INTERVIEW | Newly appointed Attorney-General Tommy Thomas gave Malaysiakini and The Edge an exclusive interview last Thursday – the day senior lawyer Muhammad Shafee Abdullah was charged with money laundering.
In his first major interview since he was tapped as A-G, the 66-year-old barrister and author of two books spoke about his gargantuan duties three months into his appointment as the top legal officer in the country.
In particular, Thomas talked about the difficulties and challenges faced by the Attorney-General’s Chambers (A-GC) in the 1MDB case, the civil action taken by the new Malaysian government in Singapore, United States and Switzerland to recover the assets of the failed sovereign wealth fund, the criticisms in his appointment of outside lawyers to handle the 1MDB and SRC International prosecution and the retrieval of Jho Low’s jet in Singapore.
On the difficulties his Chambers faced, Thomas said, “I would say is that never in the history of the Chambers has there been so much demand for prosecution, which is because of the past misdeeds that have accumulated over the years, problems that I’ve inherited.”
On 1MDB, the A-G said the Chambers had formed a special team to handle one of the most complicated legal cases ever faced by the country.
He talked about launching legal actions in the United States, Singapore and Switzerland, where lawyers there have been appointed to begin the civil recoveries of the 1MDB assets, with the objective to put the proceeds in a specially set-up fund.
“We have opened an account, a special segregated new account, controlled by MOF (Ministry of Finance). It’s the MOF and the new directors of 1MDB who are controlling it. It is specially set up. After the GST RM19 billion hole, there has to be a specially protected, segregated trust account earning interest and controlled by honest signatories,” he said.
Although there have been calls for enforcement agencies such as the police and the Malaysian Anti-Corruption Commission (MACC) to be given prosecutorial powers, Thomas is against the idea.
“I’m against those who say MACC must prosecute. They don’t know how much power that will give to MACC, if that happens. The existing system is perhaps the least worst. But the disadvantage of this is if the agencies do not give us the investigation papers (IPs) then the AGC cannot do much. We cannot do anything until the IPs are given. So until today, there is not a single IP on 1MDB given to us.”
The AG also talked about the criticisms in his appointment of senior lawyer Sulaiman Abdullah to lead the prosecution against former Prime Minister Najib Abdul Razak in the SRC International case and former Federal Court Judge Gopal Sri Ram on 1MDB.
“Domestically, the A-G’s Chambers has in the past appointed local lawyers. AG’s Chambers appointed Datuk KC Vohrah, Tan Sri Cecil Abraham and Dato’ Sunil Abraham and their firm, Zul Rafique, for many civil matters.
“In fact, the SRC (prosecution) team was happy (with Sulaiman) because most of them were tutored by Sulaiman at (the) university. They look to Sulaiman as their intellectual guru. One must look at it in terms of what Malaysia needs. The people of Malaysia want justice, they want speedy justice. The people of Malaysia deserve the best and the brightest to appear for them,” he said.
Thomas also explained how it would be difficult for him to lead the prosecution on SRC and 1MDB. He offered the example of a case he once handled.
“When the trial starts, you have to be full time with the trial, because at night you have to prepare cross-examination questions. When the trial is over, you have to do research and draft exhaustive written submissions. I was a hands-on barrister who took my court commitments seriously and professionally.
“Knowing that first hand, you cannot combine that with the demands of the A-G, where the PM wants to see you, the cabinet wants to consult you, Parliament is sitting, and so on. It’s just not possible, you cannot combine all these demanding tasks with the work of counsel in court.”
Thomas also spoke about how he has changed his opinion about Prime Minister Dr Mahathir Mohamad, a man whom he criticised many years ago. According to him, Mahathir is a “reformed PM”. Upon taking office as AG, he said the world’s oldest prime minister told him, “Tell me if there’s something wrong, tell me if I can’t do it.”
“So I said, ‘Yes, Tun, I will’.”
Here is the first part of the interview. The second and final part will appear tomorrow.
Question: What’s your assessment of your first 100 days?
Thomas: The challenges have been much greater than I expected. What I said on the first day remains, which was (that) I have three priorities.
