 years in the United States of America’s infamous detention facility in Guantanamo  Bay in Cuba.(FMT News,8/1/2017). Mohd Farik Amin and Mohammed Nazir Lep  have been allegedly detained for about 10 years and 4 months, for allegedly being involved in the 2003 bombing of the JW Marriott Hotel in Jakarta, which killed 12 and injured 150 others.


Article 10 of the United Nations Declaration of Human Rights clearly states that, "Everyone is entitled in full equality to a fair and public hearing by an independent and impartial tribunal, in the determination of his rights and obligations and of any criminal charge against him.". Everyone have the right to be presumed innocent until proved guilty according to law.


It must be pointed out that these 2 Malaysians were amongst the Guantanamo detainees who had been recommended for prosecution by the Guantánamo Review Task Force as of January 2010. But sadly, after almost 7 years, they have yet to be granted their fundamental right to a fair trial.


It is said that the Guantanamo Bay detention facility is controlled by the US military, but not actually part of the country and therefore not subject to US laws. There have been allegations of torture, and also deaths in custody at this detention facility. President Obama, when he became President promised that he will close down this facility, but alas it still remains open.


MADPET is of the opinion that all persons currently detained without trial should be immediately and unconditionally released. It is unconscionable and unjust for persons to be detained without trial, and in the case of these 2  Malaysians, it has been more than 10 years.


Malaysia should have been protesting the detention without trial of any Malaysian, who have been denied their right to fair trial. The failure to come to the aid and assistance is a failure on the part of the government.


Malaysia should certainly not support the justification forwarded by foreign nations to detain without trial, and/or to torture Malaysians. As such, it is most sad that the Malaysian police seems to be now justifying the 10 year plus detention without trial of Malaysians by the US.


MADPET is also disturbed by statements allegedly made by Malaysian police counter-terrorism chief, Ayob Khan Mydin Pitchay, which maybe an attempt to convince the Malaysian public the reason for the detention without trial, and maybe also the failure of the Malaysian government to come to the assistance of these Malaysians overseas – victims of denial of right to a fair trial.


Amongst others, Ayob Khan was quoted saying, ““They are high-ranking members with a great deal of influence. There is a high possibility they might return to their militant ways and join other groups, especially the Islamic State,”.  It may be of interest to know whether the Malaysian police’s view is based on their own investigation, or simply an acceptance of what the US detaining authority told them. Are there even attempts by the Indonesian government to get these 2 Malaysians to be charged and tried in Indonesian courts for their alleged crimes related to the bombing in Jakarta?


The police officer’s, public prosecutor’s and/or the government’s belief in the guilt or innocence is irrelevant because no one is guilty unless tried and convicted after a fair trial.


If they have broken laws in Malaysia, then they must forthwith be brought back, charged in court and tried. If they have not broken any Malaysian laws, then, of course, Malaysia will have no justification to arrest or detain them on return to Malaysia. Continued detention without trial in Malaysia is not acceptable.


The said media report indicated that  ‘…Ayob said that if the two were transferred back to Malaysia, they would be placed in the de-radicalisation programme, which has been proven to be effective…’. There also was a similar suggestion made earlier ‘…last September, deputy prime minister Ahmad Zahid Hamidi said Nazir might be transferred to Malaysia but he would have to continue the de-radicalisation programme in jail…’


MADPET is extremely concerned about what is meant by this ‘de-radicalisation programme in jail’, and hope that Malaysia is not proposing detention under trial under POCA(Prevention of Crime Act), POTA(Prevention of Terrorism Act) or some other Detention Without Trial law.


This is unacceptable and MADPET reiterates that Malaysia must abolish all detention without trial laws, and immediately release all those currently being detained and/or being subjected to restrictions by virtue of these draconian POCA and/or POTA.


Therefore, MADPET


Calls on the United States of America(USA) to immediately release Mohd Farik Amin, Mohammed Nazir Lep,any other Malaysians and others currently being detained without trial in Guantanamo Bay Detention facility and other detention facilities in or under the control of the USA.


Call on the Malaysian government to do the needful to ensure that human rights of Malaysians, including the right to fair trial, of those currently being held in Guantanamo Bay Detention facility and detention facilities overseas are always respected and protected;


Reiterate our call on Malaysia to immediately repeal the Prevention Of Crime Act 1959(POCA), Prevention Of Terrorism Act 2015(POTA)    any such Detention Without Trial laws; and


Reiterate our call for the immediate and unconditional release of all persons currently being detained/restricted under Prevention Of Crime Act 1959(POCA) or any such Detention Without Trial laws.



