Guna’s Take on the Politics of ICERD and Harapan’s Volte-Face


November 27, 2018

Guna’s Take on the Politics of ICERD and Harapan’s Volte-Face

https://www.malaysiakini.com/columns/453556

QUESTION TIME | If we thought that UMNO-style gangster politics is dead and gone with New Malaysia, we have been very sadly mistaken as the recent issue over the ratification of the International Convention for the Elimination of all forms of Racial Discrimination (ICERD) shows.

Somehow or other, the ratification of this convention has been taken to be a major attack on the special privileges of bumiputeras, including Malays, resulting in a cacophony of protests by UMNO and PAS, which were rather badly handled by the Harapan government.

It is no such thing.  There are enough safeguards and provisions in the IICERD for the special privileges of bumiputeras to continue and there are countries such as the US which ratified the treaty, saying its own constitution provides for those rights, and if there is any problem, then its constitution will stand supreme against ICERD.

Despite what Prime Minister Dr Mahathir Mohamad has said about having to amend the constitution, which would require a two-thirds majority in Parliament, to ratify Icerd, most expert legal opinion is that there is no such necessity. In fact, Mahathir had said in September at the UN General Assembly that Malaysia would ratify six UN conventions, which includes Icerd.

The about-turn that Harapan made over Icerd is substantive for one very important reason: it has basically submitted to the blackmail of UMNO and PAS who had threatened not just demonstrations but violence. Demonstration organisers talked openly about creating another May 13 in videos that went viral, raising needless alarm and concern.

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The mute Malaysian Women Libbers

That will only encourage them to come up again and again with gangster-style tactics of violence and bloodbath when every issue of importance is debated. Capitulation to them now over an important issue in Malaysian politics will only make them raise their voices higher and their threats more severe in future.

What was terribly surprising was the silence and muted response by Harapan leaders over an issue which had been twisted and turned by the opposition UMNO and PAS into a highly explosive racial and religious one.

Social redress

There was no attempt to explain that ratifying the ICERD was in no way against bumiputera rights but was aimed at endorsing universal principles against any form of racial discrimination. ICERD specifically excludes special privileges for any community as a means of social redress for as long as that is necessary.

There are some who say that the Federal Constitution sets no limit on special privileges, but even that is not an issue as Icerd can be ratified subject to the primacy of a country’s own constitution as the US did when it ratified Icerd in 1994.

These concerns are addressed and allayed comprehensively in this article by respected constitutional scholar Shad Saleem Faruqi who deals with all the major legal and constitutional issues over ratifying ICERD.

 

Here are the concluding remarks of his article: “ Even if ratified by the executive, Icerd cannot displace Article 3 (Islam) (of the constitution), Article 153 (special position of the Malays and natives) and Article 181 (prerogatives of Malay Rulers). This is due to the legal fact that our concept of ‘law’ is defined narrowly in ArticIe 160(2) and does not include international law.

“The constitutional position on the ICERD is, therefore, this: Even if the ICERD is ratified by the executive, it is not law unless incorporated into a parliamentary Act. Even if so legislated, it is subject to the supreme constitution’s Articles 3, 153 and 181. Unless these Articles are amended by a special two-thirds majority and the consent of the Conference of Rulers and the Governors of Sabah and Sarawak, the existing constitutional provisions remain in operation.

“The ICERD is not a law but only a pole star for action. Its ideals cannot invalidate national laws. The agitation against it is contrived for political purposes and perceptive Malaysians must not allow themselves to be exploited by politicians.”

Unfortunately, that is exactly what Harapan has done by capitulating to UMNO-PAS and others threats of violence over Icerd at a demonstration to be organised on Dec 8. Now that demonstration is going to be a celebration of their “success” – how pitiable.

Here is the Prime Minister’s Office’s statement on the matter: “The Pakatan Harapan government will not ratify CERD. “The government will continue to defend the Federal Constitution, in which lies the social contract agreed to by representatives of all races during the forming of the nation.”

Narrow agenda

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A Janus-faced Malay Politician

“It was Mahathir, after all, who said point blank to the Malays that they should stop supporting UMNO because its leader was involved in the largest kleptocracy the world has known via 1MDB where RM42 billion was lost. Surely through proper information and education, most Malays can be made to realise that ratifying ICERD does not affect their rights or the rights of other bumiputeras.

But instead, the silence of Harapan leaders and their lack of defense of the reason why ICERD was to be ratified as part of the intentions voiced in their manifesto led to this issue systematically being used to whip up sentiment, spiralling up to the defence of Malay rights which it is not”.–Gunasegaram

That pathetic statement follows upon Mahathir’s volte-face over signing ICERD, saying the untruth that a constitutional amendment is needed to ratify the convention, and taking the easy way out instead of explaining to the Malays, who appear to be the only bumiputra group opposed to the ratification, what the real situation is.

It was Mahathir, after all, who said point blank to the Malays that they should stop supporting UMNO because its leader was involved in the largest kleptocracy the world has known via 1MDB where RM42 billion was lost. Surely through proper information and education, most Malays can be made to realise that ratifying ICERD does not affect their rights or the rights of other bumiputeras.

But instead, the silence of Harapan leaders and their lack of defense of the reason why ICERD was to be ratified as part of the intentions voiced in their manifesto led to this issue systematically being used to whip up sentiment, spiralling up to the defence of Malay rights which it is not.

And handing a victory on a platter to the gangster politics of UMNO, PAS and others who play up racial, religious and royalty sentiments and threaten violence, not in furtherance of Malay rights, but their own selfish, narrow agenda of capturing Malay votes and support.

It is more than a sorry state of affairs for it might lead to pressure on the entire Harapan reform agenda if a simple ratification of the ICERD can be turned into such a serious non-issue.


P GUNASEGARAM wonders how many more manifesto promises Harapan will break. E-mail: t.p.guna@gmail.com

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

ICERD, New Malaysia and the Politics of Ketuanan Melayu


November 26, 2018

ICERD, New Malaysia and the Politics of Ketuanan Melayu

https://www.freemalaysiatoday.com/category/opinion/2018/11/22/icerd-and-the-end-of-malaysia-baru/

by Dennis Ignatius@www. freemalaysiatoday.com

The more things change, the more they stay the same. – Alphonse Karr

Malaysians must be scratching their heads over how quickly the ICERD has gone from being a symbol of hope to a stark reminder that we have yet to come to grips with the racism that has plagued our nation for so long.

