SUARAM STARTS LEGAL FUND TO PROBE SUBMARINE COMMISSIONS IN FRENCH COURTS
By Dr Kua Kia Soong, Director of SUARAM, 30 May 2011
#OpsScorpene Legal Fund-Payee Name: SUARA INISIATIF SDN BHD A/C No:0300 0065 200-Hong Leong Bank
SUARAM’s efforts to probe suspected commissions involved in the submarines purchase in the French courts are starting to bear fruit. The Malaysian courts have failed to shed light on the grisly murder of Altantuya and the reasons for her murder. Although two former bodyguards of the Prime Minister have been charged and sentenced, their motives for the murder have not been probed by the Malaysian court.
SUARAM believes that there is more to the murder of Altantuya and that what is in question is at least RM500 million in commissions associated with the RM7 billion Scorpene submarines deal. This has grave consequences for both Malaysian and French tax payers.
SUARAM applied through its French lawyers as a civil party for a judicial review in November 2009. As Malaysia’s leading human rights organization, it has always fought for human rights and “People before Profits” issues. Furthermore, SUARAM’s latest publication, “Questioning Arms Spending in Malaysia: From Altantuya to Zikorsky” by its director, Dr Kua Kia Soong, gives it the locus standi for filing this petition in the French courts.
This case concerns the sale of two Scorpène submarines and an Agosta submarine to the Malaysian government, a contract worth approximately one billion euros, that was signed in 2002 with the Malaysian DCNS (former DCN, Department of Naval Construction) and Thalès.
The French Inquisitorial Judicial System
Unlike the British (and Malaysian) system, the French inquisitorial system has an examining or investigating judge. The examining judge can conduct investigations into serious crimes or complex enquiries. As members of the judiciary, they are independent of the executive branch. The judge questions witnesses, interrogates suspects, and orders searches or other investigations. The examining judge’s goal is to gather facts, and as such their duty is to look for all the evidence. Both the prosecution and the defence may request the judge to act and may appeal the judge’s decisions before an appellate court.
Judges in the Paris Prosecution Office have been probing a wide range of corruption charges involving similar submarine sales and the possibility of bribery and kickbacks to top officials in France, Pakistan, Taiwan and other countries, including Malaysia. Recently, Parisian prosecutors, led by investigating Judges Francoise Besset and Jean-Christophe Hullin, have been investigating allegations involving senior French political figures and the sales of submarines and other weaponry to governments all over the world.
SUARAM’s latest application, once approved by the court, would allow it to become party to the enquiry and have official access to every element of the enquiry, including access to the evidence which allegedly links DCNS to the issuing of commissions to government officials. The case is still at the enquiry phase and the new application is to upgrade it to the “instruction phase” where an investigative judge would be appointed.
Malaysia’s Scorpene Submarines’ Scandal
This scandal involving Malaysia’s purchase of two Scorpene submarines is of concern also to French tax payers because it involves France’s biggest defense conglomerates, the state-owned shipbuilder DCN. DCN’s subsidiary Armaris manufactures the Scorpene submarines sold to Malaysia among other countries.
It has already been brought up in the Malaysian Parliament that €114 million (RM500 million) has been paid to a Malaysia-based company called Perimekar, for “coordination and support services” for the submarines transaction. Perimekar was wholly owned by another company, KS Ombak Laut Sdn Bhd, which in turn was controlled by Najib’s aide, Razak Baginda. Baginda’s wife Mazlinda was the principal shareholder in this company. Perimekar was registered in 2001, a few months before the signing of the contracts for the sale and the company did not appear to have the financial resources to complete the contract. None of the directors and shareholders of Perimekar have any experience in the construction or maintenance of submarines.
Altantuya Shaariibuu, a 28-year-old Mongolian translator and Razak Baginda’s jilted lover, had allegedly participated in negotiations over the purchase of the submarines. By her own admission in a letter found after her death, she was attempting to blackmail Razak Baginda for US$500,000. She was shot in October 2006 and her body was blown up with military explosives by two bodyguards attached to Najib’s office after Razak Baginda went to Najib’s chief of staff, Musa Safri, for help in stopping her demands.
What were Altantuya’s Killers’ Motives?
After being acquitted in November 2008 under questionable circumstances of participating in her murder, Razak Baginda left the country for England. The bodyguards were convicted but no motive was ever established for their actions.
