A response from an AGC insider: “It was NOT a sweetheart deal”

Mahag Concerned Citizen

It is blatantly incorrect and wrong for Tun Dr Mahathir Mohamad to say that, “Malaysia had never accepted nor practiced the concept of plea-bargain in which a criminal suspect would offer to help the Government in return for some concession to his advantage.”

Tun M claims that Malaysia has never accepted nor practiced the concept of plea bargaining. However, Section 172C of the Malaysian Criminal Procedure Code (“CPC”) provides for plea bargaining. In Riza Aziz’s matter, there was no plea bargain arrangement pursuant to Section 172C of the CPC but rather a representation dated 18 November 2019 was forwarded by Riza’s defence solicitors to the then Attorney General Tommy Thomas for his consideration.

Also we are not concerned with the concept of plea bargaining in the United States as it has no relevance in Malaysia. Let’s be concerned with our laws and the common practice exercised by both the prosecution and the defence lawyers in criminal matters in Malaysia.

In Malaysia, it is the common practice for a criminal defence lawyers to send letters of representation to the Attorney General Chambers for the consideration by, the Attorney General and/or his Deputy Public Prosecutors. Moreover, it is enshrined in Article 145(3) of the Federal Constitution that, “the Attorney General shall have power, exercisable at his discretion, to institute, conduct, or discontinue any proceedings for an offence…”

Mahathir misled Malaysians

The common practice was confirmed by Tommy Thomas in the article by the Edge dated 16 May 2020 titled, “Ex-AG Thomas Says It Again: MACC Chief Was Wrong To Say Riza Settlement Agreed To By Him” where he was reported to say:-

written representations are received by AGC on a daily basis from lawyers acting for the Accused facing criminal trials and the appeals. Hence, there was nothing sinister about the sending of representation by Riza’s solicitors.

Moving forward, in response to Tun M’s baseless comment that, “the plea bargain is not about returning stolen money. Most certainly it is not about returning less than half the money stolen”.:

a) Firstly, the acceptance of the representation was not pursuant to a plea bargain.

b) Secondly, there is no finding by any Court in the United States that the assets which were the subject matter of the civil forfeiture proceedings in the United States were in fact stolen. As such, Tun M’s statement is wide of the mark and it is a purposeful attempt to provoke the public.

c) Thirdly, in the Complaints filed by the Department of Justice of the United States (“DOJ”), the DOJ never claimed that Riza stole money.

Tun M said that the money would, by agreement with the previous Attorney General, be returned to Malaysia. Perhaps Tun M was incorrectly briefed by his ex-Attorney General, Tommy Thomas because both of them are under the misguided assumption that the assets that were seized by the DOJ were to be returned to Malaysia as of right. This is entirely untrue and an intentional statement to mislead and incite the public.

For the record, the assets that were seized by the DOJ are the subject matter of civil forfeiture proceedings in the United States which Riza has been contesting for the last 5 years. Now that Riza has agreed to relinquish his rights to those assets, only upon agreement by the DOJ, would those assets be repatriated to the Government of Malaysia. It is disrespectful for Tun M and Tommy Thomas to treat the DOJ as a collection agency.

Moreover, if Riza had continued his claim in the civil forfeiture proceedings in the United States and won those proceedings, the Government of Malaysia would have potentially received nothing. In fact in an article dated 20.5.2020 by FMT titled “Riza Aziz’s Money Laundering Settlement: The MACC Inside Story” (“FMT Article”) a source from the MACC who took part in a series of negotiations with the DOJ said: “If such a settlement does not take place, it will be almost impossible for the Malaysian government to recover assets and properties linked to 1MDB”.

Tommy Thomas says he would never accept a representation from Riza as he would not betray the PM and the PH government

What is shocking, is that Tommy Thomas in his press statement dated 18 May 2020, says he would never accept a representation from Riza as he would not betray PM and PH government. But in the FMT Article, a source from MACC confirmed that this is not the case. In fact, he refers to a minute from Tommy Thomas to a senior Deputy Public Prosecutor, Datuk Seri Gopal Sri Ram wherein Tommy Thomas says he is prepared to consider the representation and sought the advice from Datuk Seri Gopal Sri Ram.

It is unfortunate that Tommy Thomas’ lapse of memory resulted in a storm of outrage. Perhaps this self-proclaimed constitutional law expert and human rights advocate was so eager to please the ex-PM and PH Government, that caused him to conveniently forget.

In relation to the decision to accept the representation, Tun M made a remark that all the people involved in making this decision are protesting that they did not make the decision and as such, something must be wrong. Since his ex-AG, Tommy Thomas was prepared to consider the representation, then, obviously nothing is wrong. It is the same representation submitted to Tommy Thomas on 18 November 2019 which Tommy Thomas was prepared to consider.

Tun M and Tommy Thomas have also conveniently forgotten that Datuk Seri Gopal Sri Ram, one of the most respected professionals in the legal profession in Malaysia, was one of the decision makers tasked to consider Riza’s representation. Therefore, in light of the decision, evidently there were strong reasons why the representation dated 18 November 2019 was accepted.

Furthermore, in the article dated 18.5.2020 by FMT titled “Ex-AG Thomas Confirms Writing On Riza’s Settlement, But Says Won’t Betray PH Trusts”, Tommy Thomas has again misled the public by citing a wrong punishment in respect of the charges proffered against Riza by relying on the wrong Act.

Riza Aziz was never charged for stealing money

Riza was charged under Anti-Money Laundering and Anti-Terrorism Financing Act 2001 wherein the Act provides for a lesser punishment. Also, Section 92(1) of this Act allows the Public Prosecutor to compound offences.

The public should not be outraged with Riza or the current Attorney General, Tan Sri Idrus Harun or the Malaysian Anti-Corruption Commissioner, Datuk Seri Azam nor with Datuk Seri Gopal Sri Ram. Rather, the anger should be completely targeted to Tommy Thomas who has not only concealed the truth and misled the public. But it can also be garnered from Tommy Thomas’ press statement that the charges proffered against Riza was a political prosecution as observed by the MACC source in the FMT Article wherein the source says “Tommy Thomas was also demeaning the AG’s office in saying he would not betray the former prime minister and PH’s trust. Why does he keep referring to himself as PH’s AG? That’s improper and shows political bias.”

The public should be appalled and angry in light of the way Tommy Thomas and Tun M have incited them by intentionally distorting the facts by feeding the public with falsehoods. As stated by the MACC source in the FMT Article “The focus then and now was to recover as much money as possible. All this was done under the former AG. So why does he now suddenly feign ignorance?”

Tun M is correct; the new government of Malaysia is supported by the people because the people have acknowledged that his PH government severely failed to serve them. The PH focus then and now is just to incite hatred by spreading lies. So, instead of inciting hatred towards this government, sit back and enjoy watching its success.

Tun M is also spot on, when he says the whole world is laughing at Malaysia, but their laughter, Tun M, is at how your PH government only lasted 21 months after over promising a new Malaysia that never was.

Although Tun M in the article dated 9th April 2020 in the Straits Times Singapore, titled, “Missteps and Legitimacy Issues Undermine Malaysia’s Global Recovery Of 1MDB Funds,” he warned that the US should ‘think twice’ before returning 1MDB funds to Malaysia. The US Government didn’t need to think twice because only 6 days later the US Government repatriated USD300 million (RM1.29 billion) to Malaysia. This was a warming sign that the US Government accepts the new government headed by its new Prime Minister, Tan Sri Muhyiddin Yassin.

But, don’t be down Tun M. You have your supporters, amongst them, Tommy Thomas a loyal and obedient ex-AG, who claims he would never betray you and your PH government.