It was only a few weeks ago when Prime Minister Dr Mahathir Mohamad, speaking at the United Nation’s (UN) General Assembly as head of the new Pakatan Harapan (PH) government, proudly announced to the world that “the new Malaysia will firmly espouse the principles promoted by the UN in our international engagements. These include the principles of truth, human rights, the rule of law, justice, fairness, responsibility and accountability, as well as sustainability”.

In this context, and while admitting that it was a sensitive issue, he “pledged to ratify all remaining core UN instruments (including ICERD) related to the protection of human rights”.

His speech was immediately hailed both at home and abroad as an indication of the new government’s commitment to human rights and democracy.

The Ketuanan Melayu pushback

The reaction of Umno-PAS and other Ketuanan Melayu groups was fast and furious. Insisting, contrary to the facts, that ICERD directly challenged Malay rights, the position of the rulers and even the role of Islam in Malaysia, they demanded that the government abandon plans to ratify ICERD.

Add to that unverified reports of unknown groups distributing Bibles to Malays (even leaving copies in mosques, apparently) and UMNO-PAS had all the ingredients necessary to create the perfect political storm. Having found a lethal mix of race and religion that could galvanise public opinion, divert attention from their own failures and put PH on the defensive, they are now enthusiastically milking it for all its worth. And it’s going to be worth a great deal to them.

Umno president Zahid Hamidi, in the best traditions of his party, starkly warned that the Malays would run amok if ICERD was ratified. PAS leader Hadi Awang, always at his best when it comes to religious demagoguery, insisted that it was “compulsory for Muslims to oppose ICERD” as it would diminish the special position of Islam in the country and weaken the Malays yet further.

Of course, ICERD does no such thing; it is in reality more an aspirational convention rather than a binding treaty. Members are given wide leeway to carve out for themselves exceptions to satisfy their own local laws; dozens of countries have, in fact, done so. Indeed, several local legal experts have confirmed that ratifying ICERD would not violate the constitution. Malay extremists, however, are determined to read into it whatever serves their nefarious agenda.

Anti-ICERD rallies are now being planned across the country with a mammoth one scheduled to take place on December 8. It is telling that the same people who did nothing when billions were being looted from the public purse, when our nation was being literally sold off to a foreign power, are now ready to push the country to the brink of instability over a non-existent threat.

In the meantime, a vicious and racist anti-DAP campaign, perhaps the worst we’ve ever seen thus far, is now underway.

PH in full retreat

Initially, PH luminaries defended the decision to ratify ICERD; it was, after all, mooted by none other than the Prime Minister himself at a very high-profile international event.

Mujahid Yusof Rawa (Minister in Prime Minister’s Department for religious affairs), for example, took Malay rights groups, including PAS, to task for claiming that Malay rights would be abolished if the convention is ratified. He stressed that ICERD “will not have any impact on what’s protected under the Federal Constitution”. PPBM president and Home Minister Muhyiddin Yassin said essentially the same thing.

However, as right-wing pressure grew, PH’s resolve crumbled and its ministers beat a hasty retreat from ICERD.

Muhyiddin started worrying publicly about whether ICERD would undermine the special position of the Malays. Syed Saddiq, the PPBM Youth chief and youth and sports minister, expressed concern that ICERD could undermine constitutional provisions pertaining to Malay rights. Other ministers with the exception of Foreign Minister Saifuddin Abdullah (who continues to valiantly defend ICERD) simply kept their heads down.

PKR President Anwar Ibrahim, always ready to stand decisively on both sides of an issue, said that while ICERD did not conflict with the constitution, there was no hurry to ratify it given other more pressing priorities – as if the government cannot chew gum and walk at the same time. In Parliament, he even joined the chorus of opposition calls for the Foreign Minister to defer ratification.

Of course, all of them were careful not to reference the fact that it was the Prime Minister himself who surprised everyone by raising the issue at the UN. Mahathir himself finally agreed that it would be almost impossible for Malaysia to ratify ICERD because the government lacked the two-thirds majority it needed to amend the constitution. He also added that some aspects of ICERD were not suitable for Malaysia. It was a surreal moment that immediately begged the question of why the prime minister raised the issue at the UN in the first place.

Non-Malay politicians, for their part, justifiably terrified at being cast as the villains in the whole saga, are running for cover. DAP Secretary- General and Finance MMnister Lim Guan Eng said, “We did not raise the issue. It was Waytha (Minister in the Prime Minister’s Department) who did.” MCA and Gerakan as usual attacked DAP.

Left holding the bag

Unsurprisingly, Waytha Moorthy, whose portfolio in the Prime Minister’s Department obliged him to steer the ICERD issue forward, has now become the fall guy.

More than 115,000 signatures have also been collected for a petition demanding Waytha’s resignation; he now joins a growing list of PH ministers – Theresa Kok, Kulasegeran, and Gobind Singh – whose resignations are being demanded by Ketuanan Melayu groups for one reason or another.

If Waytha is guilty of anything, it was simply of taking the Prime ,inister’s UN speech at face value and acting upon it, as most responsible ministers would. After all, the foreign minister had tabled the same UN speech in Parliament and received unanimous PH support for making it official policy. Unfortunately for Waytha, when push came to shove, all his Cabinet colleagues (save for the foreign minister) left him holding the bag.

A PH-made fiasco

ICERD has, undoubtedly, dealt a serious political blow to the PH government. Despite its good intentions, the government failed to do its homework, failed to build a clear consensus within its own ranks and failed to agree on a game plan to manage the ratification process once it committed itself to doing so. They came across as a party in disarray, unable to even agree on a common position. Worse still, they did not have the courage of their own convictions to stand their ground against Umno-PAS.

PH’s mishandling of the ICERD issue has now given UMNO-PAS a new lease of life. In a single swoop, Umno-PAS appears to have out-manoeuvred PH and put it on the defensive. ICERD has also allowed Umno-PAS to burnish their credentials as the preeminent defender of all things Malay. Whichever way you look at it, it’s a brilliant (if obnoxious) political gambit by a party that until recently was given up for dead.

More dangerously, it has also allowed UMNO-PAS an opportunity to claw back some of the political power it lost at the ballot box; by threatening to run amuck whenever it feels Ketuanan Melayu is challenged, it will now be able to strongly influence national policies without even being in the Cabinet.

At the end of the day, by exploiting ICERD, UMNO-PAS has now forced PH’s Malay leadership to compete with them on the issue of who can best defend Ketuanan Melayu. Rather than being consigned to the dustbin of history after May 9, Ketuanan Melayu will now become the altar at which all Malay politicians will have to offer obeisance if they wish to hold power.

If PH doesn’t act swiftly and decisively to extricate itself from this mess, it will be the end of Malaysia Baru as we know it.

