Hornbill Unleashed

April 5, 2017

Court: Bar, others can’t compel AG to act on RM2.6b case

Filed under: Politics — Hornbill Unleashed @ 8:02 AM

zaid-khairuddin-agThe Malaysian Bar and two government critics again failed in their bid to review the attorney-general’s refusal to prosecute Prime Minister Najib Razak over the RM2.6 billion donation and SRC International money.

A three-man Court of Appeal bench, led by Umi Khalthum Abdul Majid, said there was no reason to depart from the findings of the High Court.

“We affirm the decision of the High Court,” she said of the unanimous ruling.

The other members in the bench were Justices Idrus Harun and Abdul Rahman Sebli.

The appellate court did not give any reason why it dismissed the appeal despite a five-hour submission by lawyers.

On Nov 11, Justice Hanipah Farikullah dismissed the leave applications to initiate judicial review by the Malaysian Bar and former cabinet member Zaid Ibrahim and former Batu Kawan Umno deputy chief Khairuddin Abu Hassan.

The trio had challenged AG Mohamed Apandi Ali’s decision to close the case following allegations that the money was deposited in Najib’s bank accounts.

The AG, who is also public prosecutor, had on Jan 26 last year directed the Malaysian Anti-Corruption Commission (MACC) to close investigations into the cases.

Hanipah, in three separate judgments, said the courts were not the avenue for those unhappy with the decision of the AG not to prosecute any criminal case to seek redress.

“The avenue of the person being unhappy with his (AG) decision is elsewhere, not in the courts,” she said.

Hanipah, in her judgment, also said she was bound by a long line of Federal Court rulings why the decision of the AG not to institute criminal proceedings under Article 145(3) of the constitution, could not be reviewed by the courts.

That provision states that the AG has the discretion to institute, conduct and discontinue any criminal proceedings.

Hanipah said there was also no conflict of interest when Apandi decided not to frame charges against the prime minister on 1MDB and its related issues.

The Malaysian Bar had applied that the solicitor-general take over the investigation papers and decide whether Najib should be charged.

Zaid, a former de facto law minister, wanted the court to direct Apandi to charge Najib for corruption and criminal breach of trust while Khairuddin wanted a royal commission of inquiry to be set up to guide the AG over investigations into the RM2.6 billion and SRC International.

Lead counsel Tommy Thomas today said this case was important as the AG had exceeded his authority by exonerating the prime minister of any wrongdoings.

He said while foreign nations investigated and prosecuted those linked to the RM2.6 billion donation, 1MDB and SRC International, none in Malaysia were punished for the financial scandal which originated here.

“The Bar and the Bench have a heavy responsibility and cannot remain idle,” he added.

Tommy said it was a myth that the AG was not subject to judicial scrutiny when the prime minister and ministers could be hauled up to court by way of judicial review.

Lawyer Ambiga Sreenevasan, who appeared with Tommy, said the AG exceeded his authority when he asked the MACC to close the investigation papers over the RM2.6 billion donation.

“MACC had only asked assistance from the AG for investigation officers to collect evidence to complete the probe but he refused,” she said.

Lawyer Gopal Sri Ram, who appeared for Zaid, said Hanipah was wrong to declare that the court could not provide the remedy sought by his client on the grounds that the AG’s decision was not justiciable.

He said the AG’s discretion under Artice 145 (3) could be challenged due to new legal pronouncements in the Federal Court.

“Unfortunately, the judge was mechanical and robotic in her approach. She applied the wrong test in coming to her decision.”

Sri Ram said two former AG’s chambers officers were produced in court in August 2015 for allegedly leaking charge sheets that revealed Najib was slated to be prosecuted for corruption and criminal breach of trust.

“This shows the AG’s office had consented to prosecute the suspect (Najib) and could not retract it.”

He said Najib should have been charged and it should have been left with the court whether to acquit or find him guilty.

Mohamed Hanif Khatri Abdulla, who represented Khairuddin, said Apandi was appointed AG to replace Abdul Gani Patail on July 28, 2015 when a task force was formed earlier to investigate the cases.

“There was a conflict of interest as Apandi was appointed by the king on the advice of the prime minister. Apandi in January last year cleared Najib of any criminal wrongdoing.”

Federal counsel Amarjeet Singh said the three filed suits as they were unhappy with the AG’s decision.

“Under Article 145 (3), he has the absolute discretion and no party can challenge this in a court of law.”

Malaysian Bar president George Varughese said he would seek legal advice on whether to file an appeal to the Federal Court while Sri Ram expressed confidence that Zaid’s solicitors would obtain further instructions.

Hanif said Khairuddin would appeal the decision.

Source : V Anbalagan @ FMT Online



1 Comment »

  1. Court of Appeal bench, said there was no reason to depart from the findings of the High Court then please state the court of appeal`s nature.

    Comment by Salim — April 6, 2017 @ 4:35 PM | Reply

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