The choice to prosecute or not is granted solely to the Attorney-General (AG) under the Federal Constitution and cannot be challenged in court, lawyers for the government’s top legal officer asserted today.
There can be no conflict of interest for the AG as alleged by the Malaysian Bar when he acted in accordance to his constitutional role and decided not to pursue legal action after clearing the prime minister of any wrongdoing over an alleged transfer of funds from 1 Malaysia Development Berhad (1MDB), according to senior federal counsel Amarjeet Singh.
“They are saying that he’s appointed Attorney-General [by the Yang di-Pertuan Agong] on the advice of the Prime Minister and therefore there’s a conflict of interest.
“We are saying there’s no conflict of interest on the grounds that Article 145(3) has committed in the hands of the Attorney-General the sole power exercisable at his discretion to institute or not to institute criminal proceedings.
“This power is his and his alone, so no conflict of interest,” he told reporters here after emerging from a lengthy five-hour-long hearing in chambers.
Amarjeet had led a legal team from the Attorney-General’s Chambers to argue against the Malaysian Bar’s judicial challenge against the AG’s decision not to press charges.
Amarjeet also said the AGC had argued that the Malaysian Bar has no legal standing to cite “public interest” in filing this lawsuit to challenge the AG’s decision, as the AG himself was acting on the public interest when deciding on whether to prosecute.
“The other thing we submitted on was the Bar has got no locus standi to institute such proceedings in the public interest on the grounds that Article 145(3) has conferred on the AG to exercise that discretion in the public interest.
“Because they are saying they are bringing it in the public interest, but we are saying you cannot challenge because the AG is the one who is already exercising public interest in the matter, and so the constitutional provision will override the provisions of the LPA (Legal Profession Act),” he added.
High Court judge Datuk Hanipah Farikullah has reserved judgment to be delivered at a date that has yet to be fixed, he confirmed.
Lawyers Tommy Thomas, S. Ravindran and Datuk Ambiga Sreenevasan today presented legal arguments on behalf of the Malaysian Bar.
In the written submission seeking the court’s nod for the judicial review to proceed, the Malaysian Bar had highlighted, among other things, that the AG had advised the PM on whether to answer questions in Parliament relating to a sum of RM2.6 billion deposited into the latter’s accounts amid an ongoing probe by the Malaysian Anti-Corruption Commission on the same matter.
“With the greatest of respect to the AG, it is our respectful submission that there is a clear conflict of interest when the AG qua advisor to the PM and the Government in relation to the very matters that form the investigation papers also performs the role of the Public Prosecutor in determining whether to institute criminal proceedings against the PM,” the submission said.
The Malaysian Bar had also cited two 1979 court decisions by the Privy Council and by the Federal Court to rebut the AGC’s contention that the AG’s exercise of discretionary prosecutorial powers was non-justiciable, saying that the exercise of such powers “may be challenged if it is shown that the discretion was exercised unlawfully.” Matters that are non justiciable are matters that cannot be decided by a court of law.
The Malaysian Bar had on March 14 filed its application for leave for judicial review against the Attorney-General and the Malaysian Anti-Corruption Commission (MACC).
The Malaysian Bar is seeking a court order to set aside the AG’s January 26 decision to clear the prime minister of wrongdoing and to instruct the MACC to close its three investigation papers on the alleged transfers of RM2.6 billion and SRC International Sdn Bhd’s funds into the PM’s accounts.
It also wants the court to disqualify the AG from making any further decision on matters covered by the MACC’s investigation papers as he had reportedly provided advice on related matters to the prime minister.
The Malaysian Bar also sought for court orders — upon Apandi’s disqualification from such decisions — which would enable the Solicitor General to exercise the AG’s functions in relation to MACC’s request for mutual legal assistance to complete its probe of the RM2.6 billion sum.
It also wanted court orders to enable the Solicitor General to reconsider MACC’s recommendations in their investigation papers on these cases and to decide whether to press charges, as well as to enable the MACC to continue their probe in these cases without obstruction or interference.
On January 26, Apandi told a press conference that he found the prime minister did not commit any criminal offence in relation to the SRC International Sdn Bhd and RM2.6 billion cases, claiming that the RM2.6 billion was a donation from the Saudi royal family and that Najib was not aware that money had been transferred into his personal accounts from SRC International.