Reports by RAHIMY RAHIM, RAGANANTHINI VETHASALAM, FARIK ZOLKEPLI, ZAKIAH KOYA and GERARD GIMINO

KUALA LUMPUR: There is a basis to launch a criminal investigation against former Prime Minister Tun Dr Mahathir Mohamad, proposed Royal Commission of Inquiry (RCI), which would examine issues surrounding the sovereignty of Batu Puteh, Middle Rocks and South Ledge.

In a highly redacted and declassified report tabled in Parliament, the Commission proposed that a criminal investigation be opened under section 415(b) of the Penal Code, with enforceable sanctions under section 417 of the same code .

“In the context of section 415(b), it must be shown that Dr Mahathir intentionally misled the Cabinet and deliberately influenced the government to abandon these requests, despite the fact that the decision was made unilaterally on its own without Cabinet approval,” the Commission said in the report released yesterday.

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The Commission also pointed out that if the Cabinet had received the relevant policy documents for the International Court of Justice (ICJ) and the written opinions of international consultants, it is possible that the Cabinet would have arrived at a different view regarding the two requests.

“In this case, Dr Mahathir may have deliberately influenced the Cabinet to abandon the applications, even though this contradicted the views of international consultants who believed that there was a reasonable likelihood of success for the applications,” notes the report.

The Commission also believes that a criminal investigation can be initiated against Dr Mahathir under Section 418 of the Penal Code.

“The Commission finds that an investigation under this provision is warranted based on the facts that he misled the government, knowing that this could potentially result in an unjustified loss to the Malaysian government.

“As Prime Minister, he had a legal duty to protect the interests of the country,” the Commission said.

He pointed out that the elements required to prove an offense under section 418 include that the accused had deceived a person, that he had a legal duty to protect the interests of that person, that the cheating was linked to this obligation and that the accused knew that his actions were likely to cause unjustified loss to the person involved.

In its findings, the Commission pointed out that Dr Mahathir may have misled the government, which includes Cabinet members, into deciding not to pursue the two requests.

“This deception relates to his duties, for which he had a legal obligation to safeguard Malaysia’s interests.

“As Prime Minister, he was responsible for protecting and maintaining the sovereignty and well-being of the nation at all times.”

The report notes that Dr Mahathir caused undue loss to the Malaysian government by deciding not to act on the demands.

The Commission also recommended that the RCI Secretary file a police report to initiate the investigation.

In the dissenting opinion, committee members Tan Sri Zainun Ali and Datin Dr Prof Dr Faridah Jalil expressed that Dr Mahathir’s actions in deciding not to act on the two requests amounted to a dereliction of duty rather than to a criminal offense.

The Commission said the loss of sovereignty over Batu Puteh, decided by the ICJ on May 23, 2008, should serve as a lesson, pointing out that weaknesses, carelessness and a complacent attitude in matters involving national sovereignty, as seen in this matter, must not be repeated.

“It is also a lesson that a simple letter requesting information from an external party, accompanied by the written response provided, can at any time be used as evidence by external parties to assert their rights and sovereignty on the territory of the nation.

“Careless and ill-informed statements can be used by opponents and backfired.

“Every action and decision regarding political issues involving sovereignty and national interests must be taken carefully and in accordance with the law,” the Commission said.