Najib can prove to be a gilt-edged securities yielding handsome dividends.to the Arab Donars
Who says crime doesn’t pay? Certainly not the Malaysian penal system. There is much talk about the criminalisation of politics. Perhaps we should also look at what might be called Najib's government resorting to the ‘politics of vendetta’ has reportedly said “I.am the son of Tun Razak I’m not scared of anyone.” By invoking the name of the former prime minister –Tun Abdul Razak,
It had appeared Najib already laughing all the way to his bank.
BNM's Akhtar Zeti Aziz is certain that there is enough evidence to charge Najib for flouting Financial Services Act and other banking laws but she is not brave enough to do so. She had since pushed the dirty job to the AG's Office and the matter just stopped in there. With Ambank fined RM53.7million, and ostensibly in relation to Najib's account, there is no reason why BNM is unable to take up the case against Najib
In the 1MDB matters, the BNM is the investigative authority. It has clearly completed its investigation. It then prepared an investigation paper and forwarded it to the Attorney -General. In this case, the Attorney-General has chosen not to follow the BNM’s recommendation for charges to be proffered against those responsible for the breaches of the ECA. The BNM asked for a review of the Attorney-General’s baffling and perplexing decision. The Attorney-General stuck to his decision and bullheadedly declared that no offence had been committed.
That decision, in view of the BNM’s findings, is indeed perplexing. It makes a mockery of the investigative authority’s good work. While it is arguable that the Attorney-General does not have to explain the reason for his inaction, clearly his decision in this case, where the investigative authority has deemed it fit to even list out the breaches of the ECA publicly, demands scrutiny from the public and the Parliament. He must answer this mystery and explain himself.
also read this Needed, intelligent Attorney-General not a first-rate hypocriteCan can prove to be gilt-edged securities yielding handsome dividends.to the Arab Donars
“Is the PM Najib is above the law?”
The refusal by the Attorney-General to explain his action or inaction will only deepen the trust deficit that is currently suffered by the government. This will further erode investors’ confidence in our system of governance resulting in capital flights, slide of the ringgit and further downgrading of our sovereign rating as well as international snigger by the international community whenever our country is mentioned, more particularly when our PM champions moderation and the infusion of various Islamic teachings in our governance as well as a “transformation” of this blessed nation.
The Attorney-General must bear in mind that he is not immune from legal scrutiny. In the celebrated case of Rosli Dahlan v The Attorney-General and 11 Others, Justice Vazeer Alam bravely and correctly states:
“I am afraid that the notion of absolute immunity for a civil servant even when mala fide or abuse of power in the exercise of their prosecutorial power is alleged in the pleading is anathema to the modern day notions of accountability.
…..This is in keeping with developments in modern jurisprudence that absolute immunity for public servants has no place in a progressive democratic society.”(emphasis added).
The Attorney-General should be well reminded of the above High Court decision that has since been approved by the Court of Appeal. After all, the Attorney-General was a Federal Court Judge himself. He should also be reminded of his oath of office, lest the oath is just reduced into mere formality that is forgotten as soon as it has been uttered.
Can you expect the country and the world to remain silent when the prime minister is found to have an unaccounted-for RM2.6 billion in his personal bank account just because the scandal is under investigation?also read this So the good name of the Attorney-General's Chambers damaged is it so?Ambank was last month fined RM53.7 million for breach of certain regulations under Section 234 of the Financial Services Act 2013 and Section 245 of the Islamic Financial Services Act 2013 by AmBank (M) Bhd and AmBank Islamic Bhd. Ambank's offence was not specified.
it was established that the RM2.6 billion “political donation” never made it into Umno’s accounts, tabled at the annual general assembly
Najib’s personal income tax records should also be dug up, and compared with the RM2.6 billion which was transferred into his personal Ambank account.
“Ambank was fined RM50 million for a banking offence, but Najib, as the owner of the funds, was not fined anything as far as we know.also read this Attorney-General Mohamed Apandi Ali the idiot and 1MDB scam that won’t die
If this is the case then, like diplomats who can claim diplomatic immunity to avoid prosecution,politicians can claim political immunity to evade the not-so-long arm of the law.