Firstly, everything to do with 1MDB, which is not just the criminal aspect, for there’s the civil recovery as well. Secondly, the lopsided contracts and thirdly, law reform.
Those have always been my focus, and remain my focus. But (it was only when) I came into the office and sat down and started doing work, that I realised the awesome responsibilities that are attached to the office.
And I think you will not know it unless you are sitting here. It’s difficult for anyone from the outside – certainly not a private practitioner, as I was. Even somebody from this Chambers – there are about 1,200 lawyers here – even they won’t understand the huge amount of responsibilities (of the AG). So that has surprised me.
How about the competency of your officers? There have been some criticisms that there’re not enough competent people dealing with the prosecution. Do you find that a problem?
I think that’s unfair. We have tremendous specialisation, but of course, lacking in some areas. For example, in things like AMLA (Anti-Money Laundering, Anti-Terrorism Financing and Proceeds of Unlawful Activities Act), which is very critical in the next few years, and Mutual Legal Assistance – again very critical because we’ve got to deal with different countries – we got top-class specialists.
And for the contracts review, we also have excellent people as I’m personally dealing with them. In so far as prosecution is concerned, what I would say is that never in the history of the AGC has there been so much demand for prosecution, which is because of the past misdeeds that have accumulated over the years – problems that I’ve inherited.
Whether it’s 1MDB or not, there is a long line of cases waiting once the IPs are delivered to me. Even if you got 1,000 world-class prosecutors, it’s just not enough. That tells you – it’s a commentary on the alleged crimes that have been built up over the years. So the pressure is awesome. That’s why we’re setting up the 1MDB unit, we’re setting up different units to cope with the cases because we’ve never done this before. If AGC had done this from 201… if prosecutions took place from 2011 or 2012, then it would not have built up.
And just to get it in relative terms, please look at the US. Their DOJ (Department of Justice), which is obviously world class because they’ve got so many talented people, forensic accountants, lawyers and unmatched resources… look at how the Special Counsel, Robert Mueller, and his team, are doing. It took more than a year before they charged anybody. Then they went very fast, they’ve charged, I think, about 20 people in the last three months and they have got a few convictions.
But it took them one year. And I tell you the 1MDB scandal is much, much more complex than what (US President Donald) Trump has allegedly done. 1MDB is the world’s greatest kleptocracy!
You mentioned there are a criminal aspect and the asset recovery aspect with regard to 1MDB. Maybe you can share with us the approach your office is taking in regard to these two aspects?
On criminal, we can’t do anything until the IPs (investigation papers) come. Just to remind you that in our system – many countries also have it in order to prevent too much concentration of power – the idea is to distribute power. Checks and balances – so the four or five investigative agencies in Malaysia, like the police, MACC, Bank Negara, Securities Commission, Customs – there are about five or six bodies which investigate, they cannot charge. Because otherwise, they would be too powerful.
The A-GC prosecutes. We have the sole monopoly on prosecution and we should not carry out investigations because we’re already so powerful, so can you imagine how much more powerful we will be if we investigate (as well). So I’m against those who say MACC must prosecute. They don’t know how much power that will give to MACC, if that happens. The existing system is perhaps the least worst.
But the disadvantage of this is that if the agencies do not give us the IPs, then AGC cannot do much. We cannot do anything until the IPs are given. So until today, there is not a single 1MDB IP given to us. When it came to Jho Low (who was charged in absentia for money laundering), AGC asked the police to share their investigations, and then we charged him. 1MDB, not yet, but, hopefully, it will happen soon.
Do you know how many IPs have been opened as far as 1MDB is concerned?
No, I don’t know. And of course, you know MACC’s public position – I think they reiterated that about two weeks ago – is 60 percent (completed). They’ve been saying that to me from the time I took office. So what they’ve told me is what they’ve told the public: 60 percent of the first IP of the 1MDB is done.
And of course, ‘1MDB’ is a shorthand description of a massive fraud done over five, six years across the world, in numerous transactions. So you really have to look at it the way the fraudsters planned it. The fraudsters designed transaction after transaction, deal by deal. So there could be a 2011 fraud, a 2012 fraud, a 2013 transaction, a 2014 deal and so on.