The submarine deal was never brought up in court during the murder trial which saw prosecutors, defense attorneys and the judge judiciously keeping Najib’s name out of the proceedings.
A private detective hired by Razak Baginda to protect him from Altantuya’s advances filed a statutory declaration after the trial indicating that Najib had actually been the victim’s lover and had passed her on to Razak Baginda. He later retracted this story in a second statutory declaration. The detective, P. Balasubramaniam, said later that he was forced to leave Kuala Lumpur. He eventually emerged from hiding in India to say that he had been offered RM5 million (US$1.57 million) by a businessman close to Najib’s wife to leave town. He also said he had met Najib’s younger brother, Nazim and was told to recant his testimony.
Contradictions in Malaysian Government’s Story
From the investigations so far, there appears to be contradictions in the Malaysian government’s side of the story regarding the payment of 114 euros to the Malaysian company Perimekar. The Deputy Minister of Defence had told the Malaysian Parliament that this was paid by the French. According to sources cited by the plaintiffs, it was not the company Armaris that paid 114 million euros to Perimekar, but rather the Malaysian government, “with the sole purpose of circumventing the OECD Convention.”
This contract was signed in 2002 after the OECD Convention came into force in
France in 2000, which punishes corruption of foreign public officials with ten
years’ imprisonment and a 150,000 euro fine. Following this complaint, a
preliminary investigation was conducted by the prosecution: the hearings were made and searches were made at the premises of DCNS and Thalès.
As was the case for contracts won by the DCN for submarines to Pakistan and
frigates to Taiwan, there are increasing suspicions of “reversed commissions” to
French political parties.
After Suaram had filed an initial suit at the Paris court in 2009, the state prosecutor Jean-Claude Marin then opened a preliminary investigation. At the time, it was suspected that a bribe of 114 million euros had been paid by the company Armaris (a subsidiary of DCNI and Thalès) to Malaysian parties through the company Perimekar.
DCN Officer Confirms Commissions
In September 2008, during the course of the Karachi Case also involving DCN, the note books of Gérard-Philippe Menayas, former chief financial officer of DCN, who was indicted in the case, also confirmed the suspicions of hidden commissions. In his memorandum, Menayas mentioned the Malaysian submarine contract as follows:
“Since the entry into force of the OECD Convention regarding the fight against
corruption in September 2000, only two contracts have been signed; the first
with India, and the second with Malaysia in 2002. These two contracts are the
result of commercial actions undertaken prior to the OECD Convention.
Furthermore, they are both suspected of non-compliance with this Convention. I
have evidence to support this”.
Furthermore, it appears there were three commissions instead of one paid for the sale of submarines. In addition to that of 114 million euros, there are two further
instalments, one paid by DCN to the commercial networks of Thalès, for over 30 million euros, corresponding to “commercial fees relating to the negotiation and execution of the contract”. This second commission was paid by Thalès to a recipient, who remains unknown, in order to convince the Malaysian government of the need to conduct additional work. The third commission was for 2.5 million euros.
According to Gerard Philippe Menayas:
“Until the OECD Convention against corruption came into force in France, no
contract for the sale of defence equipment to an emerging country could take
place without the payment of commissions to policy makers (euphemistically
called ‘commercial fees for exports’).”
Finally, according to the complaint filed by the firm Bourdon, Suaram’s lawyer,
the company Gifen, which was established by Jean-Marie Boivin in Malta,
intervened in the negotiations “so as to facilitate the money transfers in this
case”, and particularly finance the trips of Baginda and Altantuya.
SUARAM Appeals for Legal Funds
SUARAM hopes the French justice system will reveal more than what the Malaysian judicial system has failed to deliver so far and will bring justice and closure to the family of Altantuya, and force the French and Malaysian Governments to account to their peoples regarding the commissions on the submarines contract.
When the case goes to the French court, the prosecution can then contact an examining magistrate and the trial can start. SUARAM’s case in the French courts will involve considerable legal fees. Thus far, the French lawyers have offered their services pro bono. When the case proper begins, we will need to afford the necessary legal fees. Thus we are appealing to justice-loving and socially conscious Malaysian tax payers to contribute to this submarine commissions legal fund in order that we can retrieve this RM500 million of questionable commission from the Scorpene submarine deal and shed some light on why Altantuya was murdered.
#OpsScorpene Legal Fund-Payee Name: SUARA INISIATIF SDN BHD A/C No:0300 0065 200-Hong Leong Bank