Suaram's application to the French courts is at a stage where the judges will pore through the evidence first – and this could take about two years – to be satisfied that there is a need for a trial.
PETALING JAYA: The French judicial inquiry into the alleged corrupt practices and illegal bribes in the purchase of the Scorpene submarines still has some way to go before a final verdict on the guilty parties is made.
It is too premature to suggest that Prime Minister Najib Tun Razak and other witnesses are in imminent danger of being subpoenead or even arrested if they fail to give evidence, as has been mentioned by several quarters now.
At this stage of the inquiry, the two judges at the Tribunal De Grande Instance in Paris will initiate their own investigation. They will be looking at the police investigation papers submitted to them and probe deeper on their own.
“This step can take at least one or two more years. The judges also cannot force people to testify unless there are strong allegations or evidence,” said freelance French journalist Celine Boileau who has been following this inquiry closely.
“So at this stage, the judges are still investigating and it is a very complicated case… that will probably take some time. They will be hearing from more witnesses and all this will be done in private,” she told FMT.
“There is no open court hearing right now where the witnesses will be grilled by lawyers,” she added.
Explaining the procedures in detail, Celine said all that has been concluded right now is the pre-investigation stage by the prosecution/police to ensure that there are sufficient doubts to present a case before the inquiry.
“This first step is over and that’s why the judges were nominated in March. Now the judges will have to look into the evidence by all parties and decide if a crime has been committed to push for a trial,” she said.
She, however, said that it would be difficult to fix a time period as to when the trial stage would start, adding that another ongoing case involving a French judicial inquiry into illegal kickbacks from arms sales to Pakistan in the 1990s has been going on for about 10 years now.
Suaram’s French lawyer Joseph Breham in an interview to Radio Australia recently similarly said that the “minimum will be one to two years before an actual trial, because this is in the investigating phase”.
“The actual trial, where people are pleading and so on, won’t happen for a minimum of one to two years,” he said.
Can’t plead guilty
Celine also said that another peculiar nature of the French inquiry was that one cannot plead guilty before the judges to soften the charges against them.
“This means, no one is actually interested in revealing information voluntarily as they can’t reduce the charges preferred against them. This makes it more complicated for the judges as they will have to have iron-cast evidence before deciding against anyone,” she said.
Celine added that there had been situations of witnesses stating that they could not reveal much as the defence files were confidential and classified.
“These files are not declassified for the judges and the witnesses can rely on this defence to not to answer the judges,” she said.
Celine said that Malaysian NGO Suaram, which moved for the French judicial inquiry, does not have to give any evidence at this stage.
She also said that in the final outcome of the inquiry, the judges can find both the corrupted and the corruptor (giver and receiver of the bribe) guilty, even if they are not French citizens.
Under the French criminal law, it is an offence, both to corrupt and to be corrupted.
In a previous interview with FMT, the president of a Paris-based anti-corruption certification agency ETHIC Intelligence, Philippe Montigny, pointed out that the procedures in the French system gave no incentives for a company to reveal specific issues on an act of corruption discovered, or to cooperate with the authorities.
This, he said, resulted in lengthy procedures, where the judiciary loses a lot of time to establish evidence of a crime committed abroad, in other languages, other legal environments and often resulting from complex financial mechanisms.
On the punishment scale, if someone is found guilty at the trial stage, Montigny said the briber, the person bribed and the middlemen, incurred the same penalties: up to 10 years’ imprisonment and/or a fine of €150,000 (about RM675,000).
Not all witnesses may be called
Suaram has applied to the French authorities to investigate alleged kickbacks in the purchase of Scorpene submarines by the Malaysian government from French shipbuilding company DCNS.
Based on that application, the French prosecutor had ordered a probe into the matter, resulting in police investigation papers running into hundreds of pages.
Based on this investigation, Judge Roger Le Loire ordered a criminal investigation to be launched against parties who were involved in the corrupt practices. Suaram was then made a civil party to the inquiry.
Suaram claims that the selling party had paid bribery amounting to 114 million euros (RM490 million) to a Malaysian company, Perimekar Sdn Bhd, with the help from Mongolian Altantuya Shaariibuu, who was later gruesomely murdered for allegedly asking a part of the bribe.
The NGO had been reported to have said that it believed “there is something bigger behind the murder of Altantuya and it is the matter about the at least RM500 million commission on the RM7 billion purchase of the Scorpene submarines”.
Suaram has also submitted a list of seven proposed witnesses, including Najib, Defence Minister Zahid Hamidi and the submarine deal middleman Abdul Razak Baginda, who was also Altantuya’s former lover.
Suaram has said that there was a possibility of the witnesses being issued an international warrant of arrest if they failed to adhere to French subpoenas to assist in the inquiry.
However, it is learnt that the French judges may not necessarily call up all the witnesses proposed by Suaram. The judges may even call in other witnesses on their own.
Started under Mahathir, continued under Abdullah
So far, the French police investigation papers submitted to the inquiry have in fact raised several questions on the submarine negotiations, especially on the aspect of commissions paid through Umno nominees.
Based on French police documents, the investigation has also unveiled some potential discrepancies in the movement of the commissions, supposedly involving Umno and some of its nominees.
Their investigation has also revealed roles played by former premier Dr Mahathir Mohamad and his successor Abdullah Ahmad Badawi in the submarine deal as the negotiation with the French seller started in 1999 when the former was the prime minister, and continued when the latter assumed that position in 2003.
However, Suaram had not submitted the names of both Mahathir and Abdullah as their proposed witnesses.
One other factor to note is the Malaysian government’s admission that it had paid 114 million euros as commission to Abdul Razak Baginda’s Perimekar. This was admitted by Deputy Defence Minister Zainal Abidin Zin in the Parliament on Dec 6, 2006.
Suaram’s press release on the judicial inquiry depicted the whole submarine scandal as something befitting a Hollywood spy thriller, saying that the growing links between Altantuya’s murder and the alleged bribery “spell big headaches for the ruling administration, and especially for current Prime Minister Najib Tun Razak”.
However, French police investigative papers reveal a different picture – one that shows that Altantuya had not played any role, not even as a translator, in the submarine negotiations.
More interestingly, the French records have no entry to show Altantuya entered France between 1999 and 2006,
It is now up to the French judges to look into the evidence before them to see if the commission paid was illegal and if any criminal acts had been committed by the parties involved, including the alleged links of the commission to the killing of Altantuya.
Only if they are satisfied with the outcome, will they initiate a trial againts those who had benefited from the misdeeds.