Was the 114 million euro (RM534.8 million) paid to Perimekar a "commission"?
The Malaysia government has argued that the huge sum was not a commission but for the provisions of "support services" to the RM3.7 billion Scorpene submarines bought from France.
That's the crux of an on-going Parisian investigation as under French and international laws, giving commissions on such deals are illegal.
According to French lawyer Joseph Breham, who is part of a team investigating the scandal, there was enough "prima facie evidence" to justify a probe.
"How did this company suddenly obtain 114 million euro (RM482 million) in their bank account?" he asked in an interview with Malaysiakini last week.
"Also, the main shareholder of this company, is the wife (Maslinda) of a close associate (Abdul Razak Baginda) to the (then) minister of defence (Najib Razak)."
Breham's team hopes to unearth enough evidence to convince the French court to institute corruption charges.
Excerpts from the interview follow:
Malaysiakini: You said in media reports that you have sufficient evidence to proceed in the case. Can you reveal what kind of evidence you have?
Breham: We have Perimekar's account statement in 2001 and 2002. And between these years, they have lost about RM75,000. How can a company lose RM75,000 when the only thing the company did was related to some administrative cost? There was no income, and it was just renting an office.
How did this company suddenly obtain 114 million euro in their bank account? This is the basis for suspicion. Also, the main shareholder of this company is the wife (Maslinda) of a close associate (Abdul Razak Baginda) to the (then) minister of defence (Najib Razak).
These are strong elements (for suspicion) and if you add to this the fact that Altantuya Shaariibuu was killed by the bodyguards of the prime minister, and if you add to this the fact that the immigration records of Altantuya's entry into the country have disappeared, there is proof that a high official did not want any evidence of her entering the country.
And the fact that the two policemen blew her up with C4 (explosives), it appears as if they completely do not want anything of her to appear.
So, we have the proof that someone who is a high official is involved in this case. We have the proof that the wife of one of the close friends of the PM is involved - (he or she may have) nothing to do with the Altantuya case, but in the issuing of commissions.
I am saying that there is enough evidence, enough prima facie evidence, based on all these elements to make an enquiry.
You are saying that the French prosecutors have accepted your arguments to proceed with the case?
Yes, and there is an key argument that each time (French state-owned shipbuilder) DCN makes a deal in a foreign country, there is corruption. Of course, this does not prove anything but they are not 'white knights' either.
How similar is the Malaysian case to the Taiwanese and Pakistani cases that you mentioned in recent media reports?
I am not the lawyer for the Taiwanese or the Pakistani side. However, the Taiwan and Pakistan cases began the other way around. They both started because there were dissension in the French political parties. For example, the Pakistani case started because there were factions in the conservative party.
One of the factions was running for president in the presidential elections. So, the one in power stopped the other from getting kickbacks. In the end, the Pakistanis were not getting their money from the French.
The Taiwanese case came exactly the same way. It was related to a former French minister involved in another case with the company, and they proved that one of his mistresses bought him very expensive shoes.
They inquired where the money came from, and by tracing the money, they found that it came from a bank account in Switzerland. They also managed to prove that the money came from someone involved in the Taiwanese contract.
The reason why it went to such a high level was because of a provision in the contract that stated that there should be no commission paid and that the French government could ask DCN to pay back the commission.
Taiwan lost a lot of money because of this. They filed a civil case against DCN to make them pay back the commission and they won. So the French judicial system could not just ignore the evidence.
If those involved in the DCN case were found to be giving out commissions, can action be taken against them? Is there a law in France against giving out commissions?
There are three laws against giving out commissions. They are the 2002 Organisation for Economic Cooperation and Development (OECD) Anti-Bribery Convention, 2003 United Nations Convention against Corruption, and the French national law.
[Malaysia is not party to the OECD Convention but it ratified the United Nations Convention against Corruption on Sept 24, 2008.]
These conventions are interesting: they have a mechanism to monitor whether a country respects the conventions. In the French system, when there is risk of corruption among prosecutors, OECD can ask the French government to act against these prosecutors.
In France, there is a written instruction that a decision not to prosecute a case of corruption is not only based on technical criteria, but (also on) either quality of fact or consistency of proof.