The views expressed are those of the author and do not necessarily reflect those of FMT

What Now for America?


November 9, 2018

What Now for America?

Now that the Democratic Party has won control of the US House of Representatives, it must resist pressure to launch impeachment proceedings against President Donald Trump. If the party is to win back the White House in 2020, it should adopt a simple core message for the next two years.

 

NEW YORK – At least it wasn’t a disaster. If the Democrats had failed to secure a majority in the US House of Representatives, President Donald Trump would have felt almighty, with all the dire consequences that would entail. But the Republicans still control the Senate, and that means that the judiciary, including the Supreme Court, will be pushed further to the right. And the election of Republican governors in major states like Ohio and Florida means that electoral districts can be finessed to boost Trump’s reelection chances in 2020.

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One of the most common political clichés ahead of these midterm elections was that they were a “battle for America’s soul.” It is easy to imagine Republicans and Democrats standing for two different versions of the country: one is overwhelmingly white, modestly educated, not very young, strong in rural areas, often male, and proud to own guns; the other is better educated, younger, urban, racially diverse, more female, and keen to control guns. These are caricatures, but they express a very recognizable reality.

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Though both sides believe they are patriotic Americans, their idea of patriotism could not be more different. The writer James Baldwin put the case for “progressive” patriotism well: he loved America more than any country in the world, and for that reason insisted on the right to criticize her perpetually. Trumpian patriots would have denounced Baldwin as a traitor.

The big temptation for the Democrats, now that they have won control of the House, is to make the most of what they see as their greatest strengths: racial and gender diversity, and a shared loathing of Trump. This would be a logical position. Trump is indeed dreadful, and the Democrats could legitimately claim that older, rural white men are less representative of America today than the young, the urban, the nonwhite, and newly empowered women.

And yet, to focus the Democratic agenda on Trump and diversity would be a mistake. There will be pressure, especially from younger Democrats, fired up by their success, to impeach the president. But as long as the Senate, which would have to convict him, is in Republican hands, an indictment by the House would be practically meaningless. Even if impeached, he would still be president, and Republicans would be inclined to defend him even more fiercely.

It is certainly a good thing to have more women and nonwhite, non-Christian representatives in the legislature. This provides a refreshing and necessary contrast to the Republican Party, which has remade itself in the image of its leader: angry, white, and often openly racist. But to fight Trump’s identity politics with an equally aggressive form of identity politics would make political tribalism worse, and could make it harder for the Democrats to win national elections.

There is always a danger that the Democrats will be divided, with younger radicals pitting themselves against the mostly white establishment. But the Republicans, who seem utterly united behind their leader, have a problem, too. The socially liberal, highly educated Republicans who used to be the backbone of the party have been pushed so far to the margins that they are almost invisible. John McCain was perhaps the last of those Mohicans.

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The Democrats should capitalize on that. And the way to do it would be to put less stress on sexual, racial, or gender identity, and more on the economy. This might seem a naive strategy during an economic boom, when Republicans can boast of record-low unemployment. But even many traditional laissez-faire conservatives should recognize that a yawning divide between rich and poor is not good for business. Henry Ford, who was not a fount of wisdom on many matters, recognized that if you want to sell cars, you have to put enough money into people’s pockets so that they can buy them.

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This, too, is an issue close to America’s conflicted soul. For some, American identity is based on red-blooded capitalist enterprise and rugged individualism, unhindered by excessive government regulation in the pursuit of material happiness. But for others, America stands on an ideal of greater social justice and economic equality – which nowadays should include a commitment to address climate change (a barely-discussed issue in the midterms), given that global warming will harm the poor more than the rich.

There have been boom times for the very wealthy, such as the Gilded Age in the late nineteenth century, when 2% of American households owned more than a third of the country’s wealth, or indeed our own time, when the top 1% owns almost half the wealth. And there have been periods of reform, when governments tried to redress the balance. The most famous example is Franklin D. Roosevelt’s New Deal in the 1930s.

It is clearly time for New Deal II. Instead of promising more tax breaks for the richest citizens, a more equitable fiscal policy could pay for necessary bridges and other public goods and services that would improve everyone’s life. Affordable health care for all citizens is a mark of a civilized society. The US is still a long way from that goal. The same is true of high-quality public education. It is grotesque that so many people who stand to benefit from such “socialist” policies are still persuaded to vote against them because they are supposedly “un-American.”

Concentrating on egalitarianism would appeal to liberals, of course, but it should not alienate moderate voters either, because more equality would be good for the economy. And it might even persuade some angry, poor Trump supporters to recognize that his pseudo-populism is not about helping the left-behind folks in Rust Belt cities and rural hinterlands. It is about giving even more money to the very few. The Democrats’ core message for the next two years should be that in a plutocracy, everyone else loses.

 

Rescuing RELIGION


November 4, 2018

DIVERSITY

Rescuing RELIGION

I would urge every person of faith (in this room) to take personal responsibility to move religion back to where it should be, on the side of right, and on the side of the rights of people.

There are many inspiring stories around the world. In Philadelphia, where I’m now on sabbatical, I visited the leading human rights group that stands in defence of Muslims in in the US, the Council on American Islamic Relations.

CAIR in Philadelphia is headed by a white Jewish American, its legal officer is an African-American Christian, and a Muslim is its education officer (main photo). So its three full time employees are a white Jew, a black Christian, and a Muslim immigrant. And they are fighting for Muslims’ human rights. This is what religion is capable of. It is capable of coming together in interfaith struggles to pursue social justice.”Singapore’s Public Intellectual George Cherian

An extract from the Q&A after my talk at the IPS Diversities conference.

Q: To what extent do you think a civic impulse is workable only insofar that we have don’t have religious groups that are seeking to expand?

A: We can tell how open this IPS dialogue is, when we can actually talk about religion, which is a third rail in many societies.

I still think that, despite the worrying rise in aggressively exclusive religious groups around the world that have also inspired groups in Singapore, politically it is not as serious a problem here as it is elsewhere. I study intolerance and hate around the world, so relative to the stuff that is going on in other parts of the world, we are in pretty good shape.

And I’m convinced that one reason why is that no matter how worrying some of these trends are within any one faith group — or more accurately within sub-groups within major religions — there’s a limit to how much damage will be caused as long as those force are not aligned with party political forces. That’s when it becomes very potent elsewhere, when it becomes in the interest of a political party to court and partner with some of these exclusive and intolerant religious movements. And that makes sense in countries with a dominant religion, whether it’s India or Indonesia or Myanmar or the US or most of Europe.

