Time to Act Against 1MDB Directors for Dereliction of Fiduciary Duty


May 7, 2016

Time to Act Against 1MDB Directors for Dereliction of Fiduciary Duty

by Kow Gah Chie

http://www.malaysiakini.com

The Finance Ministry and 1MDB should take action against the former board of directors over the debts the state-owned company had incurred, lawyers said today.

They said legal action was needed following the statement that Minister of Finance Incorporated (MOF Inc) had accepted the resignation of the 1MDB Board of Directors that will come into effect on May 31.

Former Bar Council chairperson Lim Chee Wee wants the new Board of Directors to probe the wrongdoings highlighted in the Public Accounts Committee’s (PAC) report on 1MDB that was released last month.

“It needs to probe if there is a case against the directors and management,” he told Malaysiakini in a text message.

“They (Finance Ministry and 1MDB) have a duty to act against the wrongdoers who may include shadow directors.Shadow directors are individuals who are not named directors but whose instructions are followed by the company.If investigations by the new board reveal criminal wrongdoing, then the new board has to lodge reports with the relevant law enforcement agencies,” he said.

Another lawyer, Razlan Hadri Zulkifli, called on the Finance Ministry to mull legal action against the former 1MDB board of directors for possible breach of fiduciary duty.

“Accepting their resignation is not an asnwer,” he said.”The Finance Ministry should consult its lawyer to take civil action if the attorney-general does not want to take crimimal action,” he said, adding that the board members should be hauled up to court if they were sleeping and unable to prevent the fiasco.

“It is quite normal for public-listed companies to sue their former directors,” he told Malaysiakini. PAC has pointed out there were clear-cut breaches of fiduciary duty on the part of the ex-CEO Shahrol Azral Ibrahim Halmi, and on the part of the Board Directors for failure to supervise Shahrol,” he said.

najib duit

Make no bones about it –This Guy belongs in Jail, not Putrajaya

The advisory board might need to be held responsible for its inability in supervise Shahrol’s action, said Razlan.

When contacted, both treasury secretary-general Irwan Serigar Abdullah and 1MDB President Arul Kanda Kandasamy declined to comment.The PAC, in its 106-page report, had identified a number of weaknesses in the governance and decision-making of 1MDB.


 

Malaysia :The Attorney-General is not Above or Below the Law


March 21, 2016

The Bar Council does not do politics

 It is unfortunate that lawyers who are themselves politically active either openly or in private should accuse the Bar Council of acting like an opposition party.

 

By Gerard Lourdesamy

I was amused to read the comments made by two prominent lawyers who represent UMNO and the Prime Minister Mohd Najib Razak and another lawyer who is a DAP state assemblyman in Penang about the censure motion against the Attorney-General (A-G) Mohamed Apandi Ali proposed by three members of the Bar and the judicial review application filed by the Bar Council in relation to the A-G’s failure to exercise his prosecutorial powers against the Prime Minister for alleged corruption.

The Attorney-General is not Above or Below the Law

While they are perfectly entitled to express their views in support of the AG or otherwise, they displayed a certain degree of ignorance about the constitutional position of the AG, the role of public interest litigation by way of judicial review and the role of the Bar Council.

My response to them is :

(a) The censure motion did not originate from the Bar Council but from three members of the Bar;

(b) Unlike political parties like UMNO and the DAP, the Bar Council cannot prevent a motion from being tabled and debated at the Annual General Meeting (AGM) of the Malaysian Bar so long as the requisite notice is given to the Bar Council Secretariat and the motion has a proposer and two seconders. This even applies to motions that are critical of the Bar Council or their leadership;

(c) The censure motion in its purport and effect had nothing to do with the judicial review application filed by the Bar Council against the A-G in respect of his decision not to charge the Prime Minister for alleged offences in relation to the RM2.6 billion “political donation” and the RM42 million from SRC International that mysteriously ended up in his personal bank accounts;

(d) The appointment of the A-G is done by the Yang di-Pertuan Agong under Article 145 (1) of the Federal Constitution on the advice of the Prime Minister;

(e) The Agong is bound to act on such advice as provided for in Article 40 (1) and (1A) of the Constitution;

(f) The appointment of the A-G is not one of the prerogative powers of the Agong, see Article 40 (2) of the Constitution;

