The failure or inability to provide such reasons for the Riza’s discharge not amounting to an acquittal must be explained, the eight former Malaysian Bar presidents (listed at the bottom) write.
We thirst for information and seek answers, especially in respect of matters of public interest and importance. The recent withdrawal of the charges and discontinuance of the prosecution against Riza Aziz for serious criminal offences is one such matter.
Riza Aziz was facing five charges under Section 4(1) of the Anti-Money Laundering, Anti-Terrorism Financing Act 2001 (Act 613). It was alleged that he had received monies totalling US$248m linked to 1MDB between April 2011 and December 2012. He pleaded not guilty to the charges. If convicted of any of the five charges, he could have been imprisoned for a maximum of five years, or liable for a fine not exceeding RM5m, or both.
The decision of the attorney general to agree to a discharge not amounting to an acquittal in the prosecution of Riza Aziz for alleged money laundering offences is perplexing.
The information provided thus far gives the impression that there are no good reasons for the withdrawal of the charges and discontinuance of the prosecution.
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We are left wondering why the prosecution is seemingly deflecting the responsibility for the decision taken and why Malaysia appears to have been short-changed. To leave these questions unanswered is unsatisfactory.
It appears from the media release issued by the attorney general on 17 May that the decision to bring about the discharge not amounting to an acquittal – which resulted from a discontinuance of the prosecution for all five charges – was not made because the attorney general apprehended concerns over the strength of the prosecution’s case, or the sustainability of any of the charges, against Riza Aziz.
There is nothing to readily suggest that the case against Riza Aziz would fail. We are also reminded of the controversial tape recordings disclosed by the Malaysian Anti-Corruption Commission, allegedly of the former Prime Minister, Najib Razak, and step father of Riza Aziz, requesting a member of a Middle Eastern royal family to assist by concocting an agreement to cover up the alleged 1MDB monies remitted to Riza Aziz.
Instead, the attorney general’s decision was based on an agreement between the prosecution and Riza Aziz, for him to disgorge assets amounting to US$108 m and cash of approximately US$14m, both of which are allegedly linked to 1MDB, and to surrender the “Metropolis” poster and pay a compound under Section 92 of Act 613. It has been reported that the compound payable is RM500,000.00.
Riza Aziz was prosecuted for offences under Act 613 and was facing five charges. We are mindful that the wording of Section 92(1) to (4) suggests or envisages that a compound may be applicable and may be offered by the “competent authority or relevant enforcement agency”, albeit with the consent of the public prosecutor, only before a person has been prosecuted.
After charges are laid, Section 92 is no longer applicable, and only the attorney general qua public prosecutor has carriage of the matter. The attorney general should look into rescinding the settlement and reinstituting the charges against Riza Aziz on the grounds that the agreement could well be unlawful and in contravention of the provisions of Section 92.
It is clear that the disgorgement, surrender and the compound pursuant to the agreement would not result in a full recovery of the US$248m under the five charges against him.
Indeed, the disgorged assets totalling US$108m is only about 43% of the US$248m that Riza Aziz is alleged to have laundered.
The repatriation of ill-gotten gains simpliciter and payment of a relatively insignificant compound by an accused person, from the proceeds from serious criminal offences, in exchange for the withdrawal of an ongoing prosecution against him, is unusual and difficult to sustain in principle.
Without more, it lends itself to the perception that an accused person can be exonerated of serious crimes if he is willing to pay back part of the illicit proceeds of his alleged crimes.
It is indefensible and outrageous to allow an accused person to buy himself out of a serious criminal offence. It is an abuse of process that would bring the administration of justice into disrepute.
It is important to note that one should not conflate the recovery of assets through forfeiture proceedings, with the prosecution for criminal offences. The two are distinct legal processes that hold the accused to different requirements of accountability for the crimes, and ought to be pursued separately and cumulatively against the alleged wrongdoer.
In Riza Aziz’s case, both proceedings were afoot until the fateful decision to beget the discharge not amounting to an acquittal in the money-laundering case.
It also appears that the disgorged assets amounting to US$108m constitute the assets already seized by the US Department of Justice as the subject matter of forfeiture proceedings against Riza Aziz.
Thus, the seized assets are destined to be returned in due course to Malaysia, without any need for an agreement with Riza Aziz. This has called into question the efficacy of or legitimacy for the agreement with Riza Aziz. It appears to be superfluous, as nothing substantively new has been offered or brought to the table.
It is unclear if the agreement with Riza Aziz also includes his providing full cooperation and actionable evidence as to the dealings, transactions and money trail which could lead to a successful prosecution in the 1MDB case, as well as giving evidence as a witness for the prosecution.
If so, then this raises further questions as to whether the prosecution has obtained in hand such evidence before the withdrawal of the five charges, and why the prosecution thinks he would make a reliable witness given his familial relationship with an accused person in the other 1MDB-related prosecution.
In the media release by the attorney general, he disclosed that he was advised that his predecessor, Tommy Thomas, had agreed “in principle” to a representation made by Riza Aziz for the disgorgement of assets and payment of compound under Section 92 of Act 613. It begs the question who had advised or informed him of this.
Tommy Thomas has denied making any decision to enter into an agreement and in effect explained that he was only agreeable in principle to consider the representation. This is a far cry from saying that Tommy Thomas had previously agreed to the deal. Tommy Thomas resigned on 28 February, and it appears that the present decision was made thereafter.
It is also apparent that the media release has not disclosed any satisfactory answers as to why the prosecution decided to make a deal of this nature. It provides no information as to why the prosecution was withdrawn, other than that it was done to get some money back.
Article 145(3) of the Federal Constitution confers the attorney general, as the public prosecutor, with exclusive power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for an offence.
In discharging this constitutional power, the attorney general is entitled to consult, take advice and weigh all relevant factors, including antecedent facts. However, the ultimate decision under Article 145 (3) is that of the incumbent attorney general.
As the ultimate decision maker, the attorney general is accountable for the exercise of the constitutional power and discretion to discontinue the prosecution – because the discretion and power are exercised on behalf of the people, in the interest of justice and the public good.
The office of the attorney general, especially qua the public prosecutor, is an office of public trust. It is only in dictatorial, totalitarian or authoritarian regimes that the exercise of such discretion and power is exempted from public scrutiny.
The decision of the attorney general must therefore be supported by valid, rational and cogent reasons. The media release by the attorney general does not provide such reasons, and it does not therefore satisfy the requirements of accountability.
The agreement thus far revealed is simplistic. A question that begs an answer is whether there is more to the agreement than what has been disclosed. There is a perception that there may be more.
In this regard, the timing of the agreement with Riza Aziz has given rise to speculation. It occurred during the currency of the uncertainties with regard to proceedings in Parliament, and it preceded the signing of the previously elusive memorandum of understanding for the fledgling Perikatan National political pact.
It is therefore imperative, in the interest of maintaining public confidence, that clear, rational and cogent reasons be promptly provided.
The people require, deserve and are entitled to clear, cogent and intelligent reasons and answers for the performance of constitutional functions and duties, as well as the exercise of constitutional powers and discretion.
The failure or inability to provide such reasons and answers must themselves be explained. There should never be an impression given that one may buy oneself out of a prosecution without penal accountability for a serious criminal offence.
“It is not only what we do, but also what we do not do, for which we are accountable” – Jean-Baptiste Poquelin
Zainur Zakaria, Kuthubul Zaman, Yeo Yang Poh, Ambiga Sreenevasan, Ragunath Kesavan, Lim Chee Wee, Christopher Leong and Steven Thiru are former Malaysian Bar presidents