A decision not to prosecute could not be motivated based on quality of person, or by consideration of national economic interest. A courageous prosecutor can ask in writing if he was instructed not to prosecute a person for corruption. He can say, "Excuse me, you give me instructions against the convention, please tell me which to follow." This, too, he should ask in writing.
What happens if you cannot obtain any information from the Malaysian side to help you with your investigation?
Once a judge decides, he can issue an instruction called 'the international warrant of search' and this warrant of search will be sent to the Malaysian side, saying, "We, the French judiciary, want this company to disclose to us this, and this, and this (information). According to the UNCAC, you are obliged to cooperate with me".
If Malaysia does not deal with the situation, it will at least prove that the government has something to hide. Moreover, if we can find elements showing that Perimekar has parked its accounts somewhere else, the solution in corruption cases is always to follow the money. If we can find the money somewhere else other than Malaysia, then we have some chances.
I, as a lawyer, can ask (apply to) the (French) judge to make such an instruction. It is up to him to decide. If he decides against my application, I can appeal.
The Malaysia government has argued that the huge sum was not a commission but for the provisions of "support services" to the RM3.7 billion Scorpene submarines bought from France.
That's the crux of an on-going Parisian investigation as under French and international laws, giving commissions on such deals are illegal.
According to French lawyer Joseph Breham, who is part of a team investigating the scandal, there was enough "prima facie evidence" to justify a probe."How did this company suddenly obtain 114 million euro (RM482 million) in their bank account?" he asked in an interview with Malaysiakini last week.
"Also, the main shareholder of this company, is the wife (Maslinda) of a close associate (Abdul Razak Baginda) to the (then) minister of defence (Najib Razak)."
Breham's team hopes to unearth enough evidence to convince the French court to institute corruption charges.
Excerpts from the interview follow:
Malaysiakini: You said in media reports that you have sufficient evidence to proceed in the case. Can you reveal what kind of evidence you have?
Breham: We have Perimekar's account statement in 2001 and 2002. And between these years, they have lost about RM75,000. How can a company lose RM75,000 when the only thing the company did was related to some administrative cost? There was no income, and it was just renting an office.
How did this company suddenly obtain 114 million euro in their bank account? This is the basis for suspicion. Also, the main shareholder of this company is the wife (Maslinda) of a close associate (Abdul Razak Baginda) to the (then) minister of defence (Najib Razak).These are strong elements (for suspicion) and if you add to this the fact that Altantuya Shaariibuu was killed by the bodyguards of the prime minister, and if you add to this the fact that the immigration records of Altantuya's entry into the country have disappeared, there is proof that a high official did not want any evidence of her entering the country.
And the fact that the two policemen blew her up with C4 (explosives), it appears as if they completely do not want anything of her to appear.
So, we have the proof that someone who is a high official is involved in this case. We have the proof that the wife of one of the close friends of the PM is involved - (he or she may have) nothing to do with the Altantuya case, but in the issuing of commissions.
I am saying that there is enough evidence, enough prima facie evidence, based on all these elements to make an enquiry.
You are saying that the French prosecutors have accepted your arguments to proceed with the case?
Yes, and there is an key argument that each time (French state-owned shipbuilder) DCN makes a deal in a foreign country, there is corruption. Of course, this does not prove anything but they are not 'white knights' either.
How similar is the Malaysian case to the Taiwanese and Pakistani cases that you mentioned in recent media reports?
I am not the lawyer for the Taiwanese or the Pakistani side. However, the Taiwan and Pakistan cases began the other way around. They both started because there were dissension in the French political parties. For example, the Pakistani case started because there were factions in the conservative party.
One of the factions was running for president in the presidential elections. So, the one in power stopped the other from getting kickbacks. In the end, the Pakistanis were not getting their money from the French.
The Taiwanese case came exactly the same way. It was related to a former French minister involved in another case with the company, and they proved that one of his mistresses bought him very expensive shoes.They inquired where the money came from, and by tracing the money, they found that it came from a bank account in Switzerland. They also managed to prove that the money came from someone involved in the Taiwanese contract.
The reason why it went to such a high level was because of a provision in the contract that stated that there should be no commission paid and that the French government could ask DCN to pay back the commission.
Taiwan lost a lot of money because of this. They filed a civil case against DCN to make them pay back the commission and they won. So the French judicial system could not just ignore the evidence.
If those involved in the DCN case were found to be giving out commissions, can action be taken against them? Is there a law in France against giving out commissions?