It simply does not make sense in Singapore. A political party could try it, but it would not succeed, because even if you court the 40% Buddhist population out there, you’re going to alienate the 60% that make up everyone else. The same applies to other religions. And that does give us some assurance that there is a limit to how much religious divides can translate into electoral advantage.

Of course politics is more than elections. So religious forces can influence how debates are handled. And yes, in that sense we are in a worrying phase globally as well as in Singapore. For whatever mix of reasons, which sociologists of religion will be better equipped to explain, the centre of gravity in many of the world’s religions is at the more intolerant and exclusive ends of the spectrum.

It’s important to realise that this wasn’t always the case. I’m convinced this moment will pass. It is up to us collectively to make sure this moment passes. It is especially up to those who are the most devout in your respective communities to make sure this moment passes.

It was not too long ago that religious groups were at the forefront of progressive change around the world. Think of the major successes in human rights and democracy over the last 200 years. Most of them were fronted by religious organisations. The Quakers in Britain helped to get rid of slavery. Think of the church’s role in the Philippines’ People Power movement or the American civil rights movement. Think of religion’s role in Indian nationalism, which we benefited from as well. So there is a strong history of religion being on the side of tolerance and expanding human rights.

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It is depressing to see how this strong tradition of religions standing up for the rights of others, including the rights of other faiths, has somehow been relegated, and instead the wind is at the backs of those who are more exclusive. I would urge every person of faith in this room to take personal responsibility to move religion back to where it should be, on the side of right, and on the side of the rights of people.

There are many inspiring stories around the world. In Philadelphia, where I’m now on sabbatical, I visited the leading human rights group that stands in defence of Muslims in in the US, the Council on American Islamic Relations. CAIR in Philadelphia is headed by a white Jewish American, its legal officer is an African-American Christian, and a Muslim is its education officer (main photo). So its three full time employees are a white Jew, a black Christian, and a Muslim immigrant. And they are fighting for Muslims’ human rights. This is what religion is capable of. It is capable of coming together in interfaith struggles to pursue social justice.

One of the proudest achievements of Singapore is to host the world’s oldest interfaith organisation, the Inter Religious Organisation. This is one of the resources we have. Sadly, though, that’s not where the action is, so to speak, in public life. Sadly, the agenda has been seized by a minority of leaders and members within the world’s great faith groups, that are pushing intolerance and exclusivity. That needs to change.

FULL Q&A – VIDEO

 

Rejoice, for this is genuine Rule of Law


October 24, 2018

Rejoice, for this is genuine Rule of Law

Opinion  |  Dean Johns

 COMMENT | Feelings of schadenfreude, the expression for which we’re indebted to German, and is defined in English as ‘pleasure at learning of or witnessing the troubles, failures or humiliations of others’ may not be a terribly noble, but it’s a fact of life that this happens to be one of the many ways in which we humans are flawed.

Or at least I’m happy to admit that I am.

If there’s one class of fellow humans I hate, it’s liars, frauds and fakes. And thus I’m over the moon at the spectacle of former prime minister Najib Abdul Razak, former first lady of Malaysia Rosmah Mansor and current UMNO President Ahmad Zahid Hamidi facing their moments of truth.

Of course, none of them has admitted the truth of the countless charges or masses of evidence against them.Nor, admittedly, as some readers are sure to rightly remind me, are they required to do so, given their right to be presumed innocent until proven guilty.

A situation that is far more generous than prevailed back when fake UMNO-BN “justice’” was meted-out against innocent witness Teoh Beng Hock, who fatally “fell” from a 14th-floor window at MACC headquarters; Scorpene-scandal translator Altantuya Shaariibuu who was shot and then disposed of with C4 explosive and countless “suspects” summarily executed in suspicious “shoot-outs” with the police.

But these UMNO-BN suspects have at least been questioned, investigated, accused and charged, and thus I feel justified in feeling a small frisson of schadenfreude in anticipation of a far bigger one when they eventually face trial and thus the possibility of conviction and imprisonment.

And not just imprisonment, as that would be mere retribution. They should also be required to make restitution to Malaysia and Malaysians of all their fraudulently-acquired assets.

Unfortunately, such a desirable and indeed delightful result is way in the future for the few big fish the law has netted so far, but there are plenty of smaller-fry alleged UMNO-BN fraudsters for the forces of law and order to bring to book and thus sustain our schadenfreude in the meantime.

In fact, many of them, both already and yet-to-be charged, are apparently so incurably addicted to falsehood, fakery and fraudulence as to be beyond redemption.

Najib (centre in photo), for example, had the effrontery, not to mention the deficiency of any sense of irony, to claim that he turned up in court yesterday to lend Zahid his “moral” support.

And for his part, Zahid himself saw fit to engage in his customary fake piety, proposing that the same God he formerly credited with choosing him for high political office is now putting him to a test that he intends to pass by clearing himself of the charges he faces.

‘Trying times’

Meanwhile, as usual, his sanctimonious accomplices and supporters in his alleged preying on the populace were urgently praying and urging others to pray to the same God.

UMNO Vice-President Ismail Sabri Yaakob urged “all Malaysians, supporters and members of UMNO to stand firm (in support of Zahid) and pray.”

Image result for Wanita UMNO Chief Noraini Ahmad

And similarly, Wanita UMNO Chief Noraini Ahmad declared that “the movement was praying for Zahid in hope that God would help him through this (sic) trying times.”

 

Zahid’s wife, Hamidah Khamis  had a somewhat different take on the Divinity’s role in the situation, making the point that “calamities as a punishment from God would hit Malaysia if problems such as the LGBT movement and alcoholic parties” – as well, implicitly as Zahid’s prosecution – “were not prevented.”

All such fantasies on the part of the fraudulent are nothing but further fuel for us schadenfreude fans, of course. But, to finish this column on a more positive note, as dedicated as I and doubtless many others are at seeing as many frauds as possible getting their just desserts, we’re also delighted that lots of genuine people will benefit.

Our honest, upstanding friends in the legal fraternity, for example, who have years of prosecution and defence briefs to look forward to now that the genuine rule of law appears to be back in force.

Not to mention the majority of true, honest-to-goodness Malaysians who have spent so many years waiting, and some of them possibly even praying, for freedom at last from UMNO-BN-style lies, fraud, fakery and also far worse.


DEAN JOHNS, after many years in Asia, currently lives with his Malaysian-born wife and daughter in Sydney, where he coaches and mentors writers and authors and practises as a writing therapist. Published compilations of his Malaysiakini columns include “Mad about Malaysia”, “Even Madder about Malaysia”, “Missing Malaysia”, “1Malaysia.con” and “Malaysia Mania”.

