Straight talk from Down Under with lawyer Quintin Rozario – Pt 1

 |Aug 24, 2016
Malaysian-born Australian lawyer Quintin Rozario.
Malaysian-born Australian lawyer Quintin Rozario.

Malaysian-born Australian lawyer Quintin Rozario made headlines when he took a swipe at the United States Department of Justice (DOJ) to seize assets allegedly linked to 1Malaysia Development Berhad (1MDB) as legally flawed.

Rozario pointedly noted that by making public statements on Malaysian individuals allegedly to have laundered illicit funds into the US, its Attorney-General Loretta Lynch had herself committed “excesses and breaches of natural justice”.

The Brisbane-based lawyer insisted 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.

“In order for that to occur, the Malaysian defendants ought to first to have been heard. They were not,” said the 65-year-old legal counsel.

Rozario’s outspoken views however, were not taken lightly by some readers.

Some went berserk in their comments to ridicule Rozario after a blog operated by a certain British writer uploaded his article – ‘US DOJ action on 1MDB legally flawed, says senior Aussie lawyer’.

An over enthusiastic commentator was slapped with a notice of legal action for going overboard with his nasty remarks against Rozario.

Fearing serious legal repercussion, King Leong, a Malaysian from Penang working in a senior position in a bank in Australia, instantly retracted his comments and apologised to Rozario, which was published under title – ‘SR reader apologises to senior Aussie lawyer’.

The senior lawyer from down under has recently ‘returned home’ to Malaysia for a private business.

Malaysia Outlook managed to engage Rozario for an exclusive interview in between his busy schedules meeting his clients.

His answers in this part one of two series shall clear doubts lingering in our readers mind.

He provided answers to add more clarity on his assessment on the DOJ purported suit that certainly caught national, if not international, attention.

Excerpts of the interview as below:

MO: Has the US DOJ filed the civil suit against the four, who were supposed to have ‘stolen’ monies from 1MDB?

QR: Not to my knowledge. It appears from the comments by the DOJ and from various sources close to the four that no steps have been taken by the DOJ to either file criminal complaints or civil suits against any of them. A civil suit will not be the appropriate course of action by the DOJ considering the allegations against the 4 amount to criminal conduct. If they were to file a civil suit, it would appear as a lawyer Noorharjan suggested “a strange way to proceed” when after all the DOJ suggested they had committed a criminal offence. If the DOJ had the evidence they suggested they have then, they ought to proceed on the basis that requires of the DOJ the higher standard of proof (beyond reasonable doubt) that the lower threshold set for civil standard of proof.

The question is has the U.S. Doj filed anything pertaining to its '1MDB Case' following its "gung-ho" press conference on July 20, 2016.
The question is has the U.S. Doj filed anything pertaining to its ‘1MDB Case’ following its “gung-ho” press conference on July 20, 2016.

MO: Can you explain what would be the legal and political consequences arising from the US DOJ civil suit?

QR: The legal and political consequences for Malaysia arising out of the DOJ’s “civil suit” if it indeed proceeds along the lines of its threats are many fold and far reaching. Firstly it would set a precedent whereby a country like the US (and the other powers) being able to bully and coerce into submission the legitimate governments of smaller countries and the wills of their citizens if they disobey or refuse to ceded their sovereignty and rights to the will of a more powerful US (in this case). The political consequences would be more troubling. The majority Malays joined by some right thinking non Malays will react. That reaction may not be immediate as the Malays have a history of reacting slowly to any bullying or insults on them. But it will undoubtedly radicalize the hotheads amongst the Malays, as well it will pave the way and justify China’s assertiveness in the region.

MO: Should the Malaysian government entertain the DOJ suit?

QR: The Malaysian government ought to have requested of the DOJ the evidence and the nature and background to the proposed civil suit and demanded an explanation as to why they were not first consulted on the matter. After all US attorney general Loretta Lynch’s comments allude to Malaysia and some of its government officials as having been complicit in the “theft” (from the words stolen funds) and a conspiracy to launder stolen money in the US. It really is not a matter now for the Malaysian government to do anything than to wait the service of process on the appropriate government body (the attorney general or the individuals thus far unnamed and unidentified by the DOJ) before taking any steps to defend or to respond in any way to the allegations.

The individuals named (if served) have as I understand it 60 days within which to respond to the allegations against them. If I were to advise any of them, it would be to accept service but to give nothing to the DOJ. The DOJ in my view has not made out a prima facie case against anyone yet.

Under US law the onus is on the 4 individuals named to prove their innocence to the charges against them. This may present a slight problem but not an insurmountable one for each of them. Each one having been served individually (if they have been served process) will be represented separately. Each one then separated from the other will be compelled to act in their own interests ignoring the interests of their co-defendants. Such a strategy would offer the DOJ opportunities to “connect the dots” so to speak to reinforce their case against the four.

MO: Based on US law, can Malaysian government be an intervener or strike off the civil legal suit? Anyway, should Malaysian government intervene to strike off the suit?

