Ahmad
Zahid need not worry about spending his own money or that of the
Malaysian Government. France would pick up the bill, merci beaucoup.The Nut Graph
WHEN it comes to an issue like corruption, nations have long since accepted that it cannot be combated single-handedly. A significant milestone in cooperation was when the General Assembly of the United Nations (UNGA) in New York passed the United Nations Convention against Corruption (UNCAC) on 31 Oct 2003. Shortly after, Malaysia signed the UNCAC on 9 Dec 2003. The UNCAC came into force on 14 Dec 2005. We then ratified it on 24 Sept 2008.
As a party to the UNCAC, how well do our government ministers understand Malaysia’s obligations under this international treaty and local laws on international cooperation on criminal matters? Defence Minister Datuk Seri Ahmad Zahid Hamidi’s recent snubbing of the inquiry by a French court into the Scorpene submarines scandal suggest ignorance, at the very least.
Scorpène
Class Malaysian Navy submarine "Tun Razak" in the shipyard of
Navantia-Cartagena (Spain) few days prior to its delivery. (© Outissnn |
Wiki Commons)
How UNCAC works
Under
the UNCAC, state parties agree to cooperate with one another in every
aspect of the fight against corruption, including prevention,
investigation, and the prosecution of offenders. State parties are
bound to render specific forms of mutual legal assistance in gathering
and transferring evidence for use in court and to extradite offenders.
There is a provision whereby state parties that do not have extradition
treaties with each other may use their common membership of the UNCAC
as the basis for any extradition request. They are also required to
undertake measures which will support the tracing, freezing, seizure
and confiscation of the proceeds of corruption.
Another
over-arching trend in the international fight against transboundary
issues is universal jurisdiction. A country can bring to trial and
prosecute in that country, those accused of having committed a crime in
another country. An area relatively new to Malaysia, we are only
beginning to adopt universal jurisdiction through recent amendments to Section 4 of the Penal Code.
This expands the scope of extraterritorial offences to include damage
to property belonging to, or operated, or controlled, not just by a
Malaysian federal or state government, but also to a Malaysian company
or individual located outside Malaysia. This addresses our lack of laws
to prosecute offences such as the hijacking of a Malaysian
privately-owned (but foreign-flagged) ship by Somali pirates in international waters.
Ignorance or lack of political will?
Zahid Hamidi (source: tabunghaji.gov.my)
Bearing
this in mind, Ahmad Zahid’s response to the possibility of being
subpoenaed to appear in a French court to answer questions about the
Scorpene affair is surprising for a number of reasons. France is also a
signatory to the UNCAC, having signed it on 9 Dec 2003, and ratifying
it on 11 July 2005.
The investigation by the French
courts into allegations of transboundary corruption in the purchase of
two Scorpene submarines by Malaysia would be precisely the kind of
issue that UNCAC and universal jurisdiction are intended to address. By
ratifying the treaty, Malaysia has signified to the world our
willingness to submit to an international framework of cooperation in
this regard. The Defence Minister’s comments, then, seem totally out of
line with our international obligations.
Ahmad Zahid
reportedly said, “Why should I appear? I am not a witness! If I
appear, who will pay for my expenses? I don’t want to use my money and
the government’s money.”
In so doing, he clearly revealed his lack of familiarity with the Mutual Assistance in Criminal Matters Act 2002.
Part II of this Act deals with requests to Malaysia by foreign
governments. In particular, Section 27 of the Act deals with requests
for attendance of a particular person in another country to give
evidence or assist in a criminal matter there. Malaysia’s
Attorney-General can be requested by foreign authorities to arrange for
the person to attend such proceedings. Section 19 specifically requires
the Attorney-General to confirm that “allowances” and “arrangements
for security and accommodation for the person” are to be made by the
requesting foreign authorities.
So really, Ahmad Zahid
need not worry about spending his own money or that of the Malaysian
Government. France would pick up the bill, merci beaucoup.
Ahmad
Zahid’s own ignorance aside, Malaysia’s attitude towards the Scorpene
probe is also an issue of political will. Even though France is not a
“prescribed foreign State” pursuant to Section 17 of the Act, Section
18 of the Act allows the Attorney-General to give special direction in
writing for the Act to apply to that state. There is room for ad-hoc
cooperation with France, if the Attorney-General recommends it and if
the minister in charge of law agrees.
International perception
Malaysia
could still refuse to entertain a request from France and would have
grounds to do so in Section 20 of the Act. These include:
- Section 20(1)(g): the facts constituting the offence to which the request relates does not indicate an offence of sufficient gravity;
- Section 20(1)(h): the thing requested for is of insufficient importance to the investigation or could reasonably be obtained by other means;
- Section 20(1)(i): the provision of the assistance would affect the sovereignty, security, public order or other essential public interest of Malaysia.
However, Malaysia should be cautious
of how a refusal would be perceived by the international community in
such a high-profile case. Care must be taken not to give a wrong
impression.
No comments:
Post a Comment