COMMENT | Are we seeing the return to the old days when you can rob and get away with it? It looks that the path is laid for the escape of kleptocrats with the Riza Aziz’s case. Is this the forerunner of things to come?
A common thief who is caught for stealing, charged in court and while the trial is ongoing, will he be released without punishment if he agrees to return part of the stolen money? Will the deputy public prosecutor (DPP) say, “You keep the rest and go free?” That would be ridiculous! But that’s what has happened in Riza’s case.
Anyone who commits theft has to be punished regardless of his station. But it doesn’t happen often. The plea bargain that took place between the prosecution and the lawyers for movie producer Riza reminds me of my recent article titled 'Justice: If you are nobody, you’re punished; if you are somebody, you’re tolerated'.
We wonder why there is a need for this plea-bargaining in the midst of the ongoing trial when the prosecution has assumed to have amassed massive evidence against the accused? The prosecution was – without doubt – on solid grounds. They don’t need his cooperation to solve the crime and convict him. So why is the need for him to be discharged conditionally without finding him guilty?
As a layperson, my understanding, as it is for thousands of others as well, is that when the prosecution doesn’t possess enough evidence to go for a conviction, sometimes it offers a plea bargain to a culprit to enhance their case against the other culprits.
The criminal becomes a prosecution or crown witness and gives evidence against his fellow felons which helps to secure a conviction. But this prosecution witness doesn’t go scot-free. He is nonetheless punished, but his punishment will not be as harsh as that suffered by his fellow criminals. Still, he is punished all the same.
Sometimes, to avoid a prolonged trial, the prosecution may agree to charge him on a lesser crime if he pleads guilty. In such an instance, there is plea-bargaining. But the criminal is all the same convicted under the lesser charge, found guilty and sentenced.
In Riza’s case, what is so peculiar that his cooperation is so desperately required that he goes unpunished? Nay, in this instance, looking at the quantum he needs to purportedly pay back under the plea bargain, a quantum less than that recovered by the US Department of Justice (DOJ) after costs, the ancient legal maxim that “no one should be allowed to benefit from his wrongdoing” has been nullified.
What are we actually getting from him? What assets are still in his possession? Isn’t it a fact that his assets have been taken over by the DOJ and that once these assets are put up for sale and sold, the money would be automatically returned to the Malaysian government after the costs of recovery are deducted? That being the case, what other assets are still in his possession that he is now surrendering to us through this plea bargain?
Wasn’t he charged on five counts of money laundering involving a huge sum – US$248 million (RM1.08 billion) linked to 1MDB funds? If convicted under any of the five counts, the penalty is a maximum RM5 million fine or a maximum five-year jail term or both.
Why then are we going for a conditional settlement requiring him to return only US$107.3 million (RM465.3 million), less than half of the sum involved? He isn’t surrendering the entire sum – only about 40 percent of the total sum.
He is let free without a fine or/and a jail sentence. How can that be? If his case had gone on trial, would he have gone scot-free? Clearly, the court’s scrutiny and jurisdiction have been scuttled by not going for a trial. This is not the judicial outcome but an administrative arrangement by the Attorney-General’s Chambers to provide an escape route.
We have every right to be angry, disappointed and frustrated by this deliberate deal to free someone of significance who allegedly had his hands soiled.
The attorney-general must also justify his action instead of claiming that he went along with the view of his predecessor and pin the blame on Tommy Thomas. This is totally unacceptable. Does it mean he accepts and recommends plea- bargaining as the only way out in this case?
The layman in me asks the following questions:
1. Why isn’t Riza punished for his crime?
2. Is a deal necessary for the return of the assets already seized by the DOJ? Wouldn’t it be automatically returned to the Malaysian government?
3. Since the floodgates are already open, do we strike a similar deal with other criminals who steal allowing them to benefit from their wrongdoing?
4. Can a thief who is caught and charged in court opt for plea-bargaining? Can he tell the DPP, “I’ll return half the loot” and expect the DPP to tell him, “That’s great. You keep the rest and you can go free”?
I hope that the many legal luminaries out there will provide some answers.
Many more questions
There is yet another mystery that has to be addressed as well.
”Earlier today, ad-hoc prosecutor Gopal Sri Ram, who read out the application to discharge Riza, did not disclose the terms of the settlement,” read a news report.
The money stolen is public money. Don’t we have a right to know the terms of the settlement reached so that we can know whether any special dispensation had been given to Riza? How is he going to settle it and how long is he given to honour this arrangement? Why is this kept secret? Is national security threatened if full disclosure is made?
And what is the need to implicate Tommy Thomas?
“The plea bargain between the prosecution and movie producer Riza Abdul Aziz was achieved during Tommy Thomas' stint as attorney-general,” said the MACC.
Where is the credibility of this claim? What evidence supports this claim? Would Thomas have given a verbal consent? That is most unlikely. True enough, on May 16, Thomas categorically denied the allegation.
“I resigned two-and-a-half months ago and up to that point, there was no agreement to drop charges against Riza. So, it is wholly untrue and a fabrication to say that I had agreed to the decision,” he said.
In light of Thomas’ angry denial, the AG, the MACC chief commissioner, special prosecutor Gopal Sri Ram and the former MACC chief all need to clarify how and why Thomas’ name was dragged into this scandalous and incredulous deal. Is it possible that Thomas was dragged in to lend credibility to their nefarious arrangement? Malaysians need an explanation.
At the time the plea bargain was accepted, the current AG, Idrus Harun, was in charge of the Attorney-General's Chambers. It was accepted he gave the green light. He should, therefore, accept responsibility for the deal. Idrus was under no obligation to accept any decision allegedly made by Thomas and he was in a position to override that decision. So stop pointing fingers elsewhere.
What will be the future judicial trend? Will this be the trend of the future for cases involving kleptocrats? This is a cunning ploy to avoid the scrutiny of the courts by going into plea-bargaining. Without conviction, without being fined or sentenced to a jail term, culprits will go free while keeping part of the loot. Riza's stepfather, former prime minister Najib Abdul Razak, I suppose, will go free, followed by Riza's mother Rosmah Mansor and the rest.
We cannot allow this disturbing trend to continue unabated. This will destroy our confidence in the judicial process. Justice must not be seen as siding with the rich and the powerful.
There is an urgent need to set up a royal commission of inquiry to unravel the mystery surrounding the plea bargain and to get to the bottom of the truth. Why was the deal necessary? How did the country benefit from it? We call for the setting up of this commission to salvage our dignity and integrity.
My fellow Malaysians, we cannot allow these private arrangements to save those charged from conviction and punishment. This process will make the judiciary an irrelevant and meaningless institution serving no purpose.
If accused persons, in spite of the massive evidence against them, walk out of the court scot-free, the time has arrived for citizens of concern and conviction, people who abhor the mocking of the judicial system, those who truly care for this beloved country, to rise up and be part of the struggle to displace their government in a democratic way.
We must ensure all those MPs who helped an unelected government are defeated in GE15. They must be punished. All those who betrayed our trust and desecrated the democratic tradition must be politically neutered.
We cannot condone their treachery and remain silent. Let’s be motivated by Albert Einstein who said, ”If I were to remain silent, I’d be guilty of complicity.”
The writer is a former Aliran president.
The views expressed here are those of the author/contributor and do not necessarily represent the views of Malaysiakini.