It is this equation of an individual with a political party that is at the crux of the Mahathir accusation not political vendetta against Najib in his stated pursuit of making the country corruption-free’.Najib no impunity go direct to prison also read this Crisis unfolded in asset backed securities
Moral compass AG’s Chambers fixing the courts in any way as they are “beyond fixing”. Bank Negara vs AG’s Chambers
The tussle AG’s Chambers between Bank Negara has taken a toll on the fight against corruption,
1MDB isn't God. It can defy PM Najib Razak's instruction for GLCs (government-linked companies) and GLICs (government-linked investment companies) not to invest abroad and to bring capital home, but it cannot defy the laws of the country.Now we know one of the culprits that's fleeing the country with their capital is 1MDB.If 1MDB is as good as CEO Arul Kanda Kandasamy has been bragging, it should be able to borrow abroad or liquidate its deposits abroad to meet its obligation.Or are they taking out the money for fear that their accounts will be frozen?“The administration of justice in Malaysia – a glaring misconception” (http://art-harun.blogspot.my/2010/11/administration-of-justice-in-malaysia.html) explained how our administration of criminal justice works, or ought to work. Basically, our criminal justice system consists “of four separate, but essential, machinations.” They are the Police or other investigative authorities, prosecution, defence and the Courts. The Police investigates. The prosecution decides whether or not to prosecute and if so, it proffers the charge and prosecute. The lawyers defend the accused. The Courts adjudicate.”
blamed Prime Minister Najib for the "setback" to his government's fight against corruption,
The crowd who attended the forum titled ‘It’s the Constitution, Stupid’, gave Azmi a standing ovation when he entered the hall.Accompanying him at the forum as discussant was former Penang Bar Council chairperson and famous poet Cecil Rajendra, while the forum was moderated by Gerak Budaya Bookshop owner Ismail Gareth Richards.
Moral compass
This clearly shows that there is indeed a political vendetta: A vendetta waged by the political class as a whole against the common citizenry which gets not just short shrift but no shrift at all by lawmakers who see themselves as being above the laws they make for others less privileged than they deem themselves to be.
Tun Dr.Mahathir is right when he questioned why 'the Chosen One' was not charged for breaching the banking laws, when RM2.6 Billions was wired into his PERSONAL ACCOUNT from Overseas.Was the RM2.6 Billions income declared in his personal tax for 2013 to LHDN, when lesser mortals with much, much,much,much,much smaller sum need to declare as income.Tun Dr. Mahathir might be old but is not senile,when pointing out to LHDN and Bank Negara Malaysia,why 'the Chosen One' was not charged, is it because he is indeed 'the Chosen One'as declared by Jerlun UMNO Baru delegate.YB Hishammuddin and Khairy declared that no-one is above the law but it looks like 'the Chosen One' is exceptional.
This clearly shows that there is indeed a political vendetta: A vendetta waged by the political class as a whole against the common citizenry which gets not just short shrift but no shrift at all by lawmakers who see themselves as being above the laws they make for others less privileged than they deem themselves to be.the fact remains that CBI is not an independent agency but a “part of government”, as then-CBI director Ranjit Sinha told the Supreme Court in 2013. The Supreme Court, in turn, called CBI a “caged parrot”. The problem, therefore, is that even if CBI does the right thing it is easy to lampoon with charges of bias. And political storms will escalate, as is happening now.The unprecedented political storm over Delhi chief minister Arvind Kejriwal directly accusing the prime minister of unleashing the CBI on his office, as part of a motivated witch hunt, shines the spotlight once again on the country’s ugly and partisan politics and its apex investigating agency. The central government, of course, has specifically denied all charges. Finance minister Arun Jaitley categorically told Parliament that the CBI raid “has nothing to do with Kejriwal and his tenure as Delhi chief minister” while union minister Ravi Shankar Prasad sought an apology, arguing that a “textbook case of corruption is being given political colour”.
The time has come to reform CBI and make it a truly autonomous body, like the Comptroller and Auditor General or the Election Commission, accountable to Parliament and not to the government of the day. Reforming the CBI’s oversight mechanism, along with much-needed wider police reforms, is a necessity for good governance anyway. If the American Federal Bureau of Investigation were to raid an American governor’s premises, for example, few would blame it on President Obama. This is because FBI’s budgets, activities and lead investigations are also closely scrutinised by several entities, including Congress – through several oversight committees in the Senate and House. India needs similar reforms. Else CBI is destined to remain cannon fodder for politics, whatever be the merits of the case it is pursuing.
In a stunning development yesterday, Bank Negara Malaysia (“BNM”) broke tradition to deliver a very public statement of its obvious disagreement and disenchantment with the Attorney-General over the latter’s failure to proffer charges against those responsible for causing 1MDB to breach the provisions of the Exchange Control Act (“ECA”) 1953.In a carefully, but strongly worded statement on its website, (http://www.bnm.gov.my), the BNM states that it “is duty bound to conduct its investigations with the highest professional care and diligence,” clearly implying that it has done everything that is expected of it in investigating 1MDB over various allegations of wrongdoings where such wrongdoings come within the purview and ambit of the BNM’s functions, duties and powers.
