Thursday, April 14, 2016

Lawyers: International probes on 1MDB could see arrests in M'sia

Geraldine Tong

International investigations of 1MDB can result in the charging or extradition of anyone who is found to have committed offences, lawyer Syahredzan Johan said.

"If at the end of the day, they find evidence that persons have committed offences, then they can certainly bring charges.

"Even if those persons are not citizens of that country, just like if there are non-citizens here who commit offences, the authorities here can take action," Syahredzan explained, when contacted by Malaysiakini today.

If the persons are not within their jurisdictions, he said the international investigators would have to explore ways to secure the persons, which may include extradition.

He added that extradition requests can be made for financial crimes as well, though it would depend if there is an extradition treaty between that country and Malaysia.

"If there is no treaty, and if an extradition request is made, then it would be up to the Home Ministry whether to fulfill that request," he said.

He conceded that there are many "permutations" and it would be difficult for him to make any sort of sweeping statement on the state of the law.

"But I can say, if the Malaysian authorities refuse to cooperate with any of the investigations, either by way of a request for mutual legal assistance (MLA) or extradition, it will look really bad on us.

"It would look as if we have got things to hide," he added.

Interpol red notice

Alternatively, fellow lawyer Andrew Khoo said that the international investigators could ask for international assistance to detain the persons and to send them to their jurisdiction through, for example, an Interpol red notice.

He also pointed out that there are two main issues with international investigations such as these.

The first issue is whether a country has the jurisdiction to charge for a particular offence, he said.
"In this day and age, especially for transboundary, international, cross border corruption or money laundering and things like that, most countries now do have the enabling legislation to give themselves jurisdiction to charge for these kinds of offences," he said to Malaysiakini.

A country would have jurisdiction to charge someone even if the person was not a citizen of the country, but the offence had been committed within the country, he said, such as if money transactions went through the country.

Some countries would also have jurisdiction to do so, he explained, if the situation was reversed, where the persons were citizens of that country, although the act was not committed within the country.

The second challenge then, he said, would be actually apprehending the person, even if they might have the jurisdiction to charge them.

"You may have jurisdiction over the crime, but can you get to the person?" he pointed out.

As such, this would require the cooperation of the law enforcement agency of the country where that persons actually are.

While he agreed with Syahredzan that extradition requests would depend on whether an extradition treaty exists between the country and Malaysia, he said that if there wasn't, the persons' lawyers will argue that there is no possibility of extradition without a treaty.

Immunity for heads of gov't

Asked what other steps the international investigators could do if faced with that situation, he said that they would have to wait till the persons travelled to a country that does have an extradition treaty with the country that wants to arrest them.

However, Khoo noted that some countries do grant immunity from arrest to existing heads of state or government.

"But once they step down from office, they lose their immunity," he added.

In response to one of Prime Minister Najib Abdul Razak's lawyers, Mohd Hafarizam Harun, questioning whether the jurisdiction of international investigators extends to a prime minister of Malaysia, Khoo stressed that a corrupt act is a corrupt act, regardless of who committed it.

"Unless that person is claiming sovereign immunity. Even if such an immunity exists in a country, it does not normally extend to acts of alleged corruption," he said.

1MDB is currently the focus of several international probes, including in Switzerland, Singapore, the US and Luxembourg, in relation to suspected misappropriation of funds from 1MDB and allegations of money-laundering.

Last month, the Swiss Attorney-General's Office (OAG) said it was in contact with Malaysia over its request for MLA in the criminal proceeding concerning 1MDB.

The OAG's communication specialist Anthony Brovarone had said that the OAG cannot provide further information on the matter but that they were satisfied with Malaysia's reaction.

Though 1MDB has consistently denied any wrongdoing, they have said that they remain committed to fully cooperating with any lawful authority and investigation.

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