(g) If every exercise of power by the Agong under the Constitution is deemed to be part of his prerogative powers, for example the Royal Address that is read at the state opening of Parliament, then we would like Brunei, be an absolute monarchy as opposed to a constitutional one;

(h) The locus standi test for judicial review in the context of public interest litigation has been widened by the Federal Court in the case of Malaysian Trades Union Congress & 13 Ors v Menteri Tenaga, Air dan Komunikasi & Anor where the Court held that in order to pass the “adversely affected” test for judicial review, an applicant has to at least show that he has a real and genuine interest in the subject matter. The Court added that it is not necessary for the applicant to establish infringement of a private right or the suffering of special damage;

(i) Therefore, it would be erroneous to argue that the Bar Council’s judicial review application against the A-G is bound to fail by reason of Article 145 (3) of the Constitution. In fact there are obiter statements of the Privy Council and the Federal Court itself that suggests that in certain exceptional circumstances such a review may be possible;

(j) The sub judice rule is only applicable in criminal and civil cases where there is trial by jury. Otherwise it is obsolete. A single judge having to decide a case based on the law and evidence before him should be astute enough not to be influenced by external and extraneous factors and circumstances;

(k) In any event the application of the sub judice rule to questions asked in Parliament is for the Speaker to decide and not for ministers to pre-empt;

(l) It is unfortunate that lawyers who are themselves politically active either openly or in private should accuse the Bar Council of acting like an opposition party. This accusation is akin to saying that all lawyers who are active in UMNO or the DAP couldn’t care less about the Rule of Law and the interests of Justice;

(m) The Bar Council is only concerned about the Rule of Law and the imperative to do justice without fear or favour. It is a statutory duty imposed on the Bar Council by the Legal Profession Act. The Council is not bothered about lucrative legal fees from the government or government linked entities or a plethora of titles and honorifics or a slew of benefits that accrue to lawyers who very wisely represent and advise some of our politicians;

(n) If our government and its leaders have a tendency to only pay lip service to the Rule of Law, fundamental freedoms and human rights the Bar Council cannot be expected to keep quiet and vainly hope that these issues will be addressed by the government at some later date. I think close to 60 years since Independence is long enough for the government to act wisely and responsibly; and

(o) The A-G honestly knows how and when to defend himself. There is no need for lawyers in private practice who are well connected to the Establishment to comment as if they have been briefed by the A-G to represent him and by extension defend the government from the Bar Council.

Whatever the motives, self-regard and pomposity are not appealing traits in any lawyer, myself included.

http://www.freemalaysiatoday.com

Gerard Lourdesamy has been a practicing lawyer for the last 23 years.

We will sue you, Sarawak Report tells Minister Rahman Dahlan


July 22, 2015

We will sue you, Sarawak Report tells Minister Rahman Dahlan

by FMT Reporters

Editor takes particular offence to Abdul Rahman Dahlan labelling her “scum”.

Dr Mahathir and C BrownSarawak Report yesterday vowed legal action against Barisan Nasional’s strategic Communications Director Abdul Rahman Dahlan, New Straits Times and other publications which have deliberately promoted falsehoods designed to damage its credibility.

It also promised to invoke the criminal process against Lester Melanyi for what it claims was a “vicious criminal libel”. “Usually, we rely on the facts to make our case against detractors and allow readers to decide by comparing those facts with the criticisms against us,” it said in a statement posted on its website which is now hosted on a different URL.

“However, over the past days, certain characters who claim to represent the government and their friendly media outlets have gone too far. They have paraded a sick and discredited individual, who has poured out strings of lies, which none of them have sought to check out, in order to claim this as ‘proof’ that our research was all ‘forged’.”

The whistleblower website claimed that it would normally consider Lester’s concocted story to be “entertaining for being so ridiculous” given the mass of evidence which it says supports all that it has written.

Rahman-Dahlan-Clare-Rewcastle-Brown“But ministers have now used this character and these ludicrous libels as an excuse to order an internet ban on Sarawak Report,” it lamented.

Editor Clare Rewcastle Brown took particular offence with Abdul Rahman for “outrageously” libeling her, in particular by calling her “scum” and labeling the portal’s research as “blatant lies”.

“(Abdul Rahman) has not produced a single shred of evidence that would lead anyone to believe the ravings of the mentally unbalanced bankrupt, Lester Melanyi,” she claimed.