In the same statement, the BNM points out that “the decision to initiate criminal prosecution lies solely with the Attorney-General,” thus implying that the Attorney- General should be solely responsible and answerable for his decision not to charge anybody in respect of these matters.Like any other servant of the nation, no matter how high the position is, no one is above the law or is unanswerable to the nation and the people. The duty to explain can’t be more defined when the investigating authority, after a full and thorough investigation, strongly recommends that charges be filed, not once, but twice and yet the Attorney- General had found it fit to not follow such recommendations.The refusal by the Attorney-General to explain his action or inaction will only deepen the trust deficit that is currently suffered by the government. This will further erode investors’ confidence in our system of governance resulting in capital flights, slide of the ringgit and further downgrading of our sovereign rating as well as international snigger by the international community whenever our country is mentioned, more particularly when our PM champions moderation and the infusion of various Islamic teachings in our governance as well as a “transformation” of this blessed nation.
The Attorney-General must bear in mind that he is not immune from legal scrutiny. In the celebrated case of Rosli Dahlan v The Attorney-General and 11 Others, Justice Vazeer Alam bravely and correctly states:
“I am afraid that the notion of absolute immunity for a civil servant even when mala fide or abuse of power in the exercise of their prosecutorial power is alleged in the pleading is anathema to the modern day notions of accountability.
…..This is in keeping with developments in modern jurisprudence that absolute immunity for public servants has no place in a progressive democratic society.”(emphasis added).
The Attorney-General should be well reminded of the above High Court decision that has since been approved by the Court of Appeal. After all, the Attorney-General was a Federal Court Judge himself. He should also be reminded of his oath of office, lest the oath is just reduced into mere formality that is forgotten as soon as it has been uttered.
Meanwhile, the BNM has taken a step further. It says,
“on its part, the Bank concluded that permissions required under the ECA for 1MDB’s investments abroad were obtained based on inaccurate or without complete disclosure of material information relevant to the Bank’s assessment of 1MDB’s applications.
Therefore, the Bank has revoked three permissions granted to 1MDB under the ECA for investments abroad totalling USD1.83 billion and also issued a direction under the Financial Services Act 2013 to 1MDB to repatriate the amount of USD1.83 billion to Malaysia and submit a plan to the Bank for this purpose.”
In its response, 1MDB apparently has “acknowledged and respected the authority of Bank Negara Malaysia (BNM) to revoke its permissions and to issue any direction it deems fit under the Financial Services Act 2013.” (http://www.thestar.com.my/News/Nation/2015/10/09/1MDB-Bank-Negara-accepts/) However, 1MDB says that it has spent all the money and is not a position to repatriate the money to Malaysia.
In other words, 1MDB has clearly stated its inability to comply with the BNM’s direction. 1MDB has failed to state whether it is willing to look at ways of repatriating the money. The way I read 1MDB’s statement is that it is nonchalant about the whole matter. “I have spent all the money and I don’t have the money anymore and so I can’t pay you.” That is in effect what 1MDB is saying.
So, what can the BNM do next? Fear not. I am sure Tan Sri Zeti (pic above)and the good team at BNM knows their powers. And I am sure further actions will be taken by BNM to deliver the full force of the BNM’s powers and the laws on 1MDB. Rosli Dahlan pointed out to me this very interesting thing today.
The answer lies in the Financial Services Act 2013. This is, among others what it says:
“Section 239 Civil action by Bank
Where it appears to the Bank that there is a reasonable likelihood that any person will contravene or has contravened or will breach or has breached or is likely to fail to comply with or has failed to comply with any-
(a) provisions of this Act;
(b) provisions of any regulations made pursuant to this Act;
(c) order made or direction issued by the Bank under this Act including an order made under section 94 or a direction issued under section 116 or 156, subsection 214(6) or section 216;
(d) standards, condition, restriction, specification, requirement or code made or issued pursuant to any provision of this Act; or
(e) action taken by the Bank under subsection 234(3),
the Bank may institute civil proceedings in the court seeking any order specified under subsection 240(1) against that person whether or not that person has been charged with an offence in respect of the contravention or breach or whether or not a contravention or breach has been proved in a prosecution.
