KUALA LUMPUR, May 19 — Several prominent lawyers have criticised the Malaysian Bar president today for making an unclear statement on the recent deal to drop money-laundering charges against film producer Riza Shahriz Abdul Aziz.
The lawyers, including J. Armadas, Ng Kong Peng and former Bar presidents Datuk Kuthubul Zaman Bukhari, Datuk Ambiga Sreenevasan, Ragunath Kesavan, Yeo Yang Poh, and Lim Chee Wee, said that incumbent president Salim Bashir failed to make a point.
“The Malaysian Bar should not make media statements when it has nothing useful to contribute; or when it is unwilling to take a clear and principled stand,” they said in a statement.
Referring to Salim's statement “Legal Issues on the Granting of a Discharge Not Amounting to Acquittal of Riza Aziz”, the lawyers said that it provided no insight into whether or not the exercise of discretion in this instance has met the required standard.
“That statement curiously avoids these burning questions; uncharacteristic of a Bar admired for its fierce and fearless independence. If the Bar president, in representing the Bar, is of the view that the discretion has been correctly exercised in this instance, he should say so clearly and give cogent reasons.
“If he is of the view that the discretion has not been correctly exercised, he should similarly state his stand unequivocally and supported with valid reasons. If the Bar president feels that the available information is not yet adequate to enable him to form a reasoned opinion then he should either have restrained himself from speaking, or else explained what additional information may be required before the Bar could come to a reasoned assessment,” they said.
Calling Salim’s statement “superficial” and “ill-conceived”, the lawyers said that remarks like “such a discretion must be dictated by wisdom, relevant consideration and driven by facts and public interest” are tantamount to not saying much at all.
“It provides no insight into whether or not the exercise of discretion in this instance has met the required standard. It is hollow and fails to address the most pressing questions bothering the Malaysian public.
“These include whether it is right, and in the public interest, to withdraw serious charges just because partial reparation is promised or agreed upon post-felony, and whether all accused in a similar position will be treated likewise. if not then how will this exercise of discretion bring disrepute to justice, equality and fairness,” they said.
The group said that what Malaysians want to know and look to the Bar for guidance is whether discretion has firstly been properly, judiciously and fairly exercised in the case of Riza and, secondly, has it been seen to have been so exercised, based on the information available.
“Most lawyers, and many enlightened members of the public, are fully aware that the public prosecutor has the discretion to proffer or not to proffer a charge, and also to withdraw a charge after it has been made in court.
“The public also wants to know whether it is usual or abnormal for a discharge not amounting to acquittal (DNAA) to be requested and granted, ‘subject to terms and conditions’ yet to be fulfilled by the accused. Is that correct in law? Should the public prosecutor just take the word of such an accused on his honour?” they asked.
Alongside the impropriety of such a course of action, the lawyers also questioned why the request for DNAA could not be made only after all terms and conditions have been fulfilled by the accused.
“While the Bar president is correct in saying that the public prosecutor has the discretion to withdraw a charge, which discretion must only be exercised justly and in the public interest, he has failed to address the issue of the role of the court to scrutinise such exercise of discretion.
“To many Malaysians, the recent exercise of prosecutorial discretion in the case of Riza Aziz is demonstrably wrong, and is against the public interest. Most understand that a serious crime remains punishable, even if the offender makes full reparation, let alone partial reparation,” they said.
The lawyers argued that if one accused is allowed to escape full punishment under the law, by merely promising or making partial reparation, then the same should also apply to other accused persons in similar positions.
“That statement by the Bar president sweeps under the carpet many unanswered questions, and is inconsistent with the resilient societal-leadership that the Malaysian Bar has selflessly provided for decades in the past, no matter how difficult circumstances had been from time to time, or how unpopular its views were to those in authority.
“This is a cherished tradition and role of the Bar, and one of immense utility, which the Malaysian public has come to expect and rely upon when things are ill-done in our country. We call upon all members of the Bar to lend their voice of strength in this matter of public importance; and to assure the Malaysian public that the Malaysian Bar has not lost its way,” they said.
Riza, stepson of former prime minister Datuk Seri Najib Razak and a co-producer of the 2013 Hollywood picture The Wolf of Wall Street, was granted a DNAA at the Sessions Court last week on five counts of money laundering involving US$248 million (RM1.07 billion) in 1MDB funds, following letters of representation by Riza’s lawyers and an application by the prosecution for the DNAA.