“We therefore accuse (him) of criminal libel, motivated by malicious intent. Despite deciding not to sue Lester, Brown warned “him and anyone who continues to promote his present and future made up stories” of future legal action if they persist.

Rosli Dahlan Vs Gani Patail and Cohorts


July 22, 2015

COMMENT: I have  been following and writing about  theDin MericanUC plight of my good friends, Dato Ramli  Yusoff and Lawyer Rosli Dahlan over a number of years. I continue to be critical about the MACC Chief Commissioner, and the Attorney-General  and former Inspector-General of Police (IGP) and the present IGP.

My view is that they all have acted with impunity and must face the consequences of their actions against Dato’ Ramli and Lawyer Rosli. It is now in the hands of the presiding Judge to decide and deliver the verdict based on all evidence before him.  I am convinced that justice will prevail in the end. These public officials deserve whatever is due to them for failing to do their duty with due diligence and high sense of responsibility. The Attorney-General can tell the Martians that “All actions thereon were taken against the plaintiff (Rosli) premised on and in accordance with the law”. –Din Merican

Attorney-General Gani Patail : No Malice in Lawyer Rosli’s prosecution

 by FMT Reporters

Attorney-General Gani Patail claims had ‘reasonable and probable cause’ to pursue criminal action, but observers are unconvinced.

Rosli-DahlanLawyer Rosli Dahlan

Attorney-General Abdul Gani Patail and his ten co-defendants have labelled as a “misconception” the facts which senior lawyer Rosli Dahlan set out in his statement of claim which the latter says amounted to abuse of power, malicious prosecution and a conspiracy between Gani, former Inspector-General of Police Musa Hassan, current Malaysian Anti-Corruption Commission (MACC) Chief Commissioner Abu Kassim Mohamed and several other Police and MACC officers.

In a joint statement of defence dated July 10 filed in court by the Attorney-General’s Chambers in response to Rosli’s statement of claim, the defendants had claimed that all facts, inferences and implications pleaded by Rosli in his statement of claim could not amount to any cause of action entitling him to bring the lawsuit against them.

“The onus is on the plaintiff to plead clearly a complete cause of action, not merely hurl accusations without basis,” the defence states. “The plaintiff is put to strict proof of each of his allegations.”

The AG and the rest

Gani and his co-defendants also claim that they had “reasonable and probable cause” to pursue criminal action against Rosli as they believed him to be an associate of Ramli. They added that the two notices to Rosli had been validly issued by the MACC under section 32(1)(b) of the Anti-Corruption Act 1997 and that the practising lawyer had failed to comply with the said notices.

“MACC has evidence and proof that show that the plaintiff had a good relationship with Ramli and that he had acted for Ramli in several transactions involving property and companies which Ramli is believed to have owned,” the defence states.

“MACC, therefore, has reasonable cause and evidence to believe that Ramli was involved in corrupt activities and was liable to be investigated under the Anti-Corruption Act 1997.

“All actions thereon were taken against the plaintiff (Rosli) premised on and in accordance with the law,” the defence reads further.

Gani also claims in the defence that the pursuit of Rosli’s prosecution and appeals against the decisions of the courts in respect thereof were entirely matters within his discretion in his capacity as public prosecutor of the federation pursuant to Article 145(3) of the Federal Constitution and that the discretion was exercised after giving due consideration to public policy and were based on the outcome of investigations which had been conducted.

“All actions were taken in good faith and without malice,” he pleads.

Other points raised by the defendants in their defence include that the current action was duplicitous given that it was largely similar to a parallel case presently on-going before Justice Su Geok Yiam in another High Court.

The defendants also claim that the plaintiff is time-barred from bringing the action by reason of the provisions of the Public Authorities Protection Act, 1948. Section 2 of the Act provides that all actions must be commenced within thirty-six months of the accrual of the cause of action.

Observers following both this and the parallel case, however, have expressed surprise and reservations as to the contents of the defence put forward.

They note that a large portion of Rosli’s statement of claim narrates facts and findings which have either already been determined by the criminal courts which heard the prosecution’s case against both Ramli and Rosli or which have already been the subject of much of the testimony already adduced in the parallel case.

In particular, they told FMT that in the criminal case against Rosli, Sessions Court judge Abu Bakar Katar had in his decision delivered on December 20, 2010 found that the prosecution in the case before him had failed to disclose that Rosli was Ramli’s associate. He also said that the notices were issued without basis and that the prosecution had failed to prove that Rosli had intentionally neglected to respond to them.

