STOP PLAYING ZERO-SUM GAME IN COMBATING TRANSNATIONAL CRIMES

PRESS STATEMENT: 9 June 2011

STOP PLAYING ZERO-SUM GAME IN COMBATING TRANSNATIONAL CRIMES

SUARAM strongly condemns the persistence of both the Australian and Malaysian governments in continuing the asylum swap arrangement despite criticism from various quarters including the UN High Commissioner for Human Rights Navi Pillay, United Nations High Commissioner for Refugees (UNHCR), various international human rights organizations and Australian and Malaysian civil society groups.

SUARAM is appalled at the poor regard of human rights contained in the contents of the draft agreement as announced by ABC TV’s Lateline show and the Malaysian Government’s stand against inclusion of human rights principles in the agreement. Based on the revelation made by ABC TV’s Lateline show on 2 June1, we are deeply concerned that the Malaysian government will repatriate asylum seekers to their country of origin with or without consent by the asylum seekers. This is a violation of the international customary law of non-refoulement, which prohibits the return of people to places where they may face persecution or threats to their life or freedoms. By signing this agreement, the Australian government is effectively violating their own obligations under the 1951 Refugee Convention.

It has been reported that the Malaysian government will exempt the transferred 800 asylum seekers from punishment as undocumented migrants under the Immigration Act2. Section 55 of the Immigration Act 1959/63 allows for the Home Minister to exempt any persons from any provisions in the Act. If the Malaysian Government intends to invoke Section 55 for this group of 800 asylum seekers, we question why this exemption is not extended to all refugees and asylum seekers in Malaysia.

SUARAM is also concerned that even the rights of vulnerable groups such as unaccompanied minors are not respected and guaranteed under this asylum arrangement. In recent developments, Immigration Minister Chris Bowen has stated unaccompanied minors will be considered for transfer on a case-by-case basis. SUARAM condemns this approach of selective granting of rights for unaccompanied minors.

SUARAM urges Australian and Malaysian governments to stop playing a zero-sum game in their efforts to combat human trafficking and smuggling. Both the governments must respect the rights of all individuals seeking asylum in Australia and not gamble on their fate by transferring them to a country (Malaysia) that has not ratified the 1951 Refugee Convention. While this may appear to be a win-win arrangement as mentioned by both governments, however the governments have failed to consider those on the losing end: the asylum seekers who will be transferred to Malaysia.

We believe that these transnational crimes relating to migration such as human trafficking and smuggling must not be treated merely as a crime but also be inclusive and comprehensive with regards to the human rights of involved individuals. States must also take into consideration that refugees fleeing harm and persecution sometimes use whatever means they deem necessary to seek protection. There is no compromise for human rights and all crime prevention plans undertaken must be consistent and in line with human rights principles.

As such, SUARAM urges;

The Australian and Malaysian governments to call off the asylum swap agreement.

The Australian and Malaysian governments to ensure that future bilateral or regional cooperation relating to human trafficking and smuggling includes highest respect for human rights of the trafficked and smuggled persons.

The Australian government to respect its human rights obligations in the bid to protect its borders and combating transnational crimes. As Australia is located in a region where most states have poor human rights track record, the Australian Government must actively promote upholding of human rights principles instead of condoning human rights violations.

The Malaysian Government to ratify the 1951 Refugee Convention and its 1967 Protocol, and to invoke Section 55 of the Immigration Act to exempt all asylum seekers and refugees from punishment for immigration offences while domestic legislation and policies to recognise refugees are enacted.

Andika Ab. Wahab
Refugee Coordinator
Suara Rakyat Malaysia (SUARAM)
[email protected]
0163723699

SUARAM STARTS LEGAL FUND TO PROBE SUBMARINE COMMISSIONS IN FRENCH COURTS

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”.

(http://www.rue89.com/2011/04/02/sous-marins-malaisiens-la-piste-des-retrocommissions-se-precise)

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

SUARAM: Press Statement 30 May 2011 Launching of Ops Scorpene


SUARAM: Press Statement 30 May 2011

Launching of Ops Scorpene

1) SUARAM is a human rights organization, known to speak out fearlessly in defence of human rights, good governance and an open and accountable society. For over 20 years SUARAM has worked to expose corrupt practices, poor governance and champion the rights of people before profits.

2) On the 5th June 2002, the Malaysian Government signed an agreement with French DCNS and Spainish Navantia for the procurement of two Scorpene class submarines. The procurement contract was through direct negotiation with the manufacturing companies, said to be with the service of Perimekar Sdn Bhd. Razak Baginda is the owner of Perimekar.

