I read with interest the many comments surrounding the articles reporting on the recent settlement agreed with Goldman Sachs and the Attorney-General over the 1MDB investigation.
Amazingly, many people are crediting this result to the previous Attorney General, Tan Sri Tommy Thomas (Tommy). I cannot for the life of me fathom why they would think that the efforts of Tommy had anything to do with this result.
Let’s look at history:
Tommy laid the charges, but most certainly was not the person responsible for the investigation into the matter or Goldman Sachs. He assessed the investigation materials (the work of others) and laid the charges based on that work.
He then set about negotiating a settlement, where his real efforts came into play. Let’s not forget that the negotiations stalled with Goldman Sachs laying down the terms that they were prepared to accept – that is USD $1.9 billion. This was not acceptable to the Malaysian Government; however, it appears that Tommy did nothing much to progress the matter or was entirely unsuccessful in bring it past the terms that Goldman Sachs were prepared to dictate. He left the matter with a trial date set with no further progress on settlement or achieving a result that would be satisfactory.
It is our current Attorney General, Tan Sri Idris Harun (Idrus) that gave this matter priority and chose not to sit back and not have the case tested over years in Court.
Remember that Idrus only took the office of the Attorney General in mid-February this year. Since taking office, he has obviously given this matter the highest priority – he did not sit back and do nothing. He handled the matter expeditiously, especially considering the pandemic with lockdowns imposed in Malaysia in late March. This was an immense effort on his part.
Idrus appraised the matter and identified the risks of tying up the Court system for years on end through numerous arguments to muddy the waters and stall an unfavourable decision. Goldman Sachs would have gone to great lengths to introduce doubt, in an attempt to escape a guilty verdict. Even if the charges were proven, the verdict would have been followed by years of appeals. Make no mistake, Goldman Sachs has deep pockets and can afford to litigate the matter and draw it out for a very long time.
So, it is our current Attorney General, Tan Sri Idrus Harun, who identified the risks to the Court system and expense to the public who have already suffered so much over this matter and took the fight back to Goldman Sachs.
Even the US Department of Justice was seeking only a settlement of USD $2.5 billion from Goldman Sachs over this matter.
Idrus fought hard to bring Goldman Sachs down off their “high horse” and consider the far higher sum of USD $3.9 billion (which is USD $1.4 billion more than even the US DoJ were seeking), and made Goldman Sachs realise that this was the only settlement offer that is reasonable and that would be accepted.
Where Tommy had been unable to make Goldman Sachs consider other than the terms that they dictated, Idrus refused to let Goldman Sachs dictate terms and made them come to the negotiating table with a realistic number.
Again, it must be pointed out that this is a spectacular result for Malaysia. It frees up literally years of the Court’s time, as well as other enormous resources. It is not only the Court that is tied up in proceeding to trial – it is the investigators, who have to spend a huge amount of time preparing the case and their evidence, witnesses who have to leave their employment to attend Court and give evidence, and experts who have to devote hours if not days of time to analysis and providing evidence. Not to mention the huge hours spent by lawyers who must be paid for their efforts on both sides of the matter.
The AG had to weigh up the long term impacts of a trial. These include public interest, the reputations of all involved on the side of the prosecution (not only the Government but those involved in bringing to trial to Court), and the massive resources required. What must also be remembered is the ongoing relationship with big companies – Malaysia still needs engagement with big business and expertise in the future.
In the bigger picture, a trial would have been more costly to Malaysia in pure costs as well as lost productivity in other areas and not to mention long term reputational harm.
Given the short span of time in office, for the AG to look into all these as well as the other major high profile cases of the docket, was an immense job and a lot of responsibility – and he has done extremely well and he simply deserves a Big Thank You for his efforts.
So let’s recap – Tommy may have laid the charges, but did not give the negotiations the required effort to bring Goldman Sachs to the table on anything other than the terms that they themselves dictated.
It is Tan Sri Idrus Harun who has put in the real effort to make Goldman Sachs consider terms other than their own, and reach a settlement, saving the country a lot of time and effort as well as money.
Give credit where it is due and let’s not politicise the herculean efforts made by the AG!!
R Kris (Practicing lawyer)
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