PUTRAJAYA: The 18-month battle by the Malaysian Bar and two government critics to review the prosecutorial power of the attorney-general (AG) in refusing to frame charges agains Prime Minister Najib Razak over the RM2.6 billion donation has come to an end.
The Federal Court, in dismissing their leave applications, today affirmed the findings of the High Court last year that the A-G’s discretion could not be questioned.
A three-man bench chaired by Chief Justice Raus Sharif said the issue was settled following a series of past cases.
“It is a clear exercise of discretion and his (AG) power cannot be questioned in court.
“It is not only a good law but a good policy,” he said of the unanimous ruling.
Others in the bench were Chief Judge of Malaya Ahmad Maarop and justice Azahar Mohamed.
Raus said otherwise each time the AG made a decision, he would be called up to give his reason in court.
“Then it will be the court and not the AG who will exercise his power under Article 145(3) ,” he said, adding that this could not be the intention of the framers of the Federal Constitution.
That provision states the AG has the discretion to institute, conduct and discontinue any criminal proceeding.
Raus said the AG’s decision not to extend the legal mutual assistance to the Malaysian Anti-Corruption Commission to collect evidence outside Malaysia was also not reviewable.
“As such, the applications (by the three) is not amenable to judicial review,” he said.
Earlier, lawyer Gopal Sri Ram, who represented former cabinet member Zaid Ibrahim, said the current AG Mohamed Apandi Ali could not review the decision of his predecessor who had decided to frame charges against Najib.
Lawyer Mohamed Haniff Khatri Abdulla, appearing for former Batu Kawan Umno deputy chief Khairuddin Abu Hassan, said the AG’s discretionary power should be reviewed as past cases were not applicable in the present scenario.
“When our courts made a ruling on the AG’s authority some 30 years ago, the holder of the position was a cabinet member who could be questioned in Parliament,” he said.
Since then, he said the AG was a civil servant or appointed on contract.
Lawyer Tommy Thomas said the law in other countries had developed and it was time for the Malaysian courts to depart from its present stand.
“We are 60 years into Merdeka and this is a fit and proper case for a review,” he said.
Government lawyer Amarjeet Singh said the legal position was the same whether the AG was a civil servant or politician.
He said Apandi’s press release that Najib did not commit any offence was based on outcomes of MACC investigations.
“However, the three applicants are also asking for action based on what is happening outside Malaysia,’ he said.
In April, a three-man Court of Appeal bench, led by Umi Khalthum Abdul Majid, dismissed the appeals by the three against a High Court decision made last November.
Justice Hanipah Farikullah dismissed the leave applications to initiate a judicial review by the Bar, Zaid and Khairuddin.
The trio had challenged Apandi’s decision from March last year to close the case following allegations that RM2.6 billion was deposited into Najib’s bank accounts.
The AG, who is also public prosecutor, had, on Jan 26 last year, directed the 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 could not be reviewed by the courts.