The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.

 

Malaysia’s Attorney-General Tommy Thomas Speaks to Malaysiakini and The Edge –Parts 1& 2


 

October 11, 2018

Malaysia’s  Attorney-General Tommy Thomas Speaks to Malaysiakini and The Edge –Parts 1& 2

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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?

Yes.

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

  Par

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.

AG wants ministries, stakeholders to help speed up law reforms

by Malaysiakini and The Edge team  | 

INTERVIEW | In his first major interview since his appointment as attorney-general three months ago, Tommy Thomas spoke on the mammoth task ahead to amend or repeal a litany of oppressive laws as pledged by Pakatan Harapan.

“A-G’s Chambers has prepared a list of the promises that the PH [Pakatan Harapan] made in the manifesto. The list for law reforms runs to nine pages – so many Acts are mentioned. It is just an unbelievably tall order,” Thomas told Malaysiakini and The Edge in a 90-minute joint interview held at his Putrajaya office last Thursday.

“And it’s understandable because they are trying to clean up after 60 years of one coalition’s repressive laws. Looking at this law reform list in the manifesto, the process may take as long as a decade!” the 66-year-old AG said.

Therefore, he wanted the various ministries and stakeholders to be actively involved in law reforms to hasten the process.

“The ministries must help out. Ministers must push their respective ministries. Let’s take the Universities and University Colleges Act, that’s under Education [Ministry]…

“What we would really want to speed up the process is for the education minister to push his ministry and his legal advisors to prepare amendments and pass them to us. Our parliamentary draftsman will have the final say.

“The reason I say this is because as the stakeholders, the ministry will presumably know more about Universities and University Colleges [Act] than anybody else,” he said.

However, he urged patience as the process may take time.

“As a practising lawyer, I can say that when there’s hurried legislation, it’s not good. The longer it takes, say two to three years, to consult as many groups as possible, the better the finished product is. You would never get the perfect law. [But] everyone should participate in law reform. No one has a monopoly of knowledge or experience.”

Thomas also spoke in detail over the purported lopsided contracts signed by the previous government, and paid tribute to the unsung heroes in the A-G’s Chambers who objected to them, but were overruled by BN ministers.

“Internally, there are hundreds of such contracts. But what we didn’t realise is the number involved. We have highway contracts, services contracts, private finance [initiative] which are build-lease-maintain-and-transfer (46 of them), ports, etc. Many categories – there are over 350 contracts of that nature.

“Also, procurement contracts – we just drew a line – and that’s over 300 contracts of them,” he said about the lopsided agreements.

“Some of these A-G’s Chambers members were very unhappy because when they objected to these lopsided contracts prior to their execution, they were overruled by their former political masters, that is, ministers. They are unsung heroes. They are civil servants, and the previous PM and the MOF [Ministry of Finance] just brushed them aside.

“They are therefore familiar with these contracts. But the trouble is that these contracts have clauses that are very favourable to the counter parties, and unfavourable to the government.

“We are trying to be creative and imaginative. At least two or three times a week, I spend hours with the contracts review lawyers. My corporate commercial litigation experience is combined with the draftsmen and technical advisers in [the] Chambers,” said Thomas.

He also spoke about the absurdity of the previous government in going with such questionable contracts where taxpayers are made to pay more. He gave an example of an actual case of a private finance initiative (PFI) project.

“The cost is RM350 million, over a three-year period. Just like you are building a house, so payment will be against the architect’s certificate – progressively. So after three years, XYZ goes away and receives payment of RM350 million, and we receive the project built for us on our land.

“But under this build-lease-maintain-and-transfer PFI, you have the construction, but you also have a 22-year contract where the government must continue paying for maintenance and other kinds of charges, which are just absolutely ludicrous which does not make any commercial sense.

“The effect of it is that the government (taxpayers) have to pay literally three times more. So in the RM350 million example, taxpayers pay RM1.1 billion over 22 years, as opposed to RM350 million over three years. As the PM has said many times, ‘Whoever did these stupid contracts?’”

Thomas also responded to criticisms he and the A-G’s Chambers faced in dropping the charges on Finance Minister Lim Guan Eng and other Pakatan Harapan-linked politicians such as Deputy Rural Development Minister Sivarasa Rasiah and former PKR parliamentarian N Surendran.

“I think what must not be forgotten is that [the] Chambers did not hide behind the constitutional and legal position in Malaysia from Merdeka that the A-G, as public prosecutor, does not have to explain, or give reasons for a decision to prosecute or to withdraw charges.

“Therefore, although there is no legal or constitutional obligation for public prosecutor to explain why it did not wish to continue with the prosecution against Lim, we nevertheless offered it.

“Instead of being credited for his openness, [Mohd] Hanafiah [Zakaria] was criticised for his lengthy explanation. This is probably the first time since Merdeka that a prosecutor has explained his decision,” he said adding the other cases were dropped because they were politically motivated.

“The right question that should be asked is – and it applies to Lim Guan Eng also – why were these people charged in the first place?

“I inherited a massive problem. In the past three months, my office – and about 90 percent of these are addressed to me personally – received about 300-400 written representations from lawyers and members of public,” he said of the many appeals he received to review the charges.

Thomas also spoke of the brickbats he received on the charging of former premier Najib Abdul Razak’s lawyer Muhammad Shafee Abdullah (photo) last week for money laundering and tax evasion.

“The answer to that is an accused lawyer cannot say, ‘Please do not charge me, I enjoy legal immunity that nobody else in Malaysia does’. All of us from the PM, are under the law, we don’t enjoy immunity.

“An accused lawyer cannot say, ‘Please do not charge me because if you charge me, some of my clients will not have a lawyer of their choice, or they will have problems finding a replacement lawyer’. That is absolutely irrelevant and unacceptable. The law must take its course, regardless of consequences.”

He stressed that Prime Minister Dr Mahathir Mohamad did not know that Shafee was to be charged. “It was absolutely my decision,” he said.

Najib had claimed that Shafee was charged to deny him a chance to get a fair trial.

Here is the second and final part of the exclusive interview. The first part appeared yesterday.

Question: Are you making progress with reforms? All the headlines have been on 1MDB and little have been about reforms.

Tommy Thomas: Yes, as to law reform, AGC [Attorney-General’s Chambers] has prepared a list of the promises that the PH made in the manifesto. The list for law reforms runs to nine pages – so many Acts are mentioned. It is just an unbelievably tall order. And it’s understandable because they are trying to clean up after 60 years of one coalition’s repressive laws. Looking at this law reform list in the manifesto, the process may take as long as a decade!

