Mahathir may face a RM200 billion-counterclaim


But what is more interesting is the precedence it is going to set because this would now mean Mahathir can also be sued for what he did when he was Prime Minister for 22 years. Or a counterclaim can be filed in this same suit that Mahathir has filed and the counterclaim can come to at least RM200 billion and even RM300 billion if Najib’s lawyers do their homework properly.


Raja Petra Kamarudin

Two days ago, Tun Dr Mahathir Mohamad (and two others) filed a suit against Prime Minister Najib Tun Razak for allegedly interfering in the government investigation into 1Malaysia Development Berhad (1MDB) and for the political donation of RM2.6 billion, which he received from an Arab donor.

Mahathir’s lawyer, Mohamed Haniff Khatri Abdulla, said, “This suit is with regard to the tort of misfeasance in public office and tort of breach of fiduciaries in public office committed by Najib Razak in furtherance of his corrupt practise of carrying out various steps that were actively and deliberately taken in bad faith and with mala fide to obstruct, interfere, impede and derail the various investigations and inquiries which were being conducted by various legal enforcement agencies and statutory bodies pertaining to the allegation of the above.”


The key issue to note here is that the suit is regarding ‘tort of misfeasance in public office’ and ‘tort of breach of fiduciaries in public office’. ‘Misfeasance’ means an act that is legal but is performed improperly and describes a situation where an act by the defendant, though legal, causes loss, harm or injury to the plaintiff.

A ‘fiduciary’, on the other hand, is a person who holds a legal or ethical relationship of trust with another party or parties. In such a relationship the fiduciary is required to act at all times for the sole benefit and in the interest of the one rendering that trust.

The issue, of course, is whether Mahathir has locus standi because this is not a class action suit but very specific regarding a loss, harm or injury that he has personally suffered. And Mahathir needs to prove the extent and financial implications of this personal loss, harm or injury.

Yesterday, Dr Mahathir claimed that he is personally affected by Najib’s alleged abuses. In the 37-page Statement of Claim, Mahathir cited the police investigations against him and his removal as Petronas adviser as examples of abuses he has personally suffered.

Mahathir (and even Anwar Ibrahim as well) has always said that the Prime Minister does not make sole decisions but that the Cabinet makes collective decisions on all matters. So the Prime Minister cannot be held solely responsible but the Cabinet takes collective responsibility. This is what they have been arguing for decades.

So, since the Cabinet decided not to renew Mahathir’s contract with Petronas, should it not be the entire Cabinet and not just Najib that gets sued? And then the Petronas Board decided that since the Cabinet has decided not to renew Mahathir’s contract then Petronas, too, will do the same. So should not the Petronas Board, the party that actually did not renew Mahathir’s contract, get sued as well?

Anyway, Mahathir’s contract had expired and there is nothing in the contract that says the contract must be extended. It is not mandatory. Or is it a contract in perpetuity, which means it must be extended indefinitely as long as Mahathir still wants to be the adviser of Petronas? Mahathir needs to prove in what way a law may have been broken or a contract may have been violated by not extending his contract.

What is even more interesting is that Mahathir may be opening a Pandora’s box or may be setting a precedent with his suit. Yesterday, Radovan Karadzic was sentenced to a 40-year jail sentence for what happened in Srebrenica 21 years ago in 1995. That means, as long as you were in charge at that time, then you are guilty of what happens in the country.

So yesterday’s development and Mahathir’s suit are going to open the floodgates for more civil suits to be filed against people in power about what happened in the country when they were in charge. In 2004, Time Magazine quoted Daniel Lian, a Southeast Asia economist at Morgan Stanley in Singapore, saying that the country might have lost as much as RM400 billion since the early 1980s (that means when Dr Mahathir took over as Prime Minister) to corruption.

I actually hope Mahathir wins his case. No doubt Mahathir is claiming RM42 million (regarding the SRC case) and RM2.6 billion (regarding the donation) and whatever else the court sees fit regarding 1MDB (RM42 billion). That is the claim. However, proving the claim is one thing — and what the court may actually agree to in terms of damages is yet another thing.

For example, you may claim RM100 million but the court may award you just RM4.5 million, like in Anwar’s case. Or the court may reject your case entirely, also like in Anwar’s RM100 million-suit against Mahathir.

