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Tuesday, 28 July 2015

Interference into 1MDB Investigations Shields Wrongdoers and Conceals Wrongdoing

Tuesday, 28 July 2015 09:01pm

Many burning questions in respect of allegations of financial impropriety in 1MDB remain unanswered.  There are also serious concerns that the evidence or statements of critical witnesses or suspects, including the Prime Minister, have apparently not been recorded, and that relevant documents have not been promptly (or at all) secured. 
In this regard, the Malaysian Bar is astounded by the news reports today regarding the Government’s removal of the Attorney General, Tan Sri Abdul Gani Patail, who is a key member of the Special Task Force investigating the 1MDB matter.  This lends to the perception of interference by parties with vested interests — such as the Executive, or even the Prime Minister himself — in the work of the Special Task Force.  

The abrupt removal, and the manner of removal, of the Attorney General are shocking.  It has been reported that the Attorney General’s services were terminated on 27 July 2015 on health reasons and that he will remain as a Judicial and Legal Services officer until his retirement on 5 October 2015.  It would seem unprecedented for a senior civil servant, let alone one with the rank of the Attorney General, to be removed so close to his official retirement. 

Moreover, his removal and reduction in rank are unconstitutional, inasmuch as there appears to be non-compliance with Articles 135(2) and 145(5) of the Federal Constitution, which include the requirement for reasonable opportunity to be heard.  The position of the Attorney General is constitutionally mandated, and any removal must comply with stringent standards of due process.

Further, the Bar Council has frequent and direct engagement with the Attorney General and, to the best of our knowledge, his recent health has not hindered the performance of his duties.  The reason given for his removal is therefore questionable.

The unwarranted termination of the Attorney General’s services is in sequel to a series of administrative orders that have impeded and undermined the investigations into 1MDB.  The latter seriously curtails fundamental rights such as the freedom of information, movement and expression.

Administrative orders are made by the Government and its agencies pursuant to discretionary statutory powers.  The exercise of this governmental discretion is subject to overarching principles of fairness and natural justice.  It would be a stark abuse of power if administrative orders were exercised in a biased manner or for ulterior purposes, including to shield wrongdoers or to conceal wrongdoing.

The recent actions by the authorities appear to demonstrate a pattern of abuse of power to impose dubious administrative orders.  Instances include the following:

(1) The Malaysian Communications and Multimedia Commission’s decision to issue an administrative order under the Communications and Multimedia Act 1998 to block the Sarawak Report website, due to perceived threats to national security.  Sarawak Report has been one of the sources of allegations of wrongdoing involving 1MDB, which has also implicated the Prime Minister.  Naturally, the common perception would therefore be that the order is an attempt to suppress the flow of, and access to, information on the allegations.

(2) The administrative orders imposed by the Director General of Immigration, under the Immigration Act 1959/63, on Tony Pua (Member of Parliament for Petaling Jaya Utara), Mohd Rafizi Ramli (Member of Parliament for Pandan) and Datuk Tong Kooi Ong (owner of The Edge Media Group), which ban overseas travel without any reasons. The freedom of movement of these persons has been infringed, and they seem to have been targeted because of their strident criticism of 1MDB or the exposé of alleged wrongdoings concerning 1MDB.  Ironically, the very persons who have been implicated in these allegations — such as the Prime Minister and some of the officers of 1MDB — have not been similarly barred from travel. 

(3) The three-month administrative suspension order imposed by the Ministry of Home Affairs, under the Printing Presses and Publications Act 1984, on The Edge Weekly and The Edge Financial Daily, on grounds of possible public alarm over the publication of reports concerning 1MDB and allegations in them that implicate the Government and national leaders.  These grounds are irrational, as the public alarm is in fact due to the failure to answer satisfactorily the allegations and the reports in the publications.  The suspension order stifles freedom of expression, and can easily be perceived as a blatant attempt to silence a contrary voice on a matter of grave public interest.

The resort to such administrative orders fuels the growing perception that critics in the 1MDB matter are being victimised and muzzled, whilst their allegations are being ignored and the persons against whom the allegations have been levelled are not being investigated fully.  

The Malaysian Bar condemns the ostensible interference, through unconstitutional and unlawful conduct, with the ongoing investigations in the 1MDB matter.  There must be no meddling with the Special Task Force, particularly the work of the MACC, since the nature of the allegations largely involves corruption.

The acid test of the integrity and credibility of any investigation is how allegations against persons in high office are dealt with.  The abuse of administrative powers, and now the removal of a key member of the Special Task Force, threaten to cripple the investigations into 1MDB and render the entire exercise a meaningless charade. 

Steven Thiru, President, Malaysian Bar

28 July 2015

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