After the lawsuit filed by the US Department of Justice (DOJ) on assets linked to 1MDB, Ministers and leaders of Barisan Nasional desperately tried to come to Prime Minister Najib Razak’s defence.
One oft cited defence, including by the Prime Minister himself when interviewed, is that the lawsuit is a “civil case” in the USA and not a criminal case.
This is obviously a desperate, weak, ignorant, or even malicious attempt to defend the Prime Minister and 1MDB.
What is civil forfeiture?
As specified in para 4 of the complaint documents, the US government lawsuit is a civil forfeiture. This is another term for Non-Conviction Based (NCB) confiscation (Source: The Stolen Asset Recovery Initiative, World Bank)
According to a 2012 handbook by the US Department of State on “US Asset Recovery Tools & Procedures: A Practical Guide for International Cooperation”, there are two types of confiscation, 1) criminal confiscation, and 2) NCB confiscation.
Simply put it, in a criminal confiscation, the court seizes the property of AFTER a criminal conviction while in a NCB confiscation, the court seizes the property WITHOUT a conviction.
However, NCB conviction “requires proof of the nexus [link] between the particular property subject to confiscation and CRIMINAL conduct”.
In other words, even though the term “civil” is used, the property in question is connected to proceeds or instruments of a criminal offence. To put it plainly, a crime has been committed to warrant the forfeiture.
Why initiate a civil forfeiture?
The reasons for civil instead of criminal forfeiture were given by the same handbook cited above, that “such actions are particularly useful in cases in which a criminal conviction is not possible, such as when the property is held by a fugitive or a criminal who has died or is unavailable for prosecution in the United States.”
Additional scenarios to resort to civil forfeiture, which may be more relevant to the 1MDB case, were given by the Stolen Asset Recovery Initiative of the World Bank; where “the violator is immune from criminal prosecution, or the violator is so powerful that a criminal investigation or prosecution is unrealistic or impossible…”
The DOJ complaint clearly states criminal offences as basis for the forfeiture
The US DOJ complaint is clear that crimes were committed in relation to 1MDB.
In para 5, which states the basis of the complaint, the DOJ said that “this is a civil action in rem to forfeit assets involved in and traceable to an international conspiracy to launder money misappropriated from 1Malaysia Development Berhad (“1MDB”)…”
What are the criminal offences?
Para 5 states that “it is property involved in one or more money laundering offences” which are criminal offences in violation of US laws, 18 U.S.C. § 1956 (laundering of money) and § 1957 (engaging in monetary transactions in property derived from specified unlawful activity).
The DOJ further elaborated their claims for relief from para 502 to para 513 of the complaint.
Malaysian Attorney General must act or be seen as accomplice
As such, instead of continuing to defend the indefensible and giving lame justifications to circumvent justice, the Malaysian Attorney General (AG) must view the matter with the highest degree of seriousness. The implication of the lawsuit by the DOJ is no small matter at all, that crime of the highest magnitude has been committed by Malaysian citizens and senior public officials including one “Malaysian Official 1”. If the AG Chamber does not act, it will not only be seen as powerless but also as an accomplice to the crime.