Attorney-General (AG) Apandi Ali exceeded his role when he acted as Prime Minister Najib Razak’s “defence lawyer” over the RM2.6 billion donation, SRC International and 1MDB cases.
This argument was put forward in court by lawyer Haniff Khatri Abdulla, representing sacked Umno Batu Kawan Division Vice-Chief Khairuddin Abu Hassan in the latter’s bid to get leave to challenge the AG’s “no prosecution” decision on the three cases.
“The AG failed to consider there was prima facie evidence — in the RM2.6 billion donation, SRC International and 1MDB cases — from his press statement,” he said.
“The AG said that Najib had received a sum of USD681 million in his account, later partly returned to the donor.”
The lawyer said corruption is defined in the Malaysian Anti-Corruption Commission (MACC) Act. “The ingredients for a criminal charge have been fulfilled because a donation is also a bribe.”
In January, he recalled that Apandi told a news conference that Najib did not commit any criminal offence.
“I am satisfied with the findings that the funds were not a form of graft or bribery,” Apandi was quoted as saying.
“There was no reason given as to why the donation was made to PM Najib. That’s between him and the Saudi family.”
If Najib had returned the remaining money to the “Saudi royal family”, he should be given a chance to defend himself and not the AG, argued the lawyer.
He said the AG’s role was merely to consider, based on evidence, whether there was sufficient evidence to press charges.
“His decision to order MACC to close the investigation papers was therefore tainted with unreasonableness and illegalities, having exceeded his jurisdiction,” said Haniff.
Khairuddin also raised in his submission that he has locus standi (legal position) to challenge the AG as he was an aggravated party as a result of the latter’s decision.
“He’s still facing a charge for attempting to sabotage the financial institutions of the country by lodging police reports across Asia and Europe over claims of financial irregularities in 1MDB,” said Haniff.
Senior Federal Counsel Amarjit Singh, representing the AG, contended that the latter’s decision on whether to initiate a criminal proceeding cannot be challenged.
“Under Article 145(3) of the Federal Constitution, the AG has the power, exercisable by discretion, to start or end a criminal proceeding.
“Previous cases in the apex courts have ruled that the AG’s decision cannot be challenged in a judicial review. Khairuddin’s review challenge is frivolous and vexatious.”
Justice Hanipah Farikullah deferred the court’s decision until another judicial review hearing against Apandi by the Bar Council had been disposed of.
The court is expected to hear on Aug 26 the Bar Council’s bid to get leave.
Former de facto Law Minister Zaid Ibrahim, Khairuddin and the Bar Council filed judicial reviews separately to quash Apandi’s “no prosecution” decision on the three cases.
Khairuddin and senior lawyer Matthias Chang were charged last year with attempting to sabotage the banking and financial services of Malaysia.
They were said to have committed the “act” in various countries such as France, England, Switzerland, Hong Kong and Singapore between June 28 and Aug 26 last year.
Ho Kit Yen