S N Nair said the fiasco happened more than 25 years ago and key witnesses would not be around to testify for the prosecution should anyone be charged with criminal offences.
“In a criminal case, the burden of proof is on the prosecution and the standard of proof required to obtain a conviction is ‘beyond reasonable doubt’,” he told FMT.
He said any prosecution of personalities under the present climate would only be seen as “political persecution”.
He said prosecutors must also tender all evidence through witnesses and documents to establish all the ingredients required to prove offences such as cheating or criminal breach of trust.
“No doubt that in a criminal case there is no time limit to investigate and prosecute offenders, but proving will be an uphill task when material witnesses will not be around,” he said.
Nair said if investigating officers were to record statements now, they would discover that some witnesses might find it difficult to recall the sequence of events that happened a long time ago
“It is going to be an absolute waste of time and resources investigating this case. It is akin to closing the barn after the horse has bolted,” he added.
He said the RCI outcome was a good lesson that any issue of public interest, including the 1MDB case, must be investigated and acted upon immediately.
Nair said this in response to the RCI findings which stated that former prime minister Dr Mahathir Mohamad helped in “deliberately concealing” the losses.
The five-man RCI chaired by Mohd Sidek Hassan concluded there were elements of hidden facts and information relating to forex losses suffered by BNM and misleading statements given to the cabinet, parliament and the public.
The report said there was also no further action by the then finance minister Anwar Ibrahim and treasury secretary-general despite being informed by the auditor-general on the total loss of RM31.5 billion between 1992 and 1994.
The commission proposed that the police open investigations into possible criminal breach of trust or cheating by various parties, including Mahathir, Anwar, ex-Bank Negara adviser Nor Mohamed Yakcop, whom the report named as “principally liable for criminal breach of trust”.
The 524-page report also named Daim Zainuddin, who served as finance minister from July 14, 1984, to March 15, 1991, as having aided and abetted Nor Mohamed by leaving BNM “to its own devices”.
Yesterday, Anwar’s lawyers Gurdial Singh Nijar and R Sivarasa said the findings lacked clear evidence as two key players who could have shed light on the issue did not testify.
They were referring to former BNM governor Jaffar Hussein, who held office from 1986 to 1994 but resigned after taking responsibility for the losses. He died in 1998.
The other personality is former auditor-general Ishak Tadin, who was in office from 1986 to 1994. However, he was unable to testify due to memory loss.