Forex scandal RCI panel dismisses composition challenge

Lawyers Mohamed Haniff Khatri and Sivarasa Rasiah speak to reporters after the BNM 1990s Forex Losses RCI's opening session at the Court of Appeal in Putrajaya Aug 8, 2017. — Picture by Miera Zulyana
Lawyers Mohamed Haniff Khatri and Sivarasa Rasiah speak to reporters after the BNM 1990s Forex Losses RCI's opening session at the Court of Appeal in Putrajaya Aug 8, 2017. — Picture by Miera Zulyana

PUTRAJAYA, Aug 8 — The panel of the Royal Commission of Inquiry (RCI) on the Bank Negara Malaysia (BNM) forex scandal today dismissed a bid challenging the lawfulness of its composition.

After having heard arguments on whether overlaps in the RCI panel and a previous task force would be in breach of natural justice or affect public confidence, the five-man RCI panel ruled that it would continue the inquiry.

“We have conferred just now. We take cognisance that the commission has been constituted and consented by the Yang di-Pertuan Agong and therefore we have made the decision that it shall continue,” the RCI panel’s chairman Tan Sri Mohd Sidek Hassan said today at the opening session.

“On the issue of representation, you will be represented but the issues you can or will raise are subject to relevancy of issues as per the terms of reference. That is the decision of the commission,” he added, when commenting on the role to be played by lawyers acting for former Prime Minister Tun Dr Mahathir Mohamad and his former deputy Datuk Seri Anwar Ibrahim.

Lawyers for the duo earlier today raised concerns on the overlaps in the RCI panel and an earlier special task force (STF) which recommended its formation to probe the forex losses allegedly suffered by BNM in the 1990s during Dr Mahathir’s administration.

Mohd Sidek and Special Task Force to Facilitate Business (Pemudah) co-chairman Tan Sri Saw Choo Boon were both on the multi-agency STF, which had on June 21 concluded that there was a need for in-depth investigations by an RCI.

Lawyer Mohamed Haniff Khatri Abdulla had raised the issue of the panel’s composition and wanted to know whether he would be allowed to actively participate in RCI proceedings or if he would be limited to be an observer holding a watching brief.

“At the outset, I must state that Tun Dr Mahathir is ever willing to be part of the proceedings, so there is no issue of continuation with the RCI,” he said of his client.

Mohamed Haniff told the RCI panel that it was the 12th such commission formed in about 60 years and was the first one that was preceded by a special task force to determine whether a RCI is required.

He argued that the role of the special task force’s members should not intertwine with that of the RCI panel, saying that the commission’s members should be able to conduct the inquiry with a “free mind” to ensure fairness and justice.

Lawyer Sivarasa Rasiah similarly informed the RCI panel that his client Anwar “is prepared to give full cooperation to the Commission as he did to the task force”.

Sivarasa said the issue of the RCI panel’s composition was not about personal bias, having also noted: “There is nothing personal about it, this is purely a matter of form and composition of the RCI”.

Noting that the RCI panel’s findings involve “potentially criminal offences with severe penalties” relating to the hiding of facts on the alleged losses, Sivarasa argued there was a need to examine the panel’s composition as the impact of its findings would be major.

Datuk Suhaimi Ibrahim, a deputy public prosecutor who has been appointed the lead conducting officer of the inquiry, had argued however that the RCI should proceed with its inquiry.

“Firstly I would like to point out there is no rule against composition of the commission — whether a person appointed in an earlier panel can be a member of RCI. There is no rule on that. The law is silent on that,” he said.

Suhaimi also noted that an RCI is only a fact-finding mission and is not a court that makes decisions, arguing that the issue of natural justice does not apply here.

“If they are going to apply that rule, there must be real likelihood of bias, where is the real likelihood of bias? Who is against who? Therefore I would suggest this RCI proceed without further delay,” he said.

As for the role of Dr Mahathir and Anwar’s lawyers, Suhaimi said that the Commissions of Enquiry Act’s Section 18 touches on the right to be represented by a lawyer during RCI proceedings, but said the same provision does not provide for “active participation” and that it is not granted as of right. Acknowledging that there has been RCI hearings on other cases where lawyers were allowed to cross-examine witnesses, Suhaimi said however that whether this will be allowed should be decided based on this case’s special circumstances.

Both Mohamed Haniff and Sivarasa had today asked the RCI panel to allow them to put in written submissions on the two issues of the panel’s composition and the nature of their role, but the panel went ahead to make its ruling based on the arguments they heard this morning.

The RCI panel, which has been given five terms of reference, has to complete its inquiry and submit its report to the Yang di-Pertuan Agong within three months by the scheduled date of October 13.

The five terms of reference include determining the validity of the claim that losses have been incurred by BNM due to foreign exchange dealings in the 1990s and its impact on the country’s economy; and determining whether BNM’s foreign exchange dealings which incurred losses had breached the Central Bank Ordinance 1958 or other relevant laws.

The RCI panel is also tasked with determining whether there were “elements of deliberate concealment of facts and information and misleading statements” made to the Cabinet, Parliament and the public about BNM’s losses due to the foreign exchange dealings; to recommend appropriate action against those involved directly or indirectly if they are found to have caused the losses or concealed related facts and information; as well as recommend a course of action to ensure such events would not repeat.

The inquiry hearings, which are open to the public, will stretch over 10 days at the Court of Appeal on August 21, 24, 29, 30 and September 6, 7, 18, 19, 20, 21.

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