Your immediate predecessor, Tan Sri (Mohamed) Apandi Ali, has been accused of conspiring to cover up the 1MDB scandal. Can we expect charges to be brought against him as well?
I don’t know anything about that. We have not gone in that direction. What I can tell you is – and all of you know it – is that there was no prosecution on 1MDB during his three-year tenure. That’s a fact. You have to ask him why there were no prosecutions, and none during the previous A-G’s time, too.
Because, as you know, the origin of 1MDB was the TIA (Terengganu Investment Authority) which was happening in 2009 and 2010. Anyone living in KL (Kuala Lumpur) would be aware that there were things horribly wrong. I was aware of things that were questionable in 2009 and 2010 just by mixing with the business community, journalists and politicians. Those in KL with an informed opinion knew that something was wrong in 2009 and 2010. So why didn’t my predecessors do anything about it? You have to ask them.
Do you have any authority to ask them (investigators) to update you or to speed up?
Yes, they do the update and all that. But that’s of no use, I rather not be updated. I want the complete IP. It’s better to have the complete package because, otherwise, you’re reading it twice. If you ask my team to read it when it’s at 60 percent and then hen the 100 percent comes, you have to reread. So it’s of no help, of no practical assistance, unless they give us the complete package.
Now I must answer the civil part. The civil part is the one that’s absolutely neglected. Everybody forgets that because the criminal dimension is the one that is ‘sexy’ and ‘newsworthy’.
Civil recovery is the one that’s underrated and not understood at all. It is essentially to recover as much of the stolen stuff as possible, and most of it is abroad. So we start with the US. The DOJ, as you know, they have been successful. They began in 2016, with the Loretta Lynch press conference with the filing of complaints where they have frozen assets – which we say, and the US government does not deny, belongs to us in trust.
Because taxpayers’ money were used, indeed stolen, to buy these assets, so they are assets that belong in trust to Malaysia but were held by other people who misused it. So we have to stake a claim. Again, we lost three years of it.
I must remind you that the previous government distanced itself. Its public position was these weren’t Malaysian assets when actually they are Malaysian assets. Until GE14, Malaysia’s official position was they were not Malaysia’s assets. Seldom would a beneficiary tell the world “these are not my assets”, and that’s what Malaysia was doing. We only started telling the truth after GE-14.
So that’s the US, we have to intervene. We have appointed lawyers and they’re going to intervene in court proceedings because it’s quite technical and related to sovereign immunity and jurisdictional questions. We are receiving advice, and hope to make a decision shortly.
Then Singapore, it’s also started. Again, it’s the same process. We have appointed lawyers and they are appearing in court. We’ve got some low-hanging fruits. But where there are opposition and contest, it’ll take five to six months. This first group of defendants did not object at all. They relinquished all claims. They surrendered, so it’s no problem.
And Singapore wants the identities of the defendants to be anonymous. One can understand because Singapore wants to encourage more claimants to give up their claims, and in return, Singapore would keep confidential their names. That makes sense. We just want the assets.
It (the identities of the defendants) will forever be anonymous?
That I don’t know, it is a matter for Singapore to decide. But for us, we want the monies returned to Kuala Lumpur.
Does your office have an indication as to how much money (is involved in Singapore)? The US DOJ has mentioned US$4.5 billion in its suit.
Singapore has not really mentioned it because they’re not really sure themselves as there are some contests. But what will happen in the next six months or so is that we will get court orders and monies will be returned. And as you know, we’ve opened an account, a special segregated new account, controlled by MOF (Ministry of Finance). It’s the MOF and the new directors of 1MDB who are controlling it.
So it’s an MOF-1MDB recovery account?
Yes, specially set up. After the GST RM19 billion hole, there has to be a specially protected, segregated trust account earning interest and controlled by honest signatories.
This is for recovered assets from everywhere, not just Singapore?
Yes, it starts with Singapore. And then we’ve got Switzerland, again they’re cooperating with us.
The biggest one is in the US?
It will take several years, you think?
No, I don’t think so. I think… well, the US… well, maybe. It goes asset by asset. They are ‘in rem’ actions.
