Yesterday, it was reported that "a prominent litigation lawyer in Brisbane" by the name of Quintin Rozario claimed that the action by the US Justice Department (DOJ) is "legally flawed".
Rozario was reported to have said this:
"Rozario told Bernama from Brisbane that Lynch overstepped the mark and her authority by concluding that an offence or offences had been committed by Malaysia or its agents.
"She went further by implying that they were guilty of the offence by making assertions without a scintilla of proof or a valid court decision that could back her assertions."
The US attorney-general (AG), Loretta Lynch, is well within her rights to make those statements. She is the AG, she made statements about a civil forfeiture claim which was made pursuant to investigations carried out by various enforcement bodies in the US.
Of course she is entitled to announce the action that they have taken and the results of their investigations. She owes a duty to the American people to report on 'the biggest asset seizure in US history'.
Her announcements do not make any of the persons named (or not named) guilty of any offence. If anything, persons who feel aggrieved that these allegations are made may find recourse in the tort of defamation, and even then Ms Lynch would probably have a defence.
Next, Rozario was reported to have said this:
"In order for that to occur, the Malaysian defendants ought to first to have been heard. They were not," he said.
Rozario said it was a legal principle that even the most vile criminals were deserving of and entitled to the doctrine of natural justice under the constitution.
"The right to be heard and to be afforded an opportunity to present their defence, to challenge the assertions and charges and the evidence against them and for the respondents in this matter to confront their accusers has not yet arisen.
"For the highest legal officer of the land in Loretta Lynch to act in such an arbitrary manner as she has recently is to deny the respondents a fair hearing or any hearing at all. Loretta has become judge, jury and executioner all in one," he added."
Here, Rozario appear to not understand the process of civil forfeiture action in the US.
Civil forfeiture action is an action targeting property (in rem), not persons (in personam). At this juncture, there is no criminal prosecution brought against any of the named (or not named) persons alleged to be involved in the money laundering activities.
Rozario's argument about the right to be heard is of course an important principle in any criminal justice system, but here no one has been charged so the presumption of innocence is not at play.
For him to say that Lynch has acted as 'judge, jury and executioner' is plainly wrong, because:
1. Lynch only made the announcement and oversaw the filing of the forfeiture action.
2. The forfeiture action is filed in court, and it is the court who will order the seizure if the DOJ is able to prove that the property is connected to criminal activities, which is a lower burden of proof compared to criminal forfeiture.
It must also be noted that if the seizure is allowed, the owners of these properties can still get them back by showing to court that they are not connected to criminal activities.
There is a lot of criticisms about civil forfeiture action from civil rights advocate in the US, but for now the process is legal and the argument made by Mr Rozario that it is "legally flawed" is at best, misconceived.
Then, it was further reported:
"Rozario said the US attorney-general's actions were also clearly against a decision made by the US Supreme Court in 2014 in the case of Daimler vs Baume, in which the apex court ruled that any violation or act committed by residents in the US, their conduct could not be attributed to the government or as in this case, 1MDB.
"Instead the Supreme Court ruled that their activities would only establish specific jurisdiction in the state they reside in the US," he said."
I am not an expert in US law (or even Malaysian law), but I do think that Rozario is referring to the case of Daimler AG vs Bauman, not as reported, "Daimler vs Baume".
As far as I understand the case, after reading the judgement online, the principle in the case of Daimler AG vs Bauman is that a foreign company is not amenable to a suit in the US for the actions of related company committed entirely outside of the US. As such, the US Courts have no jurisdiction.
The allegation in the civil forfeiture action taken by the DOJ is that the money laundering took place within US jurisdiction. So, Daimler AG vs Bauman is irrelevant.
Also, Daimler AG vs Bauman is not a civil forfeiture action and it is an action in personam, unlike civil forfeiture.
Lastly, Rozario was reported to have said:
"Loretta Lynch's approach to 1MDB follows a long line of authority of the US using strong-arm tactics on smaller states. It does this by appropriating to itself powers to dilute Malaysia's sovereignty and to enforce against it 'legal obligations' usurping that power from the US and Malaysian courts and other arms of their government," he added."
My only response to this is, the US is well within her rights to take action. The issue of sovereignty does not arise at all.
If a foreigner comes to Malaysia and gets involved in money laundering here, then our courts have jurisdiction over such persons, even if he is a foreigner.
The same applies to the US for crimes committed within jurisdiction over there.
SYAHREDZAN JOHAN is a lawyer.