3) According to the Government explanation, the contract was divided into two parts:
i. Cost of two Scorpene submarines together with the package that covers Integrated Logistic Support and training amounted to Euro 969.15m (however on 14 May 2008, Najib told the Parliament that this part cost Euro 999.15)
ii. Payment to Perimekar Sdn Bhd in the name of “coordination services” for a period of six years, the sum was Euro 114.96m.
iii. With the exchange rate at the time, the cost was equivalent to:
1. Payment for submarine cost between: RM 2.14b (Euro=RM3.2 in 2002) – RM 5.43b (Euro=RM5.6 in 2008) (now Euro=RM4.7)
2. Commission: probably about RM 540m (exchange rate at the time of payment)

4) On 23 December 2009, SUARAM through our networks in France linked up with leading human rights lawyers in France, to file a complaint with the French judicial system, with the hope that a preliminary investigation would be initiated. This was done to enable access to information, to the government contracts signed with PERIMEKAR and other information classified as government secrets in Malaysia.

5) In April 2010, the lawyers representing SUARAM, informed us that the courts had accepted the request to investigate the claim of corruption for a payment amounting to Euro 114 million made as commissions from DCNS to Perimekar.

6) The French, practising the Civil Law system where a judge assumes the role of an inquisitorial and investigative referee, has so far kept the findings of its investigations confidential.

7) Our lawyers however, have informed us that the investigation is coming to an end, and should move to full trial after it decides whether or not there is sufficient evidence to pursue the matter in open court.

8) Ops Scorpene is a fundraiser and awareness campaign to further pursue the case in the French courts as a national issue. It seeks to instil interest amongst Malaysians to question arms spending and transparency in arms procurement of the country.

9) Ops Scorpene aims to get RM100,000 via events planned during the visit of the French lawyers to Malaysia.

10) SUARAM will be organizing two events in Penang and Kuala Lumpur during their visit to give a chance to ordinary citizens and Civil Society Organisations to grasp the facts of the scandal that has shook the nation. At the same time, we are giving the opportunity to the people to play a role in supporting this struggle, by buying tickets to the Hi-Tea event in Penang on the 21st of July, and the dinner in KL on the 23rd of July.

11) The hi-tea will feature a dialogue with the lawyers, NGOs and political parties; while the dinner will feature William Bourdon, a well known French lawyer as keynote speaker. SUARAM secretariat and political leaders will be speaking in response to the information shared by him. There will also be a number of performances and booths for NGOs to get their message and campaign forward.

12) Donations can also be made to SUARAM via cheque or online transfer to Suara Inisiatif Sdn Bhd, Ac. No: 0300-0065-200, Hong Leong Bank Berhad.

13) SUARAM applauds the Defence Minister Zahid Hamidi for showing his enthusiasm by welcoming the probe by the French courts with open arms. We also thank his acknowledgement of SUARAM as a concerned civil
society non governmental association. However the probe and the case has nothing much to do with his ministry, and especially not him in his ministerial capacity. The commissions were not paid during his time as minister.

Thank you.

SUARAM

MEMORANDUM to the Australian High Commission in Malaysia on the Australia-Malaysia Agreement on the Transfer of Asylum Seekers

MEMORANDUM to the Australian High Commission in Malaysia on the Australia-Malaysia Agreement on the Transfer of Asylum Seekers

25 May 2011

We, the undersigned civil society organizations, wish to express our opposition to the proposed Australia-Malaysia bilateral agreement, in principle, to transfer the next 800 asylum seekers seeking asylum in Australia to Malaysia.

Although the terms of the joint agreement remain vague, we are of the view that the Australian Government is making a mistake in arranging this joint agreement with the Malaysian Government which is not a signatory to the 1951 Convention Relating to the Status of Refugees (“Refugee Convention”). This proposed exchange is a misguided approach in dealing with a complex issue that will cause serious ramifications as Malaysia has a long record of abuse and mistreatment of people seeking protection. This arrangement, if implemented, may lead to the violation of the rights of transferred individuals to Malaysia.

Australia has ratified the Refugee Convention and is obliged to promote and protect the rights of asylum seekers and refugees. Under the convention, Australia may not transfer any refugee who is lawfully present in its territories. Australia may also not transfer refugees who are not lawfully present its country where the transfer may result in violation of the rights of those transferred refugees. Australia may only transfer refugees and asylum seekers to states where there are procedures for the recognition of their status and rights.

Malaysia has no domestic act to protect the rights and security of refugees and asylum seekers as well as no legal recognition of their status. This creates significant barriers in their livelihood options in accessing their right to work, education and health. Furthermore, asylum seekers and refugees live in constant fear of the authorities, in particular, the police, Immigration authorities and the People’s Volunteer Corps (Ikatan Relawan Rakyat, RELA). as they are treated as undocumented migrants and subjected to harsh immigration laws and policies. We question the Australian government’s silence towards Malaysia’s mistreatment of undocumented migrants and refugees while outsourcing its responsibility without seriously taking into consideration the rights, well being and safety of the refugees.

Even though the agreement will see the resettlement of 4,000 refugees from Malaysia to Australia, the agreement falls far from “burden sharing”, as mentioned by the Australian government. Instead, this move is more of a “burden transition” from Australia to Malaysia. The Australian Government should not show a bad example of treatment of asylum seekers and refugees to Malaysia and other states in the region that have not ratified the Refugee Convention.