So it’s not a collective (action)?
No. The US claims – let’s say they have got 10 separate complaints, then it’ll be because these are 10 different assets. So they may have one for the yacht, one for the artwork, one for this land, one for that land and so on. Just like our admiralty claim for the yacht: it is also ‘in rem’. What ‘in rem’ means is a claim against an identified property, as opposed to an individual, which would be an ‘in personam’ action.
Have there been any challenges in the US? Jho Low?
Yes, court challenges.
To be clear, in Singapore, what exactly are the assets that are involved. Is the (private) jet one of them or not?
Most are bank accounts. Cash in bank. But I think there may be one or two properties: apartments.
What about the private jet?
The private jet, we are in no hurry to receive it. Because as things stand, Singapore has done it skilfully. Singapore has taken steps to ensure that the plane cannot fly off without air traffic control, which they will not give. The plane cannot leave Singapore airspace, to the best of my knowledge.
But the maintenance of the plane remains Jho Low’s. So, from Jho Low’s perspective, he’s got the worst of both worlds. He’s got to maintain the plane, which is parked on the runway but cannot fly it out.
From our perspective, there’s no hurry to get it – it’s safe there – let us sell the yacht, then we can turn our attention to the plane. Unfortunately, the plane doesn’t come within our admiralty jurisdiction, so it’s more complicated. We have to be concerned about giving a clean title to the buyer.
There have not been complaints about the A-G’s office using private lawyers overseas to help in asset recovery. And yet when the AG’s office uses the private lawyers here to help in the case of the yacht, or even bringing in Tuan Haji Sulaiman Abdullah and Datuk Seri Gopal Sri Ram, there has been criticism. Would you like to respond to that?
First of all, in foreign jurisdictions, we have no choice, absolutely no options. So we have to use local lawyers there, for instance, Swiss lawyers in Switzerland. In so far as Malaysian lawyers, I think what has surprised me is the outcry, as if this was the first time that AGC has used external lawyers. I asked the AG’s Chambers to do some research on previous appointments.
In the last 20 years, beginning with our first dispute with Singapore in the International Court of Justice (ICJ) in the Pulau Batu Puteh dispute – the first one, which was about 20 years ago, we appointed a large group of foreign lawyers, I can’t understand why we did not appoint Malaysian lawyers. The foreigners charged large sums of fees, and Malaysia lost anyway.
Domestically, AGC has in the past appointed local lawyers. AGC appointed Datuk KC Vohrah, Tan Sri Cecil Abraham and Dato’ Sunil Abraham and their firm, Zul Rafique, for many civil matters.
In our dispute with Singapore on Temasek: our joint venture in the Singapore land – whether we ought to pay the development fees. That went to arbitration. Again, I don’t see why Malaysian lawyers could not have been used. It was a straightforward case of interpretation of a contract. Quite straightforward. And I think we had three or foreign lawyers charging hefty fees!
This was in Singapore?
No, in London. A dispute between Malaysia and Singapore heard in London. But it is arbitration and so any lawyer can appear. Malaysian lawyers can appear. It was followed by a trademark registration case at the EU General Court. Again, AGC appointed foreign lawyers. There were other disputes of an international nature which were all kept secret, and not made known to the public. Not even the Malaysian legal profession knew about them, but taxpayers were paying for such litigation.
Finally, with the second Pulau Batu Puteh dispute, where Malaysia wanted to revisit the dispute. Prime Minister Tun Mahathir decided to discontinue it. We had four foreign lawyers and two Malaysian lawyers – Datuk Abu Bakar bin Mohamed Sidek from Penang and Datuk Firoz Hussein bin Ahmad Jamaluddin from Kuala Lumpur. One of the foreign lawyers informed the prime minister that the case was doomed to fail. That’s why the PM decided to discontinue.
Coming back to domestic disputes, we’ve had Tan Hock Chuan acting for the Malaysian government in the Teoh Beng Hock inquest. We had Tan Sri (Muhammad) Shafee Abdullah acting for the public prosecutor against Datuk Seri Anwar Ibrahim in the Court of Appeal and the Federal Court. Actual criminal prosecution – so that’s the closest analogy to Tuan Haji Sulaiman and Sri Ram.
