Hornbill Unleashed

July 29, 2017

Bid to review AG’s decision – senior lawyer raises ‘charge sheet against PM’

Filed under: Politics — Hornbill Unleashed @ 8:01 AM

Senior lawyer Gopal Sri Ram brought up the purported charge sheet against Prime Minister Najib Abdul Razak regarding the investigation into 1MDB during a hearing at the Federal Court.

Sri Ram, a former Federal Court judge himself, claimed that the charge sheet was issued but it has not been denied.

He said that two people, including former Malaysian Anti-Corruption Commission (MACC) adviser Rashpal Singh, were detained in 2015 in relation to this matter.

“They were alleged to have obtained gratification for committing criminal breach of trust. Two persons were produced before a magistrate for disclosing a charge sheet against the PM. This shows there were already steps taken by the previous AG (to prosecute then),” he said.

Sri Ram said an application for leave for judicial review provided a low threshold, and argued that his client (former law minister Zaid Ibrahim) has passed the threshold.

When pointed by Chief Justice Md Raus Sharif that under Article 145 of the Federal Constitution the decision by the attorney-general was non-justiciable, Sri Ram (photo) said while he agreed it is a general rule and an academic question, the existence of such a charge in this matter showed that the then AG had exercised his discretion.

“He prepared the charge, he decided to prosecute,” the senior lawyer said, adding that if leave is granted, they will produce the evidence on the charge sheet.

At the time, inspector-general of police Khalid Abu Bakar had said that the pair was arrested over reports lodged against Sarawak Report and its founder Clare Rewcastle-Brown for publishing documents on the 1MDB issue.

Prior to this, attorney-general Mohamed Apandi Ali said that a purported draft of a charge sheet against Najib published in Sarawak Report was false, and part of a plot to topple the leader.

The Federal Court was hearing the application by Zaid, former Umno man Khairuddin Abu Hassan and the Malaysian Bar for leave to appeal against Apandi’s decision not to prosecute Najib.

Investigations worldwide

Meanwhile, Tommy Thomas, who represented the Malaysian Bar, told the court that 1MDB has been the subject of investigations and actions worldwide.

However, he said Apandi had decided that there were no grounds for further investigation or to prosecute Najib.

“There are developments happening worldwide on a daily basis till today with the action by the US Department of Justice and the prosecution (and conviction) of several people in Singapore.

“Yet in Malaysia, the AG said ‘I am closing the investigations’. There are prosecutions everywhere except here.

“Even Parliament is not allowed to raise the 1MDB issue where it was recently reported that more than 30 questions by the opposition were not allowed to be debated in Parliament. So the courts are the only avenue for the parties to raise the issue and it should not be shunned,” he added.

Tommy said the rule of law must be allowed in Malaysia as the PM and the AG are not above the law.

“The interest in 1MDB is because it is the tax payers’ money. It is our money and we have the right. If ever there is a case on separation of powers and the rule of law, this is the one,” he said.

Citing Lord Bingham of Britain, the lawyer added that the court can be persuaded to act and intervene for three reasons, namely if it is an unlawful policy, there is a settled policy in question or because the decision was perverse or deemed unreasonable.

Former Malaysian Bar president Ambiga Sreenevasan also referred to Apandi’s press statement in January 2016 exonerating Najib.

“It is not for the AG to do so. The court may only do so (exonerate someone) after a trial. The pronouncement by the AG, as if exonerating the PM, is the duty of the courts,” she said.

The Malaysian Bar posed 13 questions of law to be considered before the Federal Court, while Zaid posed two questions and Khairuddin three.

Senior federal counsel Amarjeet Singh also argued that the discretion of the AG is non-justiciable under Article 145(3).

He said the AG sought clarification when the investigations were held and upon gaining it, he made the decision that there was no offence and there no necessity to request the mutual legal assistance.

The three-member Federal Court bench led by Justice Raus dismissed the application, saying that under Article 145 the decision by the AG was non-justiciable.

Citing a list of cases such Long bin Samad, Tan Cheng Poh and Karpal Singh, Justice Raus said it is clear the exercise of discretion in one way or another cannot be questioned by the courts.

The chief justice also said that the decision by Apandi not to seek the mutual legal assistance in the course of the criminal investigation was also not subjected to a review.

“Hence, we dismiss all the three applications,” Justice Raus said.

Earlier, an application was made to recuse Justice Raus from sitting on the panel but this was dismissed by the CJ himself.

Source : Malaysiakini by  Hafiz Yatim



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