There are three laws against giving out commissions. They are the 2002 Organisation for Economic Cooperation and Development (OECD) Anti-Bribery Convention, 2003 United Nations Convention against Corruption, and the French national law.
[Malaysia is not party to the OECD Convention but it ratified the United Nations Convention against Corruption on Sept 24, 2008.]
These conventions are interesting: they have a mechanism to monitor whether a country respects the conventions. In the French system, when there is risk of corruption among prosecutors, OECD can ask the French government to act against these prosecutors.
In France, there is a written instruction that a decision not to prosecute a case of corruption is not only based on technical criteria, but (also on) either quality of fact or consistency of proof.
A decision not to prosecute could not be motivated based on quality of person, or by consideration of national economic interest. A courageous prosecutor can ask in writing if he was instructed not to prosecute a person for corruption. He can say, "Excuse me, you give me instructions against the convention, please tell me which to follow." This, too, he should ask in writing.
What happens if you cannot obtain any information from the Malaysian side to help you with your investigation?
Once a judge decides, he can issue an instruction called 'the international warrant of search' and this warrant of search will be sent to the Malaysian side, saying, "We, the French judiciary, want this company to disclose to us this, and this, and this (information). According to the UNCAC, you are obliged to cooperate with me".
If Malaysia does not deal with the situation, it will at least prove that the government has something to hide. Moreover, if we can find elements showing that Perimekar has parked its accounts somewhere else, the solution in corruption cases is always to follow the money. If we can find the money somewhere else other than Malaysia, then we have some chances.
I, as a lawyer, can ask (apply to) the (French) judge to make such an instruction. It is up to him to decide. If he decides against my application, I can appeal.
If DCN were indicted, you of course expect the Malaysian public or NGOs like Suaram to take up the case against the government.
I am a lawyer and I look for proof. So, if corruption happens involving any of its official in Malaysia, we hope the Malaysian justice system will take care of it. It is not up to the French justice system to do this. It would not be logical. So, for now France must do something against DCN corrupting people outside of France.
But I hope that as soon as - and if we have proof - that Malaysian officials have received the commissions, the Malaysia justice system must then do its work.
If nothing happens, the only thing that could be done - but this is very theoretical, as far as I know it had never been done before - is that there is an application that is called 'either you extradite or you prosecute' in the UNCAC.
If a country considers that there is a huge problem, that there is such a (corrupted) person in another country, it can ask for extradition and that it is a duty of the other country either to extradite or prosecute.
Can a country refuse to do either?
No, it cannot say 'no' since it is international law. Of course, Malaysia will not be invaded if they decide to do neither. However, there is a way for them (Malaysia) to circumvent this, and that is to prosecute.
But in this case, there is a theoretical possibility - although it has never been used - that France may consider that the inquiry (on the Malaysian side) was such a false one. If they can show enough proof that the Malaysian inquiry was not valid, then it (France) can apply for an 'international binding judgment'.
For example, this applies to an official who must be sentenced to jail. If the official goes out of the country, he can be taken into custody (based on international laws).
I am a lawyer and I look for proof. So, if corruption happens involving any of its official in Malaysia, we hope the Malaysian justice system will take care of it. It is not up to the French justice system to do this. It would not be logical. So, for now France must do something against DCN corrupting people outside of France.
But I hope that as soon as - and if we have proof - that Malaysian officials have received the commissions, the Malaysia justice system must then do its work.If nothing happens, the only thing that could be done - but this is very theoretical, as far as I know it had never been done before - is that there is an application that is called 'either you extradite or you prosecute' in the UNCAC.
If a country considers that there is a huge problem, that there is such a (corrupted) person in another country, it can ask for extradition and that it is a duty of the other country either to extradite or prosecute.
Can a country refuse to do either?
No, it cannot say 'no' since it is international law. Of course, Malaysia will not be invaded if they decide to do neither. However, there is a way for them (Malaysia) to circumvent this, and that is to prosecute.
But in this case, there is a theoretical possibility - although it has never been used - that France may consider that the inquiry (on the Malaysian side) was such a false one. If they can show enough proof that the Malaysian inquiry was not valid, then it (France) can apply for an 'international binding judgment'.
For example, this applies to an official who must be sentenced to jail. If the official goes out of the country, he can be taken into custody (based on international laws).
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