(1) The court may, on an application by the Bank under section 239, make one or more of the following orders:
(a) an order requiring the person to pay an amount which shall not exceed three times-
(i) the gross amount of pecuniary gain made or loss avoided by such person as a result of the contravention, breach or non-compliance; or
(ii) the amount of money which is the subject matter of the contravention, breach or non-compliance,
as the case may be;
(b) an order requiring the person to pay a civil penalty in such amount as the court considers appropriate having regard to the severity or gravity of the contravention, breach or non-compliance, but in any event not exceeding twenty-five million ringgit;
(c) an order-
(i) restraining the person from engaging in any specific conduct; or
(ii) requiring the cessation of the contravention, breach or non-compliance;
(d) an order directing a person to do a certain act;
(e) an order directing the person, or any other person who appears to have been involved in the contravention, breach or non-compliance to take such steps as the court may direct to mitigate the effect of such contravention breach or non-compliance;
(f) an order directing the authorized person, operator of a designated payment system, registered person or market participant to remedy the contravention, breach or noncompliance including making restitution to any other person aggrieved by such contravention, breach or noncompliance;
(g) where a person has refused or failed to comply with any action taken by the Bank under subsection 234(3), an order directing the person to comply with such action that is taken by the Bank; and
(h) any other order deemed appropriate by the court including any ancillary order deemed desirable in consequence of the making of an order under any provision in this subsection.
(2) The court may make an order under subsection (1) against a person-
(a) who is the director, controller, officer or partner, or was purporting to act in any such capacity; or
(b) who is concerned in the management of the affairs, of a body corporate or unincorporate in the event where the contravention, breach or non-compliance has been committed by the body corporate or unincorporate unless that person proves that the contravention, breach or non-compliance was committed without his consent or connivance and that he exercised such diligence to prevent the commission of the contravention, breach or non-compliance as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.
(3) If a contravention, breach or non-compliance is committed by a person-
(a) who is a director, controller, officer or partner of a body corporate or unincorporate, or was purporting to act in any such capacity; or
(b) who is concerned in the management of the affairs of a body corporate or unincorporate,
an order under subsection (1) can be made against the body corporate or unincorporate.
(4) Any sum ordered by the court under subsection (1), shall be applied-
(a) firstly, to reimburse the Bank for all costs of the proceedings in respect of the contravention, breach or non-compliance; and
(b) secondly, to pay persons aggrieved by the contravention, breach or non-compliance in the case of an order under paragraph (1)(f); or
(c) thirdly, to pay into and form part of the Federal Consolidated Fund unless the court orders for such sums or part thereof to be used to compensate persons who have suffered loss as a result of the contravention, breach or non-compliance.
(5) If the authorized person, operator of a designated payment system, registered person or market participant considers that it is not practicable to provide a remedy to the persons referred to in paragraph (1)(f), in view of the amount of any potential distribution to each person or the difficulty of ascertaining or notifying the person whom it is appropriate to provide a remedy, the authorized person, operator of a designated payment system, registered person or market participant shall lodge such amount with the Registrar of Unclaimed Moneys in accordance with the provisions of the Unclaimed Moneys Act 1965.
(6) The court may revoke or vary an order made by it under this section or suspend the operation of such an order.
(7) The powers conferred on the court under this section are in addition to any of its other powers, and do not derogate from its other powers provided under any other written law.
(8) Applications under this section may be commenced at any time within six years from the date on which the Bank discovered the contravention, breach.”
In a nutshell, BNM can sue, by way of a civil action, the persons who fail to comply with its direction to repatriate the money to Malaysia. In that civil suit, BMM may obtain orders for the persons to:
- a) Pay an amount which is three times of any monetary gains made by those persons; or,
- b) Pay an amount which is three times the amount involved in the matter;
- c) Pay a civil penalty in any amount the Court thinks appropriate considering the facts of the matter;
In addition, BNM may also ask for orders that the persons responsible should take step to comply with its direction or to mitigate the non-compliance. This kind of orders will, in my opinion, take the form of a mandatory injunction. The failure to comply with a mandatory injunction will of course expose those persons to contempt proceedings which may be punishable by imprisonment or fines or both.
When the offender is a company (as in this case, 1MDB is a company), all the above actions may be taken against:
“who is concerned in the management of the affairs, of a body corporate or unincorporate in the event where the contravention, breach or non-compliance has been committed by the body corporate or unincorporate unless that person proves that the contravention, breach or non-compliance was committed without his consent or connivance and that he exercised such diligence to prevent the commission of the contravention, breach or non-compliance as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.”
The above provision is very wide in its purview. It appears even if the person is not a director or officer of the company involved, he might still be held liable if he was one “who is concerned in the management of the affairs” of that company. That person however can be excused if he “proves that the contravention, breach or non-compliance was committed without his consent or connivance and that he exercised such diligence to prevent the commission of the contravention, breach or non-compliance as he ought to have exercised, having regard to the nature of his function in that capacity and to the circumstances.”
Let’s wait and see whether the BNM will exercise these powers. Being a civil suit, the BNM can bring the action on its own without the involvement of the Attorney-General. I am sure the firm of Messrs Lee Hishamuddin Allen and Gledhill, of which Rosli Dahlan is a Senior Partner, would be glad to help the BNM. That firm after all, is on the panel of BNM.
No comments:
Post a Comment