Ahmad Zahid Hamidi, How Dumb and Ignorant Can You Be on Malaysia's Commitment to UNCAC
Monday, May 28, 2012

The Scorpene scandal and the long arm of the law

Andrew Khoo

(Andrew Khoo is a practising advocate and solicitor)

WHEN it comes to an issue like corruption, nations have long since accepted that it cannot be combated single-handedly. A significant milestone in cooperation was when the General Assembly of the United Nations (UNGA) in New York passed the United Nations Convention against Corruption (UNCAC) on 31 Oct 2003.

Shortly after, Malaysia signed the UNCAC on 9 Dec 2003. The UNCAC came into force on 14 Dec 2005. We then ratified it on 24 Sept 2008.

As a party to the UNCAC, how well do our government ministers understand Malaysia’s obligations under this international treaty and local laws on international cooperation on criminal matters?

Defence Minister Datuk Seri Ahmad Zahid Hamidi’s recent snubbing of the inquiry by a French court into the Scorpene submarines scandal suggest ignorance, at the very least.

Scorpène Class Malaysian Navy submarine "Tun Razak" in the shipyard of Navantia-Cartagena (Spain) few days prior to its delivery.

How UNCAC works

Under the UNCAC, state parties agree to cooperate with one another in every aspect of the fight against corruption, including prevention, investigation, and the prosecution of offenders. State parties are bound to render specific forms of mutual legal assistance in gathering and transferring evidence for use in court and to extradite offenders.

There is a provision whereby state parties that do not have extradition treaties with each other may use their common membership of the UNCAC as the basis for any extradition request. They are also required to undertake measures which will support the tracing, freezing, seizure and confiscation of the proceeds of corruption.

Another over-arching trend in the international fight against transboundary issues is universal jurisdiction. A country can bring to trial and prosecute in that country, those accused of having committed a crime in another country.

An area relatively new to Malaysia, we are only beginning to adopt universal jurisdiction through recent amendments to Section 4 of the Penal Code. This expands the scope of extraterritorial offences to include damage to property belonging to, or operated, or controlled, not just by a Malaysian federal or state government, but also to a Malaysian company or individual located outside Malaysia.

This addresses our lack of laws to prosecute offences such as the hijacking of a Malaysian privately-owned (but foreign-flagged) ship by Somali pirates in international waters.

Ignorance or lack of political will?

Zahid Hamidi

Bearing this in mind, Ahmad Zahid’s response to the possibility of being subpoenaed to appear in a French court to answer questions about the Scorpene affair is surprising for a number of reasons. France is also a signatory to the UNCAC, having signed it on 9 Dec 2003, and ratifying it on 11 July 2005.

The investigation by the French courts into allegations of transboundary corruption in the purchase of two Scorpene submarines by Malaysia would be precisely the kind of issue that UNCAC and universal jurisdiction are intended to address. By ratifying the treaty, Malaysia has signified to the world our willingness to submit to an international framework of cooperation in this regard.

The Defence Minister’s comments, then, seem totally out of line with our international obligations.

Ahmad Zahid reportedly said, “Why should I appear? I am not a witness! If I appear, who will pay for my expenses? I don’t want to use my money and the government’s money.”

In so doing, he clearly revealed his lack of familiarity with the Mutual Assistance in Criminal Matters Act 2002. Part II of this Act deals with requests to Malaysia by foreign governments. In particular, Section 27 of the Act deals with requests for attendance of a particular person in another country to give evidence or assist in a criminal matter there.

Malaysia’s Attorney-General can be requested by foreign authorities to arrange for the person to attend such proceedings. Section 19 specifically requires the Attorney-General to confirm that “allowances” and “arrangements for security and accommodation for the person” are to be made by the requesting foreign authorities.

So really, Ahmad Zahid need not worry about spending his own money or that of the Malaysian Government. France would pick up the bill, merci beaucoup.

Ahmad Zahid’s own ignorance aside, Malaysia’s attitude towards the Scorpene probe is also an issue of political will.

Even though France is not a “prescribed foreign State” pursuant to Section 17 of the Act, Section 18 of the Act allows the Attorney-General to give special direction in writing for the Act to apply to that state. There is room for ad-hoc cooperation with France, if the Attorney-General recommends it and if the minister in charge of law agrees.

International perception

Malaysia could still refuse to entertain a request from France and would have grounds to do so in Section 20 of the Act. These include:

Section 20(1)(g): the facts constituting the offence to which the request relates does not indicate an offence of sufficient gravity;
Section 20(1)(h): the thing requested for is of insufficient importance to the investigation or could reasonably be obtained by other means;
Section 20(1)(i): the provision of the assistance would affect the sovereignty, security, public order or other essential public interest of Malaysia.

However, Malaysia should be cautious of how a refusal would be perceived by the international community in such a high-profile case. Care must be taken not to give a wrong impression.

No doubt, the Act contains complex provisions which include the voluntariness of a witness to travel to another country to assist in a criminal probe. The details of the Act’s provisions are beyond the scope of this article but suffice to say, the Minister of Defence should not have been so quick and glib in his reaction.