What would be your priority?

Let me explain. First of all, you need parliamentary time. Parliament must sit longer and give more time for law-making. Parliament has many functions – debates, questioning and so on, but also law-making.

I have told some stakeholders: please prepare your own bills. So if a women’s organisation has complaints, it should prepare its own bill. If the lawyers, the engineers, or whatever, the business community likewise: it’s easier because they know their problems. They can give us their draft laws: whether we accept them is something else.

But if they give it to us, it’s faster, it speeds up the process of law reform. For example, the repeal of the Anti-Fake [News Act] (which is in the news again) [because it was blocked by the Senate], it was done by Gobind [Singh Deo]’s ministry very quickly, and then sent to us. The GST, which is made up of five or six laws, was also done incredibly quickly, coming out of MOF to our parliamentary draftsman.

On the Anti-Fake News Act, a BN senator explained that the repeal was blocked on grounds the law was relevant and should be improved [and not abolished]. Will it be given a second chance to be passed?

Under our Federal Constitution, you can’t do anything for one year.

Yes. Let’s say an IP (investigation paper) comes to you, say the police want to take action against somebody based on this, are you going to take action?

I don’t want to foreclose my discretion if that occurs in the future. But I would be reluctant. I don’t think anyone in A-GC supports it. But it puts us in a difficult position because unfortunately, it is still a law on the statute books. So it still forms part of the laws of Malaysia, and one has to respect our law. Hence, an unsatisfactory position!

[And what happens] after one year?

After that, it has to be re-presented to the Dewan Rakyat, and the Dewan Rakyat has to pass it again. Then it goes back to Dewan Negara, and then they don’t have a say. If they don’t pass it, it will be passed directly to His Majesty, the Agong. But there’s a one-year cooling-off period.

What’s the status in terms of repeal/amendment or whatever of OSA (Official Secrets Act), Sedition Act, Printing Presses and Publications Act, the Universities and University Colleges Act…

The ministries must help out. Ministers must push their respective ministries. Let’s take the Universities and University Colleges Act, that’s under Education [Ministry] I assume. What we would really want to speed up the process is for the education minister to push his ministry and his legal advisors to prepare amendments and pass them to us. Our parliamentary draftsman will have the final say.

The reason I say this is because as the stakeholders, that ministry will presumably know more about [the] Universities and [University] Colleges [Act] than anybody else. The lawyers in our office are just specialists at drafting, but the subject matter or the content of an Act is something that different people would know more of. If there are any health/hospitals-related bills, then it’s better for the Health Ministry, and so on.

The ministries should drive the changes?

Yes, that’s right. Take ownership. Because no one person can do it on his own. My task would be to encourage it and to facilitate it. Because historically, [the] Chambers has had a reputation, rightly or wrongly, as acting as a brake against law reform. We are now going to say, look, we support law reform, we will facilitate it.

But to expect us to draft all this, that is not possible. Because we don’t know all the problems. Like for example, the press, why can’t the press (if you have a press association), why don’t you come and see the right ministry, and say look: ‘This is our version of the new press act’, or whatever. They may or may not agree, but they will say thank you very much. It speeds things up.

That way also, the more the stakeholders there are who are involved.

You said the list itself is a tall order. Are there any going to be prioritised? For instance, the Sedition Act is still being used.

The Sedition Act is more complicated. It requires a constitutional amendment because one of the sections in the Act prohibits criticisms against the rulers: what is regarded as the privileges of the Conference of Rulers. They have to approve. But the others like Prevention of Crime, NSC [National Security Council], Sosma [Security Offences (Special Measures) Act], Printing Presses [and Publications Act], Peaceful Assembly [Act] are easier to handle. Also, the Institutional Reform Committee has done a remarkable job and presented their views to the PM. That is also a source.

What about the Political Financing Bill?

That’s on the way, but I don’t know which ministry is doing the first draft. AGC had advised that is a matter of law, there is no legal prohibition to such a new law. It’s a question of being creative about it.

All the political parties must be governed by the same rules. The objective would be to regularise financing and donation, and to have open disclosure. I don’t know if they want to have a limit on donations. It is basically to recognise that elections can only be held through contributions to political parties and candidates, and it is healthy to accept that this happens. It is the same in other countries.

The PM has said over and over again about lopsided contracts. You are quite an expert in commercial litigation and contracts. Maybe you can share some aspects or some examples, and whether these lopsided contracts can be renegotiated to reduce the financial damage to Malaysia or it’s something that’s totally out of our hands, and we have to deal and pay the compensation.

There are different types of such contracts. Again, the problem is much worse than I thought. As somebody outside following public affairs, one was aware of one-sided contracts, starting with road concessionaires, power plants and the like. But once I’ve come in now, I have seen literally hundreds of such contracts. Let’s divide them into external and internal contracts.

External, you have got Singapore and the HSR [High-Speed Rail]. Whether it’s fair or not, may be a matter of discussion, but I won’t say it’s a lopsided contract. We did well and Singapore was generous by agreeing to the suspension even though the contract did not provide for it. Hence, it constituted a variation of the original contract, which Singapore agreed to. That speaks well for good Causeway relations. That’s the HSR.

Then there’s China. The PM was outstanding. Not many foreign leaders have gone to China and persuaded China to vary its contracts. The PM convinced the president and PM of China. The problem is we have now to look at the consequences of the termination, even if it is a mutual termination by China and Malaysia of these contracts. We have to start hard bargaining on the effects and consequences of mutual termination. That’s a tough proposition. We’re forming teams to prepare for them.

How long will that take?

Hopefully not too long. A lot of money is at stake, and loans are involved. We have already told China we are ready to negotiate.

Internally, there are hundreds of such contracts. But what we didn’t realise is the number involved. We have highway contracts, services contracts, private finance [initiatives] which are build-lease-maintain-and-transfer (46 of them), ports, etc. Many categories – there are over 350 contracts of that nature. Also, procurement contracts – we just drew a line in the review on the value – and that’s over 300 contracts of them. The number is just mind-boggling. All the ministries were doing it. Again, we have a very strong contracts review team and they are reviewing these contracts.

Just within the A-GC? No external help?

Yes, with[in the] Chambers: we don’t need external help. Some of these AGC members were very unhappy because when they objected to these lopsided contracts prior to their execution, they were overruled by their former political masters, that is, ministers. They are unsung heroes. They are civil servants, and the previous PM and the MOF just brushed them aside. They are therefore familiar with these contracts.

