KUALA LUMPUR – September 23, 2015: Datuk Seri Najib Razak could not be prosecuted in a foreign country as long as he remains the country’s prime minister, says a legal expert.
Professor Salleh Buang when contacted yesterday said the premier enjoys the privilege from such a prosecution as a derivative of state (sovereign) immunity.
“Sovereign immunity means that State A (a sovereign and independent state) cannot be tried for crimes it may have committed by a court of another State (State B) without State A’s consent.
“This is an example of sovereignty immunity which is reciprocal in nature and by extension of that principle, a head of government (prime minister) still holding office enjoys similar immunity,” he said.
Salleh gave the explaination to The Mole in response to a statement by Tun Dr Mahathir Mohamad on Sunday that Najib may face prosecution overseas for alleged improprieties related to the handling of state-own investment firm 1Malaysia Development Berhad (1MDB).
Dr Mahathir said the probe into 1MDB for the alleged money-laundering activities may open Najib to arrest abroad if any wrongdoing is proven.
New York-based daily Wall Street Journal had earlier reported that the United States Federal Bureau of Investigation (FBI) has launched an investigation into 1MDB.
Previously, the Swiss authorities were also reported to have frozen 1MDB’s funds in Swiss banks amid investigations into the company.
Commenting on Najib’s entitlement to the immunity, Salleh stressed that the privilege is enjoyed as long as he is in office.
Salleh however clarified that despite the immunity for Najib, the FBI has the jurisdiction to investigate 1MDB.
“FBI has the right to probe into 1MDB if the alleged money laundering offences take place in US territory or if they are crimes subject to US laws which have extra-territorial effect.
“If Najib is subjected to such investigation and (assuming later on) charged with the offence of money-laundering under US law, then his lawyers would probably invoke the immunity issue.
“However, the legal landscape may be different if the prosecution is not commenced by the US authorities until later after the prime minister has left office,” he added.
Sharing the same outlook as Salleh on international prosecution against Najib was blogger Zakhir Mohammed, better known as Big Dog.
He wrote in a blog posting on Monday that the Head of State and Head of Government enjoy the immunity blanket from prosecution that is rationae materiae (functional immunity) under the international law.
Zakhir argued that Najib could not even be prosecuted at the International Criminal Court (ICC) in the case of 1MDB.
“ICC is incepted to try four types of international crimes; genocide, crimes against humanity, war crimes and the crime of aggression.
“It is also four these hedious crimes where the nation that the leader resides or rule is unable to take them, to face the law.
“Malaysia is neither a signatory to the treaty of the ICC nor the Rome Statute,” he wrote.