PROSECUTORS would have a hard time proving Dr Mahathir Mohamad and Anwar Ibrahim guilty for the foreign exchange losses two decades ago due to the lack of key witnesses and documents.

Yesterday, royal commission of inquiry (RCI) secretary Yusof Ismail lodged a police report at Putrajaya based on the RCI findings which implicated the opposition leaders as well as former central bank adviser Nor Mohamed Yakcop. 

Police can begin a formal investigation based on Yusof’s report, which may lead to prosecution at a later date. 

“There will not be a strong case,” said criminal lawyer Rajsurian Pillai. 

“The event took place many, many years ago and it will be hard to prove beyond reasonable doubt they are guilty. 

“Many witnesses are not around or capable of remembering what happened. Many documentations are lost or no longer exist,” said Rajsurian, who is co-deputy chair of the Bar Council constitutional committee.

Cheating requires inducing someone to do something fraudulently and dishonestly. A criminal case would require proof of fraudulent or dishonest conduct.

“It’s hard to prove the elements of such a crime,” Rajsurian added. 

After full investigations by the authorities, the decision to charge those individuals lies with the Public Prosecutor. That position is held by Attorney-General Mohamed Apandi Ali.

The findings of the RCI report, which was presented to Yang di-Pertuan Agong on October 13, were tabled in Parliament yesterday.

The RCI, led by Petronas chairman Mohd Sidek Hassan, had concluded the country suffered losses amounting to RM31.5 billion between 1992 and 1994 due to Bank Negara Malaysia’s forays into speculative foreign exchange (forex) trading.

It further concluded the losses involved a criminal breach of trust on the part of Nor Mohamed, a central bank adviser who was in charge of the forex portfolio at the time.

It was recommended he be investigated under Section 406 or 409 of the Penal Code, which carries a maximum sentence of 10 and 20 years respectively. 

Blame also fell on Dr Mahathir and Anwar, who the RCI said were liable to be investigated for common intention or abetting. 

It was recommended they be investigated under Section 417 or 418 or the Penal Code, which carries a maximum of sentence of five and seven years respectively. Mahathir was prime minister during the period and Anwar, the finance minister. 

“It’s going to be very hard to prove the finance minister misled cabinet. Even in the inquiry, several witnesses were too old or don’t remember what happened in 1992 to 1994,” said Rajsurian.

Former auditor-general Ishak Tadin, 85, was too infirmed to testify during the RCI hearing while then central bank governor Jaffar Hussein died in 1998.

Unlike civil cases, there is no statute of limitations for criminal cases.

According to witnesses’ testimonies during the nine-day hearing that ended September 19, losses suffered 25 years ago appeared to be due a combination of lax forex rules, a lack of administrative oversight and a culture that did not appear to question authority in the face of mounting losses.

Accounts also contradicted among senior government and central bank officials as to how much their higher-ups knew of the losses. 

BNM’s case is unique as there has never been any other central bank that has suffered forex trading losses to such a degree. – December 1, 2017.