Apart from that, they say that Utusan Malaysia and the Star have already issued admissions and apologies to Rosli, while the New Straits Times and MACC itself have been found liable to him for defamation and were ordered to pay him RM300,000 in damages, both arising from the publication of matters which are at the heart of the case.

They also suggest that Gani and his co-defendants have put up what is largely a ‘bare denial’ defence, i.e. a defence which merely seeks to put Rosli to strict proof of his averments without offering an alternative version of the events which transpired.

In addition to that, the parallel case has already seen former MACC prosecutor Kevin Anthony Morais admit as untrue allegations that Rosli had acted as Ramli’s lawyer in property transactions.

The defence of limitation raised by the defendants also appears likely to fail as the very same arguments have already been canvassed and were rejected by the Court of Appeal, although an application for leave to appeal to the Federal Court on that decision is pending.

Finally and probably most startlingly, the suggestion that the defendants had reasonable and probable cause to pursue Rosli’s criminal prosecution appears to fly in the face of evidence already given in the parallel case, although no decision has been rendered on it as yet.

Under rules of procedure, Rosli is entitled to file a reply to the defence within fourteen days of service. Thereafter, Justice Vazeer Alam Mydin Meera is expected to issue directions at case management which will lead to the matter coming up for trial.

Gani and his fellow defendants had delayed for some eighteen months in the filing of their defence to the case, much to Rosli’s despair and annoyance.

On May 28, High Court Judge Vazeer Alam Mydin Meera instructed Gani and his co-defendants to file their defence within 30 days. It is understood that the deadline was extended upon requests by Cecil Abraham, who acts as lead counsel for Gani and his co-defendants.

Vazeer will preside over the next case management of the case on July 29.

Gani Patail, Abu Kassim and Gang told to file defence by July 6, 2015


June 30, 2015

Gani Patail, Abu Kassim and 9 others given another 7 days to file their defence

Musa-Hassan_abu-kasim_gani_patail_ramli_600

 Lawyer Rosli Dahlan has given Attorney-General Tan Sri Abdul Gani Patail, Tan Sri Abu Kassim and 9 others who are facing a suit for abuse of power and malicious prosecution, another week to file their defence despite they having missed the court’s deadline.

Rosli’s lawyer Parvinder Kaur Cheema, said her client only gave the defendants a week, instead of two weeks as requested by Gani’s lawyer Tan Sri Cecil Abraham. “The defendants must now file their defence by July 6 following the extended deadline as agreed by both parties,” she told The Malaysian Insider.

On May 28, High Court judge Vazeer Alam Mydin Meera instructed Gani and the rest of the defendants to file their defence within 30 days so that trial could proceed.The judge had also fixed the next case management on July 29

Parvinder said the deadline for the defendants would have expired yesterday. She said Abraham had made a verbal request that the plaintiffs gave them more time since he and his team were moving to set up their own legal firm.

The Malaysian Insider understands that the senior lawyer, formerly with Zul Rafique & Partners, would begin operating his own legal firm sometime in mid-July with a group of lawyers.

RD

Rosli and former Commercial Crime Investigation Department chief Datuk Ramli Yusuf filed suits in November 2013 against Gani and the rest for, among others, alleged malicious prosecution over corruption charges.The courts have cleared them of the charges.

In a landmark ruling in April last year, Vazeer Alam dismissed the application to strike out Rosli and Ramli’s suit, saying the matter must go to trial. Vazeer Alam had remarked that the A-G, who holds public office, cannot escape suits when they involve allegations of abuse of power.

“I am afraid that the notion of absolute immunity for a public servant, even when mala fide or abuse of power in the exercise of their prosecutorial power is alleged, is anathema to modern day notions of accountability,” Vazeer Alam had said.

Both Rosli and Ramli are now claiming damages to the tune of about RM176 million. Ramli, in his RM128.5 million suit, had also named former Inspector-General of Police Tan Sri Musa Hassan and 10 others for wrongfully bringing two charges against him.

Rosli, in his suit, is claiming more than RM47 million for conspiring to arrest and charge him in court over an alleged failure to declare his assets. Rosli named Gani, Musa and Malaysian Anti-Corruption Commission chief commissioner Tan Sri Abu Kassim Mohamed in their personal capacities.

