THE conclusion by the Royal Commission of Inquiry (RCI) chairman Mohd Sidek Hassan that the central bank suffered forex losses amounting to RM31.516 billion between 1991 and 1994 carries no legal weight, lawyers say.

Mohd Sidek, who heads the six-member RCI, made that conclusion just before the end of the first day of the inquiry yesterday.

He based it on the statement by former Bank Negara Malaysia (BNM) accounts manager Abdul Aziz Abdul Manaf that the losses were due to trading transactions that were not reported to the central bank authorities.

“At this juncture, it does not carry legal weight as the RCI can only make determinative findings after hearing all witnesses and submissions, just like any other inquiry process,” said Surendra Ananth, the Malaysian Bar Constitutional Law Committee co-chairman .

“I believe that statement was taken from the first witness statement. Only the chairman made that ‘conclusion’, without consulting with the other members. I think the headline of the (news) reports are misleading,” he said.

Surendra noted that it was “very unusual” for a member of a judicial or “quasi-judicial” body to be making such prejudicial findings before the conclusion of the inquiry.

“The way I see it, this seriously undermines public confidence in the chairman’s impartiality, which could give rise to further grounds for recusal,” he said.

Yesterday’s RCI proceedings saw its first three witnesses called. Other than Aziz, the RCI also heard statements from former BNM auditor Ahmad Hizzad Baharuddin and former BNM assistant governor Abdul Murad Khalid.

Lim Wei Jiet, deputy co-chairperson of the Bar’s Constitutional Law Committee, noted that the RCI has still some ways to go.  

The public inquiry will meet eight more times before a report on its findings is tendered to the King on October 13.

“Technically the RCI cannot ‘conclude’ anything because proceedings are still ongoing. If not people will perceive there is a pre-determination of facts and perceptions of bias may surface.”

“The rules of evidence don’t apply in RCIs unlike courts,” said Lim, who is an advocate and solicitor of the High Court of Malaya.

“Having said that, basic procedural fairness must be complied, just like any public body – if not, it can be grounds for judicial review,” he added.

Part of the RCI’s term of reference is to investigate whether there was an attempt at a cover-up and whether BNM’s forex trading activities had contravened the Central Bank Ordinance 1958 or other laws.

It is tasked to also recommend suitable action against the parties it finds to be directly and indirectly involved in the scandal, and the measures to adopt against the recurrence of such an incident.

Constitutional lawyer Syahredzan Johan said the RCI does not have legal powers beyond making recommendations and presenting its findings to the king.

“The findings of the Royal Commission of Inquiry are just that; findings of the RCI. It does not amount to anything more than that. You cannot use what is said in the RCI in criminal or civil proceedings in court, for example,” he said.

Syahredzan pointed out that Section 11 of the Commission of Inquiries Act states that no evidence in an RCI can be used against the person giving that evidence in any civil or criminal proceedings. 

“If something is uncovered, such as the possibility of criminal wrongdoing, it falls upon the Attorney-General to initiate criminal proceedings separately and everything must be proved in court again,” he said.

The RCI will sit again on Thursday. – August 22, 2017.