But the trouble is that these contracts have clauses that are very favourable to the counter parties, and unfavourable to the government. We are trying to be creative and imaginative. At least two or three times a week, I spend hours with the contracts review lawyers. My corporate commercial litigation experience is combined with the draftsmen and technical advisers in [the] Chambers.

If you are able to achieve some success, it’s a lot of financial savings. right? Ultimately, it’s about dollars and cents.

Absolutely. Like China, we’ll have big savings. Singapore is not so much savings as [the project is] being deferred. That’s the objective of the exercise, the objective is to reduce overpayments.

Let me give you an example of a typical PFI [private finance initiative]. The orthodox way of doing such business would be for the government, as an employer, to ask the private sector, hopefully through tender, but there were no tenders, to build, say, a university.

The government, as an employer, uses the land belonging to it and asks, let’s say, XYZ Sdn Bhd to build the university in, say, three years. The cost is RM350 million, over a three-year period.

Just like you are building a house, so payment will be against the architect’s certificate – progressively. So after three years, XYZ goes away and receives payment of RM350 million, and we receive the university built for us on our land. Then the university opens its doors, and students come in. That’s how it ought to be.

But under this build-lease-maintain-and-transfer PFI, you have the construction of the university, but you also have a 22-year contract where the government must continue paying for maintenance and other kinds of charges, which are just absolutely ludicrous which does not make any commercial sense.

The effect of it is that the government (taxpayers) have to pay literally three times more. So in the RM350 million example, taxpayers pay RM1.1 billion over 22 years, as opposed to RM350 million over three years. As the PM has said many times, “Whoever did these stupid contracts?” That gives an innocent interpretation. There are more sinister interpretations, which you can draw!

To clarify on the Chinese deals that have been terminated. What is the total figure now we have to bargain down from?

I think the press statements suggest RM100 billion or so.

That RM100 billion will be the total cost of the project if it goes on, which includes interest payment on the loan and all that. The actual value is about RM55-RM60 billion for just the ECRL [East Coast Rail Line], but if you put in the interest that has to be paid over the years, it adds up to RM100 billion plus.

It is misleading to say it’s RM55 billion for the ECRL because the people who signed those contracts were the same people who signed the loan agreements with China because we do not have the money to build. Hence, we borrow from China.

So you have to look at the loan agreements, and the loan payments, and the true cost of the project is RM100 billion. It is dishonest to say it is RM55 billion, when it will cost the taxpayers RM100 billion after the loans are repaid. That represents the true cost of the rail project.

I think what the taxpayers would be interested to know now is what’s the cost of compensation? The ECRL, it was reported the compensation could be about RM22 billion.

It’s too early, we have not gone into negotiation. From our point of view, we do not want to pay anything. We should start negotiating from that point.

Do you want to respond to comments from MACC that they were not satisfied when the A-G’s Chambers dropped the case against Lim Guan Eng.

I think what must not be forgotten is that A-GC did not hide behind the constitutional and legal position in Malaysia from Merdeka that the A-G, as public prosecutor, does not have to explain, or give reasons for a decision to prosecute or to withdraw charges. And there’s a long line of cases for 50 years stating just that. They have always said they do not have to give an explanation.

But that is one of the reasons why in the past A-GC was much criticised, especially in the run-up towards the election to GE-14 – I was conscious of that past. Therefore, although there is no legal or constitutional obligation for [the] public prosecutor to explain why it did not wish to continue with the prosecution against Lim Guan Eng, we nevertheless offered it.

Instead of being credited for his openness, Hanafiah [the deputy public prosecutor in charge] (photo) was criticized for his lengthy explanation. This is probably the first time since Merdeka that a prosecutor has explained his decision.

In so far as my personal involvement is concerned, I cannot understand why some do not seem to understand conflict of interest and recusal. Probably the world’s most influential or well-known A-G is Jeff Sessions of the US. Within a week of his appointment, he recused himself from the Russian investigation. You cannot turn on the CNN for the past one and a half years without listening to [US] President [Donald] Trump complaining about Session’s recusal. In his case, it was also because of conflict of interest.

So what I was doing was just following a well-established principle of common law of about 300-400 years history that you must not act when you are conflicted. If you are a private practitioner, you may have many friends and persons you acted for.

Thus, from the time I entered office, any decision concerning Lim Guan Eng is not taken by me personally, just like Jeff Sessions does not act personally.

But it doesn’t render the DOJ [US Department of Justice] or the A-GC helpless and powerless. We have got 545 DPPs, and they make decisions daily. And Hanafiah is a very senior DPP. Hanafiah’s decision, in this case, represents the decision of the public prosecutor.

And you support that [decision]?

My position does not matter. If one recuses oneself, one just has no say in the matter. You remain recused, from the beginning until the end of the decision-making process.

There have been criticisms that MACC should be consulted – that the DPP who’s charging or handling the case should be consulted, like Masri Mohd Daud. At the time, I understand that they were not consulted at all, until about 7.15am.

That is the prerogative of Hanafiah’s decision as the relevant decision-maker. It is up to him. He doesn’t have to consult anybody or keep anyone informed. I believed he explained, in his statement, that he was concerned it would be leaked.

The death penalty, what’s the status of that? There’s some pressure to do away with it.

It is in the Harapan manifesto. It’s going to happen. The good news is that senior officers from the Prison Department informed me that they are against carrying out death sentences on prisoners on the death row. [The] Chambers is also against it. Therefore, no one should be hanged until the new law is enacted.

What about the issue of separating prosecution powers and the fact that you are a legal officer of the government?

We all support that. A constitutional amendment is however required. The Institutional Reform Committee also supports the separation. So no one is against it. It is thus a matter of political calculation: can the government secure the necessary two-thirds majority in Parliament to do it?

How about the criticisms that you’re dropping charges against Surendran, Zunar… etc? It was done quickly and some people are questioning the motives behind these charges being dropped so suddenly. Do you want to respond to these criticisms?

They were all politically-motivated charges. The right question that should be asked is, and it applies to Lim Guan Eng also – why were these people charged in the first place. I inherited a massive problem.

In the past three months, my office – and about 90 percent of these are addressed to me personally – received about 300-400 written representations from lawyers and members of the public.

All those representations relate to decisions made by my predecessors. So the relevant question should be, why did they make those decisions, which require me to look at it. So whatever decisions we make in a particular case – in a sense, it’s like the Court of Appeal – I will be criticized. But coming back to these examples, they were politically-motivated prosecutions. But one thing you can be assured of, I will never charge anyone for political reasons. That I assure you.

When you took up this job, did you expect the kind of criticisms you get, the kind of brickbats you have received?

