‘Whistleblower’ Behind AG Tommy Thomas Condo Raid At Risk

Condo raid for ‘smoking gun’ backfired, failed spectacularly in court on public perception game, but the damage has been done in ‘victimising’ Najib and Rosmah!

If we read senior lawyer Shafee Abdullah correctly in the video link before the media, former Prime Minister Najib Abdul Razak, and his wife Rosmah, were “victims” of a callous perception game created by whistleblower/s in getting the duo “out of the way”, by hook or by crook, probably for political expediency purposes.

The damage has been done in ‘victimising’ Najib and Rosmah.

Briefly, there are also allegedly missing items and cash from the condo raid. If true, these can be traced. Also, action can be taken against the source/s of the allegations in court against Najib and Rosmah.

It’s not clear whether the Inland Revenue Board (IRB) would go after Najib and Rosmah on the contents of the condo raid. MACC (Malaysian Anti Corruption Commission) and Bank Negara (central bank) have delegated prosecutorial power on civil action, under money laundering laws, on the condo raid.

Former Attorney General (AG) Tommy Thomas, in taking the condo raid to court, may have succeeded in bringing the monies and items seized under media scrutiny for “public perception” purposes at the risk of the whistleblower/s committing “criminal defamation”. In defamation, under Malaysia’s antiquated law, the truth may be no defence in court. In short, if push comes to shove, it’s unlikely that those who commit “criminal defamation” will win in court.

Civil Action

Thomas could have easily filed civil action, under money laundering laws, on the condo raid. The assets can be cited as proof of money laundering and been frozen, seized and forfeited by the state. A criminal suit would only be filed if the civil action is challenged.

Instead, the AG claimed in court that the contents in the condo raid came from money originating from 1MDB, the company probably set up for political donation purposes, but owned by the Malaysian Ministry of Finance. There’s no law in Malaysia on political donation, no law against it, and no law discouraging it. Under the Income Tax Act 1967, taxes are due on all income above RM4K per month and on a political donation of RM5K and above. The donors have to be named.

Money laundering has been defined in international law — applicable in national law being read as compliant — as having assets far in excess of what can be legitimately accumulated in a lifetime. In law, the assets are proof of money laundering and can be frozen, seized and forfeited by the state.

Generally, as shown by the Dept of Justice (DoJ) on 1MDB “offences” committed in the US, civil action cases on money laundering are invariably settled out of court. The “claimant”, i.e. the US government on behalf of the Malaysian government, gets 40 per cent of the proceeds — based on precedent — without prejudice on the part of the errant party. The DoJ levies fees on the 40 per cent before paying the balance to the Malaysian government. The errant party keeps 60 per cent of the “ill-gotten” gains. Income taxes due remain a separate matter and may be levied in the US or Malaysia subject to the Double Taxation Agreement. US law states that taxes must be paid in its jurisdiction even if paid in Malaysia.

The US government does not allow funds to be repatriated to a government allegedly responsible for the loss.

Smoking Gun

Thomas, based on senior lawyer Shafee’s media briefing, hoped that the condo raid would be the proverbial “smoking gun” on money allegedly originating from 1MDB.

Thomas could not have been that naive. He should have known, based on the fact that no proof could be produced in court, that the condo raid was an anti-climax in more ways than one.

That explains why the AG fell back on the RM42m SRC International case as “the easiest to prove” and, for backup purposes, other 1MDB-related cases were brought against Najib.

The public perception game continues.

If the non-existent solar project in Sarawak was pinned on Rosmah, as proof of “deriving personal benefits” based on bribery and corruption, it was probably because no other case could be brought against her as “Najib’s partner in crime”.

Life Sentence

It can be argued that the other cases against Najib, the law against retrospective application notwithstanding, shouldn’t add to the 12-year jail sentence against him. He has also been fined RM210m which must be paid before he’s released from jail, or in default, there would be further jail. Again, it’s not clear whether further jail would run concurrently with the 12-year jail sentence or consecutively. The maximum jail time in Malaysia, including for life, is ten years. The court can rule on how the 10 years is calculated.

We can remind ourselves, lest it be forgotten, that Najib need serve only eight years of the 12-year sentence. One-third of the sentence would be discounted for good behaviour, weekends and public holidays.

If he gets a delayed Pardon, he must serve at least half the eight years before being released.

It must be stressed that the numerous cases against Najib are unprecedented in Malaysia, Commonwealth jurisdictions and indeed the world. Having said that, punishment in jurisprudence cannot be disproportionate. Abuse of power, conflict of interest and criminal breach of trust, for example, cannot be punished over and over again in new and different ways and angles against the same person in court.

Punishment in law isn’t about the accused but an educational experience for the people. It’s not the done thing if the public are “over-educated” on punishment.

Parliament

In retrospect, since the jurisdictional and constitutional issues were not visited in Najib’s cases, Parliament should debate whether “acts in office” should be in court. If not, the Constitutional Court should declare the law on the matter. Parliament can make, pass and create laws. However, only the court can declare them by interpreting the intention of Parliament and the intention of the framers of the Constitution.

The Constitutional Court can declare that the Basic Features Doctrine (BFD), which if unwritten permeates the Constitution, covers “acts in office” i.e. the government stands indemnified, has immunity and implicit Pardon based on a line being drawn in law.

It must be stressed that the jurisdictional and constitutional issues in Najib cases were never placed before the court. The court can only look at what’s before it. – NMH

About the writer: Longtime Borneo watcher Joe Fernandez keeps a keen eye on Malaysia as a legal scholar (jurist). He was formerly the Chief Editor of Sabah Times. He is not to be mistaken for a namesake previously with Daily Express. References to his blog articles can be found here.

The points expressed in this article are that of the writer and do not necessarily reflect the stand of the New Malaysia Herald.

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