The lawyer alleged that Gani had a role in the malicious prosecution.On April 1, a three-member Court of Appeal bench, chaired by Datuk Abdul Hamid Sultan, also dismissed the defendants’ appeal to strike out the suit.

The defendants then filed a leave application in the Federal Court on April 28 to appeal against the Court of Appeal ruling. Subsequently the defendants also filed an application to stay the High Court order which directed them (on May 28) to file their defence. However, proceedings in the apex court last week had been adjourned to a date to be fixed.

Malaysia’s Attorney-General and 10 others run to the Federal Court for cover


June 25, 2015

Malaysia’s Attorney-General  and 10 others run to the Federal Court for cover

by  V. Anbalagan–The Malaysian Insider

ganipatailAttorney-General Tan Sri Abdul Gani Patail and 10 others who are facing suits for abuse of power and malicious prosecution by a corporate lawyer and a retired police officer, will go to the Federal Court today in an attempt to delay filing their defence.

Court documents sighted by The Malaysian Insider revealed that the 10 defendants want the apex court to stay High Court judge Vazeer Alam Mydin Meera’s order that the case goes to trial soon.

Gani and the other defendants had also filed a leave application at the Federal Court to appeal the decision of the Court of Appeal on April 1, which had upheld Vazeer Alam’s ruling. A five-man Federal Court bench is scheduled to hear the stay and leave applications today.

Lawyer Rosli Dahlan and former PDRM’s Commercial Crime Investigation Director Datuk Ramli Yusuf are objecting to the applications as there were no special circumstances to stay Vazeer Alam’s instruction.

rosli-dahlan2Rosli Dahlan

Rosli (above) and Ramli are also contending that it has been 18 months since the A-G’s defence was supposed to have been filed and this latest move is just a delay tactic to frustrate their claim.

Rosli said he would have expected Gani and the rest to file their defence after both the High Court and Court of Appeal dismissed their move to strike out the suits. “The defendants had filed numerous applications to stall the suits from being disposed of expeditiously,” he told The Malaysian Insider.

On May 28, Vazeer Alam ordered Gani and the other defendants to file their defence within 30 days so that trial could proceed. Rosli and Ramli filed suits in November 2013 against Gani and the rest for, among other things, alleged malicious prosecution over corruption charges.

The courts have cleared them of the charges. In a landmark ruling in April last year, Vazeer Alam dismissed the application to strike out Rosli and Ramli’s suit, saying the matter must go to trial.

Vazeer Alam had remarked that the A-G, who holds public office, cannot escape suits when they involve allegations of abuse of power.

ag-not-above-the-law“I am afraid that the notion of absolute immunity for a public servant, even when mala fide or abuse of power in the exercise of their prosecutorial power is alleged, is anathema to modern day notions of accountability,” Vazeer Alam said.

Vazeer Alam in his ruling had also said he agreed that deliberate abuse of power by those holding public office was misfeasance.

“Such a torturous act can arise when an officer actuated by malice, for example, by personal spite or a desire to injure for improper reasons, abuses his power. This is in keeping with developments in modern jurisprudence that absolute immunity for public servants has no place in a progressive democratic society,” he added.

A Greek PhilosopherBoth Rosli and Ramli are now claiming damages to the tune of about RM176 million.Ramli, in his RM128.5 million suit, had also named former Inspector-General of Police Tan Sri Musa Hassan and 10 others for wrongfully bringing two charges against him.

Rosli, in his suit, is claiming more than RM47 million for conspiring to arrest and charge him in court over an alleged failure to declare his assets. Rosli named Gani, Musa and Malaysian Anti-Corruption Commission Chief Commissioner Tan Sri Abu Kassim Mohamed in their personal capacities.

The lawyer alleged that Gani had a role in the malicious prosecution. On April 1, a three-member Court of Appeal bench, chaired by Datuk Abdul Hamid Sultan, also dismissed the defendants’ appeal to strike out the suit.

TS Abu KassimThe defendants then filed a leave application in the Federal Court on April 28 to appeal against the Court of Appeal ruling. Subsequently the defendants also filed an application to stay the High Court order which directed them (on May 28) to file their defence.

This case is also connected with the on-going trial before High Court judge Su Geok Yim where Rosli has filed a conspiracy and defamation suit against MACC and 12 others officials.