Yes, and no. I’m surprised by some of the criticisms. The previous A-Gs were criticized, perhaps more by the Bar at their general meetings. I myself have spoken at such meetings of the Bar, where to the best of my memory, all the AGs in the past 50 years have been criticized by the Bar. They haven’t done that so far to me, but that cannot be ruled out.

In my case, it seems to be relentless and unremitting from members of the public. I guess if you compare, I may have received more criticisms in three months than my predecessor did in three years [laughs]! But that’s part of the job, and I can smile about it.

When vested interests are threatened by reform-minded measures, it is inevitable that a backlash would result.

Not being of the expected ethnic or religious group, does it make your job harder in any way?

Not really. The law is intended to be race-free and religion-free. Everyone in Chambers seems to behave that way. They don’t bring race and religion into their decision-making process, so that’s not a problem, really. And I certainly do not. Those who wish to criticize me for ethnic reasons will continue to do so.

Since [Muhammad] Shafee [Abdullah] has been charged, do you want to respond to questions which may be raised: now that Najib’s lawyer has been charged, this is to prevent Najib from getting true justice…?

The answer to that is an accused’s lawyer cannot say, ‘Please do not charge me, I enjoy legal immunity that nobody else in Malaysia does’. All of us from the PM, are under the law, we don’t enjoy immunity. An accused lawyer cannot say, ‘Please do not charge me because if you charge me, some of my clients will not have a lawyer of their choice, or they will have problems finding a replacement lawyer’.

That is absolutely irrelevant and unacceptable. The law must take its course, regardless of consequences.

I think the criticism is coming from the point of view that the charging came immediately or days after he made the revelation that Tun [Mahathir] was the one who pushed for his appointment [as prosecutor in the Anwar Ibrahim sodomy case]. I think people are connecting the dots, that probably the instruction came from somewhere else.

The PM did not know of the charges against Shafee because I did not brief Tun about them. It was absolutely my decision.

About the public caning in Terengganu. It’s unconstitutional as it is not being held in prison and caning women and all that. In this kind of situation, you as a legal advisor to the government, do you have a duty to inform the government that it’s unconstitutional?

It’s not so easy because syariah is a state matter and the Sultan of Terengganu is the head of religion in that state. It’s not so clear. It’s one of those areas where there is tension between the federal jurisdiction on criminal law and syariah law, which is state law.

Furthermore, these are sensitive, delicate matters that must be approached prudently. But I think the caning has started a debate, which is encouraging.

It needs a political solution.

Yes, but again not so easy.

Your position as A-G, should it be an elected position? Should you be answerable to Parliament? What are your thoughts on that?

Actually, we thought about it before. We looked at what happened in the UK which has changed its policy. The least worst option is to have a career lawyer who is sympathetic to the government because he or she has to carry out the government’s mandate, but who is well recognized in some branches of the law, you can’t be in all branches of the law, who enjoy a reputation in the Bar and the Bench.

Thus, a full-time legal advisor is better than a politician A-G.

As to being answerable to Parliament, one cannot give reasons even if one is a member of Parliament on many of these matters. You cannot give reasons if somebody asks you, ‘why did you prosecute Mr A?’

And the next day, ‘why you did not prosecute Mr X, or why did you choose to charge under this Act A as opposed to Act B?’

You cannot answer those questions because some of them are highly confidential. I would say what Hanipah disclosed in his six-page statement is as good as you can get from any AG in the world. So it does not matter whether an AG is an MP for accountability and transparency to occur.

The statement you issued when you appointed Sulaiman [Abdullah] and [Gopal] Sri Ram [as prosecutors in the 1MDB case] was unexpectedly candid. But to your detractors, they’d happily see it as proof that you can’t really cope with the demands of your job. What do you say to that?

I rather be frank and truthful.

And the job has evolved.

The legal world has changed remarkably and the problems are much graver today. If we look at common law jurisdictions – there are very few, if any, where the A-G goes to court anymore. It is just not possible. I think that’s reality.

You said you have not received any IPs on 1MDB, but given the scale and the many transactions, wouldn’t it be fair to say that there will be quite a number of prosecutions in the end?

Yes, definitely. Absolutely.

Are you aware of any state witness? Anyone?

No, because they’re still investigating, we won’t know. Whether MACC or police is talking to Mr X or Mr Y and asking them to turn state evidence or Queen’s evidence against any target, I don’t know. It may come later.

So Sri Ram and Sulaiman will have their hands full?

Sulaiman has only one trial – the SRC – and he has five months to prepare and work with my team. That’s just one case. Sri Ram (photo) is to push 1MDB and perhaps argue in court for two of those cases. Sri Ram will handle the prosecution of Shafee, and probably the first of the 1MDB cases. They’re heavy trials, so we’ll have to find somebody else for other cases. That’s why the task is awesome.

You can expect about five to six different 1MDB prosecutions, against like the [1MDB] board, the Good Star phase, the Tanore phase, the IPIC [International Petroleum Investment Company] phase, all of which you are familiar with. We would have to find a team for each different case.

Sri Ram would be asking for December trial dates in the Shafee case, and Sulaiman has a February trial date [for the SRC case against Najib].

You gave yourself two years when you took up this job. Just two years, that’s it?

[Laughs] I’d be burnt out by then, it’s long hours. I’m fit and fresh now because I know there’s a finishing line. So I’m happy to work hard for one year and nine months more!

Is there more pressure on you when Dr Mahathir said there’d be more charges on Najib?

People have asked me that over and over again. My answer always has been that when it comes to 1MDB, all the 30 million Malaysians should be concerned and talk about it because it affects their pockets for the next 20-30 years. It actually affects their pockets. I think people across the world should also talk about it because it tells you how dishonest politicians and businessmen can cheat a nation.

So I’m all for a full public discussion. But this debate does not influence my decision-making.

Are you getting the pressure from the public?

Most are nice and supportive. They understand. Whenever they see me, they tell me that I represent reforms, which they support. They say I am the face of reform.

I’ve said I don’t want people to be afraid in Malaysia. The fear element must disappear. Much of the fear element emanated from the office of the A-GC. The A-GC must no longer be associated with fear. We are, at the end of the day, 1,200 lawyers and the support staff, who must all believe and practise the rule of law.

That doctrine encompasses a large number of concepts, including free speech, due process and so on. The A-GC must believe them.

You said people are perceiving you as the face of reform. Does that burden you?

I won’t say burden. It’s just very high expectations. I just want to fulfil it. I hope I can live up to them. I won’t see it as additional pressure. I really do not want to disappoint them.