A response to Australian lawyer Quintin Rozario
Yesterday, it was reported that "a prominent litigation lawyerin Brisbane" by the name of Quintin Rozario claimed that the action by theUS Justice Department (DOJ) is "
legally flawed".
Rozario was reportedto have said this:
"Rozario toldBernama from Brisbane that Lynch overstepped the mark and her authority byconcluding that an offence or offences had been committed by Malaysia or itsagents.
"She wentfurther by implying that they were guilty of the offence by making assertionswithout a scintilla of proof or a valid court decision that could back herassertions."
The USattorney-general (AG), Loretta Lynch, is well within her rights to make thosestatements. She is the AG, she made statements about a civil forfeiture claimwhich was made pursuant to investigations carried out by various enforcementbodies in the US.
Of course she isentitled to announce the action that they have taken and the results of theirinvestigations. She owes a duty to the American people to report on 'thebiggest asset seizure in US history'.
Her announcements donot make any of the persons named (or not named) guilty of any offence. Ifanything, persons who feel aggrieved that these allegations are made may findrecourse in the tort of defamation, and even then Ms Lynch would probably havea defence.
Next, Rozario wasreported to have said this:
"In order forthat to occur, the Malaysian defendants ought to first to have been heard. Theywere not," he said.
Rozario said it wasa legal principle that even the most vile criminals were deserving of andentitled to the doctrine of natural justice under the constitution.
"The right tobe heard and to be afforded an opportunity to present their defence, tochallenge the assertions and charges and the evidence against them and for the respondentsin this matter to confront their accusers has not yet arisen.
"For thehighest legal officer of the land in Loretta Lynch to act in such an arbitrarymanner as she has recently is to deny the respondents a fair hearing or anyhearing at all. Loretta has become judge, jury and executioner all inone," he added."
Here, Rozario appearto not understand the process of civil forfeiture action in the US.
Civil forfeitureaction is an action targeting property (inrem), not persons (inpersonam). At this juncture, there is no criminal prosecutionbrought against any of the named (or not named) persons alleged to be involvedin the money laundering activities.
Rozario's argumentabout the right to be heard is of course an important principle in any criminaljustice system, but here no one has been charged so the presumption ofinnocence is not at play.
For him to say thatLynch has acted as 'judge, jury and executioner' is plainly wrong, because:
1. Lynch only madethe announcement and oversaw the filing of the forfeiture action.
2. The forfeitureaction is filed in court, and it is the court who will order the seizure if theDOJ 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 benoted that if the seizure is allowed, the owners of these properties can stillget them back by showing to court that they are not connected to criminalactivities.
There is a lot ofcriticisms 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 furtherreported:
"Rozario saidthe US attorney-general's actions were also clearly against a decision made bythe US Supreme Court in 2014 in the case of Daimler vs Baume, in which the apexcourt ruled that any violation or act committed by residents in the US, theirconduct could not be attributed to the government or as in this case, 1MDB.
"Instead theSupreme Court ruled that their activities would only establish specificjurisdiction in the state they reside in the US," he said."
I am not an expertin US law (or even Malaysian law), but I do think that Rozario is referring tothe case of Daimler AG vs Bauman, not as reported, "Daimler vsBaume".
As far as Iunderstand the case, after reading the judgement online, the principle in thecase of Daimler AG vs Bauman is that a foreign company is not amenable to asuit in the US for the actions of related company committed entirely outside ofthe US. As such, the US Courts have no jurisdiction.
The allegation inthe civil forfeiture action taken by the DOJ is that the money laundering tookplace within US jurisdiction. So, Daimler AG vs Bauman is irrelevant.
Also, Daimler AG vsBauman is not a civil forfeiture action and it is an action in personam, unlikecivil forfeiture.
Lastly, Rozario wasreported to have said:
"LorettaLynch's approach to 1MDB follows a long line of authority of the US usingstrong-arm tactics on smaller states. It does this by appropriating to itselfpowers to dilute Malaysia's sovereignty and to enforce against it 'legalobligations' usurping that power from the US and Malaysian courts and otherarms of their government," he added."
My only response tothis is, the US is well within her rights to take action. The issue ofsovereignty does not arise at all.
If a foreigner comesto Malaysia and gets involved in money laundering here, then our courts havejurisdiction over such persons, even if he is a foreigner.
The same applies tothe US for crimes committed within jurisdiction over there.
SYAHREDZAN JOHAN is a lawyer.
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Post time 16-8-2016 11:20 AM