In civil suits, A-GC appointed Cecil Abraham and Zul Rafique for defendants such as Tan Sri (Abdul) Gani Patail, MACC and the Government of Malaysia.
Of the five lawyers I have appointed, three of them are acting “pro bono” – Sulaiman, Sri Ram and Sitpah Selvaratnam. The other two, Jeremy Joseph and Ong Chee Kwan are entitled to be paid because they are advising us in a really specialist area – shipping and admiralty – where the AGC does not have expertise, and it’s a commercial deal.
Whatever proceeds we get, hopefully in the hundreds of millions, the two lawyers should be paid. But I’m closely monitoring it – it’s an hourly rate – and of course, the MOF is also monitoring.
Could it (the outcry) be because people were taken by surprise because you mentioned 1MDB as one of your top three priorities? And now, you’re being seen as passing over the lead prosecution, so perhaps people are taken aback by that.
Possibly. But you see, you can’t have it both ways. On the one hand, the criticism is that I don’t have criminal law experience and yet when I appoint two senior lawyers who have substantial criminal law experience, the criticism continues. So one has to accept: anything one does is wrong!
But the truth is that it is just not possible to do a long trial and combine the work of A-G. I know that because when I was in practice I used to do long trials – heavy corporate commercial disputes. In fact, about a year before I left the Bar, I did a 40-day trial. It is a reported bonds case.
For four weeks before the trial, I did nothing but preparations for the trial. When the trial starts, you have to be full time with the trial, because at night you have to prepare cross-examination questions. When the trial is over, you have to do research, and draft exhaustive written submissions. I was a hands-on barrister who took my court commitments seriously and professionally.
Knowing that first hand, you cannot combine that with the demands of the A-G, where the PM wants to see you, the cabinet wants to consult you, Parliament is sitting, and so on. It’s just not possible, you cannot combine all these demanding tasks with the work of a counsel in court.
But you have not completely stepped away from it…
No, I’m still absolutely in charge. Like, for example… the Shafee prosecution. The MACC team interviewed the witnesses. Sri Ram was involved in the final stages of investigations. I was involved in the preparation of the charges with the team. The final decision to prosecute is mine, and mine alone. Malaysia must use all the resources available to pursue such matters.
What about your officers within the Chambers itself, isn’t that a vote of no confidence?
Not really. Because as I’ve said, there’s just so much work, and there are many cases in the horizon as we are planning and we can see where it is going. They are part of the team and they are working together. So it’s not a vote of no confidence.
In fact, the SRC (prosecution) team was happy because most of them were tutored by Sulaiman at (the) university. They look to Sulaiman as their intellectual guru. One must look at it in terms of what Malaysia needs. The people of Malaysia want justice, they want speedy justice. The people of Malaysia deserve the best and the brightest to appear for them.
What about political pressure? Has there been any on the office since you started here, any political pressure or messages sent to you saying, ‘we want this done’, or ‘that done’?
Absolutely not. All concerned have been very good. They have all acted properly and correctly: the PM, the cabinet, the ministers. Of course, many ministers are known to me as I’ve worked with them in the past. They have left matters of law to me and the AGC. There is neither pressure nor interference.
Are you surprised that there has been no political interference, especially coming from a PM who is accused of keeping the Jdiciary on a tight leash?
No, I’m not surprised. Tun Mahathir is a reformed PM.
You truly believe he has reformed?
Absolutely. In my dealings, Tun has been right and proper. In fact, on the first day, he informed me, “Tell me if there’s something wrong, tell me if I can’t do it.” So I said, “Yes, Tun, I will.”
Have you changed your opinion of Mahathir? You were quite critical of him before.
(Laughs) There’s no doubt in my mind that the PM and the members of the cabinet whom I have dealt with genuinely believe in reform. So I can confirm that I am trying to be a reforming AG in a reforming government!
PART 2 of The Interview
Thomas talks about law reforms, the prosecution of Shafee, the dropping of charges against Finance Minister Lim Guan Eng and lopsided government contracts, among others.