Charles Hector

For and on behalf of

MADPET (Malaysians Against Death Penalty and Torture)

Bar perturbed about deteriorating state of atfairs?

Press Release | Openness, Transparency and Accountability are Indispensable to Eradicate Corruption




Friday, 13 January 2017 11:16am
ImageThe Malaysian Bar is very perturbed by recent reports that the Malaysian Anti-Corruption Commission (“MACC”)’s special operations division is being downsized[1], six of its senior officers are being transferred,[2] and its director Bahri Mohamad Zin has taken optional retirement, reportedly due to his unhappiness over the alleged inaction in respect of investigations into SRC International Sdn Bhd, a former subsidiary of 1MDB.[3]  The division reportedly handled high-profile cases relating to 1Malaysia Development Berhad (“1MDB”) and Federal Land Development Authority (“FELDA”).

These developments are disquieting because they reinforce the public perception that although one-and-a-half years have passed since it was revealed that funds of about USD700 million (approximately MYR2.7 billion) were transferred between private banks, offshore companies and funds linked to 1MDB, and then deposited into the personal accounts of the Prime Minister in AmIslamic Bank Berhad,[4] the authorities are reluctant or unwilling to get to the bottom of the serious allegations of financial impropriety concerning 1MDB, and bring action against those guilty of any wrongdoing.

This is in stark contrast to the developments in at least 11 countries — Australia, British Virgin Islands, Hong Kong, Luxembourg, Saudi Arabia, Seychelles, Singapore, Switzerland, United Arab Emirates, United States of America, and Venezuela — where there have been investigations, measures imposed on financial institutions, criminal prosecutions and convictions, and proceedings for forfeiture of assets.

These actions raise serious questions regarding the investigations that are apparently being conducted in our own jurisdiction, and expose the lack of transparency regarding the findings.  It is indeed unsettling that no one has yet been prosecuted in Malaysia for any of the allegations

The Auditor General[5] and the Public Accounts Committee of Parliament were tasked with enquiring into the allegations of serious financial impropriety concerning 1MDB.  It is inexplicable that the Auditor General’s report has been classified as an “official secret” under the Official Secrets Act 1972 and is thereby prohibited from public disclosure,[6] particularly in light of repeated assurances by the Prime Minister that the report would be made public.[7]  This purported classification of the Auditor General’s report is being challenged in court.[8]   

The Public Accounts Committee’s report, which was made public, unequivocally calls on law enforcement agencies to carry out further investigations on Datuk Shahrol Azral Ibrahim Halmi[9] — the then-Chief Executive Officer of 1MDB — and others from the 1MDB management who are implicated.  

To this end, the police have completed the first phase of investigations, according to news reports.[10] The Inspector General of Police had said that the investigations would involve interviewing persons overseas and would require the mutual assistance of law enforcement agencies in those foreign countries.  There has been little or no subsequent information on the purportedly ongoing police investigations.  

It has also been reported that our Attorney General has refused to accede to a request from the Office of the Attorney General of Switzerland for mutual assistance — notwithstanding earlier assurances by both the Prime Minister and the Attorney General that Malaysia would cooperate with investigations by both the United States and Swiss authorities.[11]   

This is a troubling development that does not bode well for our commitment — as a State Party to the United Nations Convention against Corruption[12] — to assist other States Parties to investigate and prosecute crime and detain suspected criminals.

Further, there appears to be an attempt to deny or restrict the flow of information to Malaysian citizens on matters concerning the allegations made against 1MDB.  On 17 October 2016, the Speaker of the Dewan Rakyat reportedly decided that Ministers need not answer questions in Parliament in relation to the complaint filed by the United States Department of Justice,[13] citing the sub judice rule.[14]  The complaint is “to forfeit assets involved in and traceable to an international conspiracy to launder money misappropriated from 1Malaysia Development Berhad (“1MDB”)”.[15]  Malaysians are surely entitled to full disclosure of all available information pertaining to this undoubtedly weighty public interest matter.

It is difficult to see how proceedings in the United States could be influenced by proceedings in the Malaysian Parliament.  Moreover, our High Court recently decided that, as a matter of general principle, “debates on important public interest issues should not be stifled or be readily sacrificed on the altar of sub judice.”[16] Thus, the sub judice rule must not be used as a convenient cloak to conceal relevant information concerning the Department of Justice’s serious allegations

It is alarming that the attitude of our authorities towards these grave allegations appears to be one of indifference, which has fuelled widespread concerns of complicity with the wrongdoers.

