Appointing ad hoc prosecutor in 1MDB case is client-lawyer privilege, says AG

Lawyer Sulaiman Abdullah has been appointed ad hoc prosecutor by the AG. (Bernama pic)

PUTRAJAYA: The attorney-general (AG) need not disclose lawyer Sulaiman Abdullah’s appointment letter as ad hoc prosecutor as this is a client-solicitor privileged communication, the Court of Appeal heard today.

AG Tommy Thomas said in fact there was no right in the Malaysian adversarial legal system for any party to produce appointment letters for the opposing side.

“This is a fundamental point and the client-solicitor privileged communication is protected under Section 126 of the Evidence Act,” he said before a three-member bench chaired by Zabaraih Mohd Yusof.

Thomas said in a criminal case, the prosecution never asks lawyers to reveal their letters of appointment from their clients.

“The public prosecutor never asks lawyers to produce letters from accused persons (client) as we have no business to do so,” he said.

Similarly, in a civil case, the plaintiff’s counsel never questions the lawyers from the other side to prove that he had been engaged by the defendants, unless one had not renewed the annual practising certificate.

Thomas said this in response to submissions by lawyers for Najib Razak who is appealing against the ruling of the High Court last year that the defence was not entitled to obtain a copy of Sulaiman’s appointment letter.

On Aug 31, Sulaiman and retired judge Gopal Sri Ram were appointed by Thomas as ad hoc prosecutors to handle the SRC International and 1MDB cases respectively.

Thomas also said the requirement of producing the letter also went against the Legal Profession Act.

Further, Thomas today said a media release was issued to make public the appointment of Sulaiman and the authenticity of the statement was not disputed by Najib.

Earlier, lawyer Harvinderjit Singh said the AG, who is also the public prosecutor, appointed lawyers as ad hoc deputy public prosecutors (DPP) for specific tasks under the Criminal Procedure Code (CPC).

“Under Section 397 of the CPC, the appointment must be in writing,” he added.

Harvinderjit said the defence asked for the letter to be produced but the prosecution replied it was classified under the Official Secrets Act (OSA).

“Historically, it has been produced. Is it a threat to national security to reveal the letter?” he asked.

Meanwhile, lawyer Muhammad Shafee Abdullah said Sulaiman’ s appointment made him a public officer and it must be made public.

“Sulaiman’s appointment is of public interest and my client (Najib) wants to know who is prosecuting him,” he said.

He said the client-solicitor relationship only applied to lawyers, not to a DPP.

“To appoint an ad-hoc DPP, one must only be a fit and proper person. That person then belongs to the august body of the Attorney-General’s Chambers,” he said.

Shafee said the appointment of ordinary DPPs were gazetted and made public.

In reply, Thomas said he was no longer relying on the OSA argument for the non-disclosure of Sulaiman’s appointment letter.

He said Sulaiman could not be compared with other ordinary DPPs as he was still a lawyer and was only a public servant in the SRC case.

“He need not show the document. I, as the public prosecutor, also need not reveal anything. An ad hoc DPP need not be gazetted,” he added.

On Dec 18, High Court judge Mohd Nazlan Mohd Ghazali said there was no legal requirement that Sulaiman’s letter of authority must be given to Najib but he may show it to the court.

Najib was charged in July with money laundering and CBT offences in the transfer of RM42 million into his account from former 1MDB unit, SRC International.

He is also accused of abusing his power as the prime minister by giving government guarantees on SRC International’s RM4 billion loan from the Retirement Fund Inc.

Najib is also appealing against the dismissal of a gag order and refusal of the prosecution to supply all documents that will be relied on in the SRC case.

Hearing continues.