PETALING JAYA: The royal commission of inquiry (RCI) on Bank Negara’s foreign exchange trading (forex) losses in the 1990s was conducted in breach of rules of natural justice and fairness, says lawyer Mohamed Haniff Khatri Abdulla.
Haniff, who represented former prime minister Dr Mahathir Mohamad during the proceedings, said as such, the RCI should stop its deliberations and propose to the king that it could not complete its report due to the violations.
In outlining the shortcomings, the lawyer said RCI chairman Mohd Sidek Hassan and member Saw Choo Boon were asked to recuse themselves on grounds that they were members of a special task force to propose if a tribunal was needed to investigate the losses.
That application for recusal was dismissed on Aug 8 and the matter is now before the Court of Appeal.
Haniff said Sidek and Saw had access to certain materials and documents and that advantage didn’t benefit the other three RCI members.
The other three members are High Court judge Kamaludin Md Said, Bursa Malaysia Berhad chief executive officer Tajuddin Atan, and member of the Malaysian Institute of Accountants and the Malaysian Institute of Certified Public Accountants, Pushpanathan S A Kanagarayar.
“Therein lies the breach of principles of justice and rules of fairness as there are now two sets of commissioners within this RCI,” he said in his written submission to the tribunal.
He said the three members may be relying on the “guidance” and “assistance” of Sidek and Saw.
Haniff said at the end of the proceedings on Monday, Mahathir’s legal team had written to the RCI to inform that they had obtained oral information that a member in the tribunal had been a BNM scholarship recipient.
“If the answer to our question in that letter is in the affirmative, then it will render that member to be having a conflict of interest and, therefore, is disqualified from continuing with his role,” Haniff said.
He said the other members of the RCI had a duty now to obtain the answer directly from the concerned member.
Haniff also accused the RCI of failing to declassify documents. As such, lawyers for the concerned parties did not have access to vital information to assist the tribunal during proceedings.
“The chairman did not make any ruling and yet opined that the RCI is not bound by the Official Secrets Act, which is a major error in law.
“It would, therefore, not be in the interests of this RCI to proceed with any further recommendation, which has not complied with the provisions negating criminal exposure to any of the commissioners, officers or witnesses,” he said.
Haniff added that another reason the RCI should cease any deliberations is because witnesses were not shown certain documents that only one or two tribunal members had been privy to.
“It is, therefore, our submission, as bitter as it may be, that this RCI stops its deliberations and determination of all the materials adduced during the proceedings towards the five terms of reference,” he said.
The RCI is scheduled to deliver its report to the king and government on Oct 13.
The RCI was set up on July 1 amid claims and denials over Mahathir’s involvement in the scandal, which saw billions of ringgit worth of losses by the central bank.
Sidek, who is a former chief secretary to the government, also headed the special task force which was set up on Feb 15, and later recommended that the RCI be established.
The RCI was tasked with getting to the bottom of the forex losses of US$10 billion (about RM25 billion based on the exchange rate at the time) incurred by the central bank between 1991 and 1993.
The RCI was set up with the following terms of reference:
– Determine the authenticity of the allegation on the foreign exchange losses suffered by BNM in the 1990s and its implications on the national economy;
– Determine whether BNM’s involvement in the foreign exchange activities, which caused the losses, contradicted with the Central Bank Ordinance 1958 or any relevant laws;
– Determine whether there were elements of hidden facts and information relating to foreign exchange losses suffered by BNM and misleading statements given to the cabinet, Parliament and the public;
– Recommend suitable actions to be the taken against those found to be directly and/or indirectly involved in causing the losses and hiding the facts and information on the losses, and;
– Recommend appropriate measures to ensure the incident will not recur.