We have witnessed the finding of guilt by the Sessions Court for charges under the Official Secrets Act 1972 for the unauthorised possession of page 98 of the Auditor General’s report, and for exposing the content of the report at a media conference at Parliament.[17]  This is despite recurrent assurances that the Official Secrets Act 1972 was not meant to cover up wrongdoing.[18] 

This series of events is troubling, as it portrays a government that continues to operate in an environment in which freedom of information is denied, transparency of governance is eschewed, and accountability to the public is shirked.  Such are the hallmarks of a mindset mired in the past, where governments purport to decide what is good for the people to know.  This degree of  condescension is antithetical to the development of a mature democracy where the government serves — rather than rules — the people.

We should be mindful of the words of prominent Malaysian economist Jomo Kwame Sundaram, who pointed to a deficit of confidence resulting from the 1MDB scandal: “What is of concern is that over the last one-and-a-half years or so, the ringgit has been steadily declining. . . . There are many other factors behind it, including a loss of confidence in the government as more and more revelations are made about 1MDB.”[19]  The call for transparency and accountability in Malaysia should not be regarded as merely a pious platitude, but a call to protect our economic interests as well. 

The Malaysian Bar calls for a new paradigm of open, transparent, and accountable governance, to eradicate corruption and affirm the rule of law.  We would do well to remember the words of Justice Louis Brandeis who said, “If the broad light of day could be let in upon men’s actions, it would purify them as the sun disinfects.”[20] The scandal engulfing 1MDB must be resolved promptly and its wrongdoers prosecuted to the fullest extent of the law, to restore confidence in the administration of justice. 


Steven Thiru
President
Malaysian Bar

13 January 2017


[1] “MACC division that probed SRC allegedly being downsized”, Malaysiakini, 30 December 2016.

[2] “Six MACC officers involved in SRC probe transferred”, Malaysiakini, 31 December 2016.

[3] “MACC denies Bahri resigned due to SRC International”, Free Malaysia Today, 3 January 2016.

[4] (a) “Malaysian Anticorruption Body to Look Into Flow of Money to Najib”, The Wall Street Journal, 3 July 2015;

(b) “Malaysia Orders Freeze of Accounts Tied to Probe of Alleged Transfers to Prime Minister Najib”, The Wall Street Journal, 7 July 2015; and


[5] “1MDB audit begins”, The Sun Daily, 10 March 2015.

[6] “
1MDB audit report ‘secret’ until tabled in Parliament
”, Free Malaysia Today, 7 March 2016.

[7] “
Najib: Auditor-General will present full report on 1MDB
”, Free Malaysia Today, 10 July 2015.

[8] The Malaysian Bar is aware that this is the subject matter of a pending judicial review action by Selangor Menteri Besar (Chief Minister) Dato’ Seri Mohamed Azmin Ali in the High Court.


[10] (a) “
Special task force formed to investigate 1MDB: IGP
”, The Sun Daily, 14 April 2016; 

(b) “
IGP: 1MDB probe progressing, foreign interviews starting soon
”, Malay Mail Online, 21 July 2016; 

(c) “
IGP says in talks with AGC over 1MDB probe results
”, Malay Mail Online, 19 August 2016; and 

(b) “
Malaysia will cooperate with ‘lawful investigations’ of 1MDB, Najib’s office says
”, CNBC, 20 July 2016; and


[12] Malaysia signed the Convention on 9 December 2003, and ratified it on 24 September 2008. Switzerland signed it on 10 December 2003, and ratified it on 24 September 2009.  The Convention entered into force on 14 December 2005.


[14] “
Pandikar: Subjudice to discuss DOJ lawsuit against 1MDB
”, The Sun Daily, 17 October 2016.

[15] DOJ civil suit, para 5.

[16] Khairul Azwan Harun v Mohd Rafizi Ramli [2016] 6 CLJ 49, at para [33].

[17] YB Rafizi Ramli, the Member of Parliament for Pandan, was sentenced to 18 months’ jail for each offence, to be served concurrently.  The Sessions Court granted a stay pending disposal of his appeal to the High Court.



[20] Letter, Louis D Brandeis to Alice Goldmark (26 February 1891), in Louis D Brandeis, Letters of Louis D. Brandeis Volume I, 1870-1907, edited by Melvin I Urofsky and David W Levy (1971), p100.