But what is more interesting is the precedence it is going to set because this would now mean Mahathir can also be sued for what he did when he was Prime Minister for 22 years. Or a counterclaim can be filed in this same suit that Mahathir has filed and the counterclaim can come to at least RM200 billion and even RM300 billion if Najib’s lawyers do their homework properly.

The country and Umno suffered an estimated combined loss of RM200-300 billion since Mahathir took over as Prime Minister in 1981 and the losses are still climbing. For example, Proton and MAS are still bleeding and it is probably going to cost the taxpayers another few billion before they stop bleeding (unless Proton and MAS are sold off or closed down to save further agony).

The list of losses and disasters under Mahathir’s time is actually quite long and pretty sizeable. The 1980s Bank Bumiputra twin scandals come to about RM10 billion at today’s value (which Petronas had to pay for). The Maminco disaster is about RM5 billion (I am also using today’s value). The Forex losses were RM55 billion. Perwaja is another RM15 billion.

According to Barry Wain, the author of ‘Malaysian Maverick: Mahathir Mohamad in Turbulent Times’, the direct financial losses amounted to about RM50 billion. This then doubles once the invisible costs, such as unrecorded write-offs, etc., are taken into account.

For example, the bailouts and compensation for PUTRA, STAR-LRT, PKFZ, toll highways, and so on, come to another RM50 billion or more. Hence Barry Wain’s estimate of RM100 billion is actually quite a conservative estimate. It can actually come to RM150 billion or even RM200 billion if a proper audit is done and if based on today’s value and not the value of 20 or 30 years ago.

Anyway, any qualified or competent accountant would need only a day to list down the details because the details are not confidential but are on public record. What is the more important issue here is that with Mahathir’s filing of the suit against Najib two days ago a counterclaim or similar suit can be filed against Mahathir.

Of course, there is the issue of statute of limitations but then in cases of human rights there is no statute. And losing RM200-300 billion, the money that could have gone to paying for the building of hospitals and finance the granting of free medical treatment to millions of Malaysians, is a violation of human rights because many Malaysians have died due to the denial of proper medical facilities.

And the claim against Mahathir under ‘tort of misfeasance in public office’ and ‘tort of breach of fiduciaries in public office’ would be no less than RM100 billion and probably even RM150 billion or more.

But that would only cover the RM42 million SRC and 1MDB part of Mahathir’s suit. Then we have the RM2.6 billion donation part of Mahathir’s suit. First of all, the money did not come from the government but from the Arab donor. So in what way has Mahathir personally suffered loss, harm or injury? Secondly, the money is for Umno and Mahathir is no longer an Umno member. So in what way has something that involves Umno caused Mahathir to suffer loss, harm or injury?

And if Mahathir wins his case would the RM2.6 billion go to him or would it go back to the Arab donor? And I believe quite a portion of that RM2.6 billion has actually already been returned to the donor so it is no longer RM2.6 billion.

Umno is estimated to have suffered a loss of not less than RM100 billion and probably even RM200 billion because much of Umno’s cash, assets and investments are being held under trustees, nominees and proxies. And Mahathir refuses to hand this RM100-200 billion back to Umno.

So Najib can now sue Mahathir or counterclaim against Mahathir’s RM2.6 billion claim between RM100 billion to RM200 billion. Again, any qualified or competent accountant can sort out the details in just a day because everyone knows which companies and businesses belong to Umno but are parked under the names of trustees, nominees and proxies.

The AP business alone can come to that amount (which Malaysians end up paying for with the high prices of cars). What about all the other Umno companies and businesses that are parked under the names of trustees, nominees and proxies?

If the court rules that Mahathir has locus standi and that his suit can proceed, then the door would be open for Najib to also sue Mahathir or counter-claim against Mahathir’s Statement of Claim. And while Mahathir is claiming RM42 million, RM2.6 billion, plus whatever the court sees fit regarding 1MDB, Najib’s claim or counterclaim will be at least RM200 billion or probably even RM300 billion.

I am no lawyer or accountant but even I can advise Najib on how to go about this claim or counterclaim. All we need is for a precedence to be set and based on this precedence the door would open for Najib to launch his own suit against Mahathir. After all, laws work based on precedence, do they not? And Mahathir will be the one setting the precedence for Najib to follow.

What is that about sauce for the goose is sauce for the gander? I would rather say ‘the knife cuts both ways’ or ‘those who live by the sword die by the sword’. Or do you prefer ‘poetic justice’, ‘what goes around comes around’,‘karma’, etc? Anyway, you know what I mean.