We emphasise that the Australian Government must first urge the Malaysian Government to ratify the Refugee Convention before making any agreements with regards to refugees and asylum seekers.

We, the undersigned organizations, call upon the Australian government to;

• Immediately withdraw the asylum agreement.

• Urge the Malaysian Government to establish domestic legislation to promote and protect the rights of refugees and asylum seekers who are already in Malaysia and to ratify the 1951 Convention and its 1967 Protocol.

• Respect its international obligations in relation to asylum seekers that enter its country. These obligations include Australia’s commitments under the Refugee Convention and a few other international instruments, including International Covenant on Civil and Political Rights (ICCPR) and the Convention Against Torture and Other Cruel, Inhuman or Degrading Treatment or Punishment (CAT).

Increase its humanitarian programme, in particular, to resettle more refugees from Malaysia and the Southeast Asia region to Australia.

Endorsed by:
Health Equity Initiatives (HEI)
Lawyers for Liberty (LFL)
Malaysian Social Research Institute (MSRI)
Suara Rakyat Malaysia (SUARAM)
TENAGANITA

Scorpenes: French lawyers to come to KL ahead of open court hearing

French lawyers acting for SUARAM are due to come to Kuala Lumpur in late June or July to brief their client on the latest development in Prime Minister Najib Razak’s high-cost purchase of three submarines from European arms-maker DCNS.

SUARAM had on behalf of Malaysian taxpayers filed a suit against DCNS in December 2009 at the courts in Paris for “active and passive corruption, trading of favours and abuse of corporate assets”.

The civil rights group had been concerned there was ‘hanky-panky’ in the deal, the cost of which would ultimately have to be borne by Malaysian taxpayers. SUARAM suspected kickbacks worth hundreds of millions of ringgit had been hidden in the transaction and called on the Malaysian Anti Corruption Commission to investigate, but to no avail.

Also, despite constant grilling, Najib has kept the details of the transaction top secret while other members of his administration have provided only fuzzy details, even to Parliament.

“The lawyers are due to arrive and brief their client on the latest ahead of the hearing which will take place in open court. Once that happens, you can imagine what is next. Everyone will be very busy and the international media will be all over the place,” the source told Malaysia Chronicle.

A Parisian court is due to hear the case and a hearing date was initially slated for May-June, but that may now have to be slightly delayed as SUARAM is applying for an investigative judge to preside.

Briefings at various venues

It is not clear if the lawyers coming to KL will include Joseph Breham who came last year. But according to the source, the French team will also give several briefings to concerned citizens at various venues throughout the nation.

There is enormous public interest in the case, not only because intertwined into the submarines acquisition was a murder most foul, but because the purchase was deemed to be extremely overpriced. There is also concern that the 2 Scorpenes do not work properly as in the weeks after arrival last year, they failed to dive. The third submarine is a second-hand Agosta.

Apart from that, when Najib first mooted the purchase in the early 2000s, Malaysians had protested, arguing that the submarines were not suitable for guarding the nation’s shallow coastline and the cost was also unjustifiable.

But the BN government hammered the deal through, and so far, it has cost Malaysia at least RM6.7 billion ringgit, excluding add-on service fees which could push the total acquisition package to above RM10 billion in the next few years.

The deal had been sanctioned by Najib – who was then Defense minister. He was accused of benefiting his close friend Razak Baginda with a 114 million euros commission.

Debauchery

The Malaysian prime minister and his wife Rosmah Mansor were also accused of being involved in the murder of a Mongolian translator, who had helped in the communications with DCNS. The 28-year old Altantuya Shaariibuu was murdered in KL by two former bodguards of the Malaysian first couple.

Both men, who were members of an elite police squad, have been sentenced to hang but the nation is unconvinced as they had no motive to kill her. The question still raging in Malaysia is, who ordered the killing?

The Parisian hearing will not dwell on the Altantuya murder but DCNS is likely to be grilled on her role in the deal.

Altantuya, who was shot in head and exploded with military C4 explosives, has become an international icon symbolising the ruthlessness and desperation in the murky world of international arms wheeling-and-dealing. She is also a reflection of the level of debauchery amongst the Umno elite. Umno is Najib’s party and has ruled Malaysia for 5 decades.

Under the 2000 OECD convention of which France is a party, anyone French individual or company found to be involved in corrupt deals with foreign governments can be punished with 10 years imprisonment and a Euro 150,000 fine. This ruling provided the impetus for the SUARAM move to try and recover taxpayers’ money lost through improper transactions. – Malaysia Chronicle

source: http://www.malaysia-chronicle.com/index.php?option=com_k2&view=item&id=12962:scorpenes-french-lawyers-to-come-to-kl-ahead-of-open-court-hearing&Itemid=2