QR: Considering the allegations are that Malaysian officials (and by that I interpret it as being Malaysian government officials) were involved in a conspiracy to defraud the Malaysian sovereign fund (government property) I would have thought the government of the US would have notified the Malaysian government of their “findings” from their “investigations” into this conspiracy to launder money – Malaysian money. It would have given the Malaysian government the time and opportunity to consider the evidence and the offences alleged and the charges being laid before Loretta Lynch launched her tirade against Malaysia. Malaysia in my view and from the evidence was not afforded such an opportunity. It was an ambush and one that was totally uncalled for.

Malaysia and the 1 MDB fund would have been the proper defendants in such a suit. 1MDB could still interplead in this proceeding. However I am unaware of the strategy being adopted by the Malaysian government.

MO: Could US DOJ to initiate criminal action?

QR: Criminal action is a distinct possibility. Going by what Loretta Lynch alleged, she suggests a crime or crimes were committed by persons unnamed. But for the US DOJ to file criminal charges, they must firstly prove a prime facie charge of criminal conduct against the four. That would occur before what in the US they call a grand jury where they set out the material facts and evidence to support their case.

MO: The complainants behind the US DOJ suits were Sarawak Report (SR) and former Umno member Khairuddin Abu Hassan. Do you think, from legal point of view, they have a locus standi to lodge the reports to DOJ on 1MDB?

QR: The laws to bring a private prosecution have existed in many countries for years. The conditions for the initiating private prosecution are found in Halbury’s Laws of England which states amongst other things that in the absence of statute to the contrary or preventing such private prosecution, a person on their own initiative may, without preliminary consent first had, initiate proceedings with a view to indictment. Private prosecution may only be initiated in exceptional circumstances where the appropriate local authorities have failed or refuse and wrongly failed to bring about a prosecution.

The US is amore litigious society than most, where almost anyone or everyone can bring about a prosecution without prior consent of the parties involved. The DOJ has those powers to undertake litigation on the complaint of others like the Sarawak Report and UMNO member Khairuddin Abu Hassan as alleged. However it would appear that because this is a complaint against a sovereign state, the US would have required a request to intervene in the affairs of Malaysia (which is what this is) by someone with the express or ostensible power and authority to file such a complaint with them (the DOJ). It appears from leaks beginning to surface that someone from the Bank Negara and two sitting members of parliament (in government benches) may have also lent their names to the complaint to the DOJ. The evidence to support the complaint against 1MDB and the Malaysian government appears to be scant and circumstantial.

U.S. AG Loretta Lynch approach to the '1MDB case' was at best controversial.
U.S. AG Loretta Lynch approach to the ‘1MDB case’ was at best controversial.

MO: The U.S. Attorney-General Loretta Lynch has become a judge, jury and executioner all in one, plus an international bully. What action the Malaysia government or 1MDB can take to reprimand Lynch? Or shall they just leave it? (Daimler vs Baume)

QR: Loretta Lynch is a Democrats (Party) nominee and appointee to the position of Attorney general. She is in the final throes of her tenure as AG of the US. Loretta Lynch’s approach to this case (DOJ) is no different to a number of other cases in which her decisions and approach were at best controversial. At worst they were based on misleading unreliable information and misdirection. Her department’s admonishment by Texas judge Andrew Napolitano is legend and worrying. He accused the DOJ and the FBI of lying and misleading the court – a serious allegation against the nation’s top law enforcement officers and their agencies. Loretta Lynch is in election year mode. She feels no responsibility for her actions. In the US state and federal prosecutors have absolute and in some cases qualified immunity from prosecution for failures in the execution of their work as prosecutors. In other words they may act as irresponsibly as they can without fear of retribution.

The Malaysian government has no powers or capacity to reprimand Loretta Lynch. It is up to the US to do so if they will. A Donald Trump victory is likely to uncover the handiwork of Lynch in office. The allegations of her ‘accidental meeting’ with Bill Clinton recently which resulted in her refusing to prosecute Hillary Clinton, wife of Bill Clinton and democratic party presidential nominee, is beginning to come apart at the seams. More detailed classified emails revealing hers and Hillary’s deception over the private emails scandal Hillary is embroiled in will eventually reveal the credibility of the woman at the heart of the 1MDB complaint, Loretta Lynch. Being an outgoing AG she has little responsibility to anything and will be forgiven and hopefully forgotten once she leaves office later this year.

MO: A SR reader had apologised for his nasty and unsavoury remarks against you over your statement under the Bernama article – ‘The US DOJ suit was legally flawed’. Do you feel vindicated? Are you going to further your action against this reader, King Leong? Y/N … Why?

QR: When one speaks out, there is often the expectation that someone or other will comment adversely on what we have to say. In my case it was King Leong and a number of individuals belonging to various evangelical Christian church groups in Malaysia. They decided to play the game of ‘chicken’. An apology and retraction only mitigates the damage done. It does not purge the defamation altogether. There were a few others who phoned me courtesy of a church member who also withdrew and apologised. I don’t intend to give these sorts any more attention than they deserve. It is more a reflection of who they are and their level of intellect. There is one more recent whom I intend to prosecute whether he apologises or not. But I will keep my powder dry for the present … Pt 2

… to be continued.