Malaysian Bar seeks judicial review on AG clearing Najib

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KUALA LUMPUR: ​The Malaysian Bar has commenced legal action in the High Court to seek judicial review on certain decisions by the Attorney-General (AG) on 26 January 2016, under Article 145(3) of the Federal Constitution, it said in a statement. “The AG decided that no criminal offence has been committed by the Prime Minister in respect of three investigation papers submitted by the Malaysian Anti-Corruption Commission (MACC).”

The investigation papers were reportedly in relation to the transfers of the “RM2.6 billion donation” and funds from SRC International Sdn Bhd into the personal bank accounts of the Prime Minister, added Malaysian Bar President Steven Thiru.  “The AG also instructed the MACC to close the three investigation papers.”

The Malaysian Bar is of the view that the discretionary prosecutorial powers conferred on the AG by Article 145(3) of the Federal Constitution are not absolute or unfettered, and the exercise of these powers can be challenged in a judicial review action. “The scope and ambit of the discretionary prosecutorial powers, and whether these powers were exercised in accordance to law on the facts of any given case, should be determined by the courts,” said Thiru. “This matter is of critical public interest.”

“There should be no usurpation of the judicial powers of the courts, as it is for the courts — and not the AG — to decide on the innocence or guilt of a suspect in respect of any alleged crime.”

The independence of the MACC, in discharging its statutory duties under the MACC Act 2009 as an investigative and enforcement agency, must be protected, and any impediment to the performance of these duties must be prevented, argued Thiru. “This matter involves serious allegations of financial impropriety, including allegations of loss of public funds, and has dire implications on the administration of justice.”

“It must therefore be resolved in a manner consistent with the principles of the rule of law.”

Briefly, the Malaysian Bar’s judicial review application includes and seeks several orders:

Firstly, set aside the AG’s decisions of 26 January 2016 exonerating the Prime Minister and instructing the MACC to close its three investigation papers; and

Secondly, disqualify the AG from making any further decision as regards matters covered by the MACC’s three investigation papers, as he is reported to have advised the Prime Minister on matters relating to these investigation papers.

Upon the said disqualification, said the judicial review application, the Malaysian Bar seeks orders that would facilitate two matters viz.

(a) enable the Solicitor-General to exercise the functions of the AG in relation to the request by the MACC — under the Mutual Assistance in Criminal Matters Act 2002 — for the MACC to complete its investigations in respect of the “RM2.6 billion donation”; and

(b) enable the Solicitor-General to reconsider the recommendations made by the MACC in the three investigation papers, in deciding whether to exercise the discretionary prosecutorial powers under Article 145(3).

Thirdly, the judicial review application seeks to enable the MACC to continue with its investigations into the matters covered by the three investigation papers, without any obstruction or interference.

The Malaysian Bar went on to explain that it filed the judicial review action in furtherance of its statutory duty to uphold the cause of justice without regard to its own interests or that of its members, uninfluenced by fear or favour. “It’s also pursuant to the resolutions adopted by the Malaysian Bar at its Extraordinary General Meeting held on 12 September 2015.”