Provisions do exist in Malaysian law to send him for an all-expenses-paid trip to Paris. He should seek legal advice.

Had he done so, he might have not been so glib again with his latest reaction — “Who are they to issue a warrant of arrest? We are not subjected to French laws.”

‘Red notice’ option

There is still the possibility that France could request countries, with which it has a mutual assistance in criminal matters agreement, to detain Ahmad Zahid and deliver him to Paris.

This could happen should Ahmad Zahid travel to any such country or to any country which is a member of the European Convention on Mutual Assistance in Criminal Matters. No doubt he would then have to fight it, just as, under different circumstances, Julian Assange is currently fighting his extradition from the United Kingdom to Sweden.

It is open for the French courts, if Ahmad Zahid refuses to answer a subpoena, to upgrade that subpoena to an international warrant of arrest, and to seek the assistance of Interpol to effect it.

This is known as a “red notice”. Whether the French would actually do that is a tale for another time.

Posted by Malaysian Unplug @ 15:12,

6 Comments:

At 28 May 2012 16:14, Franco said...: The Scorpene Gate.Will be the downfall of Najib.He is vary nervous.I met a friend in London?he is a Singaporean.He told me The Singaporean Interlligent had a record of Najib and The Mongolian model during his visit to the jewellary fair in Singaporae.
You dont underrate the French Authority?during their invertigation they have discover a lot of info regarding the moverment of money transfer?.

I heard the Model also like to Russian KGV.?

Wow.
At 28 May 2012 16:47, cin2tan said...: UNCAC ...everyone is ignorant of it. MAY BE the ministers are pretending la !
At 29 May 2012 14:35, Anonymous said...: French court : I'll be calling you ....O OO OOO !
At 10 June 2012 11:40, yapchongyee@Gmail.com said...: I'm more of the opinion that poor Ad is a victim of his own ignorance.

What would you say if 3 COURT OF APPEAL judges were ignorant of the LAW; as in my case which M/S Lim & Hoh the appellant appealed against me on a judgment delivered by the trial judge Zabaria !

My case had only one issue "CAN PARTNERS OF A LAW FIRM SUE IN THE FIRM'S NAME ?" The Answer is NO ! Read my opinion on my video talk show on both facebook and YouTube !

Facebook=yapchongyee
YouTube=yapchongyee1

yapchongyee@Gmail.com
At 23 June 2012 08:12, Malaysia Baru1 said...: Tindak Malaysia - Towards a 2-Party State System and A Fairer Deal for All.

Then again it's almost common knowledge that illegal immigrants from India and Indonesia in particular, are granted citizenships within 6 months - 2 years coming into the country! (Now your Great Grandparents from China who have been here for umpteenth years are still red I.C holders!) with the criteria that they convert to Islam and be Umno members.

This is to ensure that the Umno-led BN Govt. have sufficient votes to overcome the ever-increasing new generation of dissenting, disiilusioned & discontented, highly educated & knowledgeble newly registered voters for the next G.E. due in 2013 or earlier!

How many 50 years in a man's life span?

What 1Malaysia? You think Tunku's time NO 1Malaysia? Merely Slogans & lip-service only lah! Najib is forced to REFORM becoz' like he admitted, "it'll be political-suicide NOT to REFORM!"

So Govt. of the day (Servants), NO choice but to LISTEN & WORK for the tax-payers! (Masters) i.e. if they still appreciate & remember who are paying their salaries & elected them to their posts in the Govt.! Kata Tak Nak kepada BN! (Barisan NAJIS! Barisan NERAKA!)

If it's TRULY 1Malaysia, I would like to ask the Honourable PM Najib, "Can a Non-Malay be the PM of Malaysia one fine day? That is THE question everyone should be asking, IF you are so Damn Proud to be a citizen of this Country?

In my lifetime, I may not get to live to see a non-Malay PM, but for my children's generation they could all live to see a Chinese, Indian, Punjabi, Bajau, Kadazan, etc gets elected by the People to be PM of MY!

Now, this is truly democracy as enshrined in the Constitution, truly 1MY! Thank GOD! Bless you Good People!

For this historical event to take place, we as responsible, law-abiding citizens, must make a wise decision to vote for a corruption-free Govt - PR Govt.

The PR Govt cabinet line-up comprises of the PM (PKR) , 4 Deputy PM's - respectively 1 each from PKR, DAP, PAS, Sabah SUPP.
When the new Govt of the day is set in motion, then it will naturally evolve & a non-Malay PM will take his rightful place!

On the other hand, if UMNO-led BN Govt were to desperately clings on to power, then change will Never Ever happen in 1000 years! Malaysial!

http://www.tindakmalaysia.com/threads/1806-Tindak-Malaysia-Towards-a-2-Party-State-System-and-A-Fairer-Deal-for-All
At 24 July 2012 22:47, Anonymous said...: WE are indeed living in a dangerous world. Every man has a price.