Monday, 10 August 2015

Malaysia-[MBar] Press Release | Let the MACC Investigate Without Impediment, and Allow the Truth to Emerge

[MBar] Press Release | Let the MACC Investigate Without Impediment, and Allow the Truth to Emerge


Press Release
Let the MACC Investigate Without Impediment, and Allow the Truth to Emerge
The Malaysian Bar denounces the current unrelenting onslaught against the Malaysian Anti-Corruption Commission ("MACC") in connection with its investigation into the flow of funds from SRC International Sdn Bhd (a former subsidiary of 1MDB), as well as funds of RM2.6 billion, into the Prime Minister's private bank accounts.    
It cannot be denied that, since 28 July 2015, MACC personnel have been the focus of a police investigation into allegations of leaking of confidential information and involvement in a supposed conspiracy to overthrow the Government, purportedly in violation of Section 124B of the Penal Code. 
In particular, we have seen in recent days the arrest and questioning of Tan Sri Rashpal Singh, a former adviser to the MACC, and Ahmad Sazilee Abdul Khairi, a Deputy Public Prosecutor seconded to the MACC, before they were released.  The latter's office and home were raided, and documents were reportedly removed.
The police have also questioned senior MACC officers, including Dato' Hj Bahri Mohamad Zain (Director, Special Operations Division), Datuk Tan Kang Sai (Deputy Director, Special Operations Division), Datuk IG Chandran (Director, Forensic Division), and Tuan Roslan Tuan Mat (Officer, Special Operations Division).  They reportedly arrested two officers — one of whom was the investigator looking into SRC International Sdn Bhd — who were subsequently released.  In addition, the police raided the MACC's Special Operations Division and reportedly removed documents — which may well consist of crucial evidence, particularly concerning the investigation into SRC International Sdn Bhd — from the possession of MACC personnel.
Other recent developments include the following:
(1) In an unprecedented move, all five panels that have oversight over the MACC issued a joint press statement on 29 July 2015 appealing for the MACC to be allowed to undertake its work as part of the Special Task Force without any interference or pressure from third parties;
(2) On 30 July 2015, MACC issued another press statement reportedly denying that its officers were involved in a conspiracy to topple the Government, and were instead only carrying out their duties "without fear and favour, in spite of anyone involved";
(3) MACC Special Operations Division Director Dato' Hj Bahri Mohamad Zain has been reported as saying he was baffled by the arrest of Deputy Public Prosecutor Ahmad Sazilee Abdul Khairi, and raised the ominous spectre of "hidden hands" at work;
(4) On 4 August 2015, it was reported that the MACC held a special "solat hajat" session to pray for MACC staff, their families, their community and for a corruption-free country;
(5) Datuk Hj Mustafar Ali (MACC Deputy Chief Commissioner (Prevention)) has been reported to have said on 5 August 2015 that "when action is taken on an investigating officer [during an ongoing investigation], it somewhat jeopardises the investigation";
(6) Senator Datuk Paul Low, Minister in the Prime Minister's Department in charge of governance and integrity, reportedly stated yesterday that the police "are showing high-handedness", and that it "is important that [MACC] do what they need to do"; and
(7) Also yesterday, Tan Sri Johan Jaafar (Chairman of MACC's Consultation and Corruption Prevention Panel) reportedly expressed "dismay over the spate of raids and arrests by the police", and "reiterated the need for the agency to be allowed to execute its duties unhindered".
It is quite telling, and extremely disconcerting, that the beleaguered MACC as well as a Minister in the Prime Minister's Department has had to make these statements and express indignation, as well as hold special prayers.  It compounds the commonly held fear that the MACC's investigation is being seriously derailed, and that there are strong forces at work to curtail the MACC's efforts.  Astoundingly, at this critical time, MACC Chief Commissioner Tan Sri Abu Kassim Mohamed is on leave.
The investigation being conducted by MACC was part of the work of a Special Task Force that had been set up to look into allegations of financial impropriety involving 1MDB.  It is thus shocking to learn that the Attorney General has reportedly advised that the Special Task Force should be disbanded.  
The reported incidents are wholly inconsistent with the Government's publicly declared aim to uncover the unvarnished truth behind the alleged deposit of funds into the personal bank accounts of the Prime Minister, and to unearth dishonest dealings, if any, associated with that deposit, and other irregularities concerning 1MDB.  The actions by the police, which have the appearance of an assault on the MACC, have seemingly caused irreparable harm to the standing of MACC as an agency to combat corruption.

The launch of the investigation into the MACC, and the allegation of a plot to overthrow the Government, could be seen as a thinly-disguised attempt to block the truth from emerging.  Moreover, the investigation into allegations of leaking of confidential information and the purported breach of Section 124B of the Penal Code are not carte blanche for the police to intrude into, and interfere with, the MACC's investigation, and/or to remove or compromise vital evidence collated by MACC.  It must be borne in mind that interfering with or obstructing an ongoing MACC investigation is in itself an offence under Section 48 of the MACC Act 2009.
Thus, the announcement by the MACC on 3 August 2015 that the RM2.6 billion allegedly deposited into the personal bank accounts of the Prime Minister did not comprise monies from 1MDB but was instead a "donation", raises more questions than provides answers.  The events preceding as well as following it, as set out above, give rise to the inference that the announcement was a result of external interference, or was made to relieve the pressure faced by the MACC.
The MACC Act 2009 provides that even if the alleged deposit into the personal bank accounts of the Prime Minister may have been a donation, it does not necessarily mean that no corrupt act had occurred.  The term "gratification" in section 3 of the MACC Act 2009 includes a donation, and does not exclude a political donation.  MACC should also look into section 17 (regarding the offence of giving or accepting gratification by an agent), read with section 50 (regarding a presumption in certain offences) of the MACC Act 2009.
It is therefore still imperative that the MACC identify the purpose, if any, of the donation, the conduct and activity of the recipient in relation to the use of that donation, and the reason why the donation was deposited into a private account of the recipient.  Donations of this nature are seldom made for charitable purposes.
The Malaysian Bar demands that the MACC to be allowed to conduct its investigation independently and comprehensively, without any external threat, pressure or influence. The flagrant level of intimidation inflicted on, and the climate of fear foisted upon, the MACC must stop.  The role and responsibility of the MACC must not, and cannot be, perverted to excuse or exculpate anyone — including politicians — from allegations of corruption.

Steven Thiru
Malaysian Bar
7 August 2015


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