Open Letter
https://www.thestar.com.my/news/nation/2018/08/12/equanimity-will-be-sold-to-the-highest-bidder/
Refer to The Star Newspaper dated 12 August 2018, I would like to enquire whether had Attorney General Chamber(AGC), as public legal adviser, take proactive action to advise the government on the matter?
I understand that AG had appointed S. Selvaratnam, Jeremy Joseph, and Ong Chee Kwan to represent the Claimants(Malaysia), along with senior federal counsel Alice Loke. I am glad that AG Tommy Thomas has made the rightd ecision. The purpose is none other than to have greater chances of winning the case since they are expert in the Admiralty Law.
However a few days later, Tun Dr. Mahathir's (Prime Minister) decision to go ahead auction off the yacht before trial is blatantly disrespect to law.
I do not know under which law empowered Indonesia to seized the private yacht but handling over to Malaysia does not imply transfer of ownership.
Presumed Tun Dr. Mahathir does not know AG had already appointed lawyers for the case and any law related to the matter. then shall AGC upon knowing Tun Dr. Mahathir action forthwith acknowledge him what is appropriate, otherwise (failure to do so- omission)it is a Tort.
I suggest AG Tommy immediately divert Tun Dr. Mahathir to the right track. On top of that, I would like to suggest the claimants representatives negotiate with the defendant to make an agreement, mutually agreed to make use of the yacht for commercial purposes (lease/ rent out)while it is under the custody of Malaysia without effects on the ongoing court case since the law suit is expected to the long winded one. The rationale from financial perspective are;
1. Lighten the financial burden of monthly 2 millions ringgit maintenance cost.
2. minimum loss for Claimants in the end of the law suit, whether win and sell if off or lost to the defendant includingp enalty for opportunity cost.
Financial trail and proof of the yacht ownership given by United States of America's Department of Justice (DoJ) may only serve as evidents for the case but not a conviction, thus it shall have no effects on the ownership of the yacht.
Since the yacht is currently within Malaysia sovereignty and custody thus it shall go through proper legal procedures before the claimant know whether entitle to sell it off or not.
The defendant may issues estoppel to prevent the claimant from selling it off. It is basic understanding that you can'ts ell what is not yours. Common law precedent Barker v Midstyle Nominees Pty Ltd [2014] WASCA 75, is an
example.
In the addition, putting the yacht in auction is contravened to Act 268 Bills of Sale Act 1950, Clause 9. (1) No sale by the grantee of any chattels so seized or take possession of as aforesaid shall be made otherwise than by public auction, conducted by some person duly licensed under any statutory provision in Peninsular Malaysia for the
licensing of auctioneers.
(2) Any sale made in contravention of this section shall be absolutely void, and any person aiding or abetting such sale shall be liable to a fine not exceeding one hundred ringgit.
Malaysia received the yacht from Indonesia but whether Indonesia have the right to seized and then transfered to the custody to Malaysia is yet another question.
What made Malaysia government acting disregard and disrespect law?
ei incumbit probatio qui dicit, non qui negat (“the burden of proof is on the one who declares, not on one who denies”). The principle also found in the International human right under the UN's Universal Declaration of Human Rights, Article 11, The presumption of innocence is the principle that one is considered innocent unless proven guilty. This is the very basic tenet of democracy principle.
May I know are we still a democratic country?
Where is the Westminster System in Malaysia? Aren't the separation of power (Legislature, Executive and Judiciary)
should be balance?
Should Judiciary intervene when Executive cross the line?
I understand that AG is under Executive but it also because of this that AG should diligently discharge your duty to ensure the Executive stay within the boundary.
I would like to declare that I am a non-partisan and certainly have nothing related to the defendant (Jho Low) in this
case and 1MDB.
Reference:
https://en.m.wikipedia.org/wiki/Presumption_of_innocence
*The blog is solely created and maintaining with my own resource only. No obligation but any amount of ex-gratia to support the continuation of my writtings is appreciated.
Maybank (Malaysia)account number : 1643 1529 3268 (Tay Kian Guan)
Maybank (Malaysia)account number : 1643 1529 3268 (Tay Kian Guan)
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