Law unclear if PM’s erroneous 1MDB statement a crime

Mahathir Mohamad’s call for criminal investigation into Najib Razak’s contradictory statements has its obstacles.

KUALA LUMPUR: Questions are being asked in legal circles whether Prime Minister Najib Razak’s conflicting answers to Parliament regarding the status of 1Malaysia Development Berhad’s (1MDB) finances constitute a criminal offence, Malaysiakini reports.

The issue arose on Thursday, when Najib told Parliament that 1MDB did not hold any cash in its BSI Bank (Singapore) Limited account.

In doing so, he contradicted an earlier statement which he had made to Parliament on March 10 claiming that 1MDB had USD1.1 billion in the account, having redeemed an investment fund it held in Caymen Islands earlier in the year.

Last Sunday, former Prime Minister Mahathir Mohamed suggested that the Prime Minister be investigated for an offence under Section 218 of the Penal Code.

Section 218 provides that a public servant who frames a record in a way which he knows to be incorrect, with intent to cause loss or injury to the public or any person or with intent to save any person from legal punishment commits an offence which upon conviction will render him liable for imprisonment of up to three years or a fine, or both.

Whilst acknowledging that Mahathir’s suggestion had some basis, criminal lawyer Amer Hamzah Arshad reportedly said that it was unclear whether Najib, as prime minister, was a public servant within the meaning of the Penal Code.

He pointed out that former Selangor Menteri Besar Mohamad Khir Toyo, who was charged and convicted under section 165 of the Penal Code, has sought to argue before the Federal Court that as menteri besar he was not a “public servant”. No decision has been rendered in the case as yet.

A senior lawyer told FMT today that the position in law was not clear.

On the one hand, he said the Penal Code definition of “public servant” includes “every officer whose duty it is to keep or expend any property on behalf of the Government”.

“In his capacity as Finance Minister, Najib would be the person ultimately accountable for 1MDB,” he noted.

On the other hand, it is a principle of the Westminster form of government that persons who hold political office are not considered public officers.

Also, Article 132(3)(a) appears to exclude the office of any member of the administration in the Federation or a State from the definition of “public service”.

“One must also take into consideration parliamentary immunity,” he added.

“The only body that can censure a parliamentarian for statements made in parliament would be the House Committee of Privileges.”